VALEROSO vs. PEOPLE .......................................

2
CACAO vs. PEOPLE ............................................. 6
CARINO vs. PEOPLE ........................................... 11
PEOPLE vs. RULEPA ........................................... 14
PEOPLE vs. TANDOY .......................................... 22
BORILLO vs. CA ................................................. 24
RAYMUNDO vs. LUNARIA .................................. 31
SPS. AMONCIO vs. BENEDICTO.......................... 34
ESTATE OF LLENADO vs. LLENADO .................... 38
MARQUEZ vs. ESPEJO ........................................ 42
NERI vs. SENATE ................................................ 48
BORDALBA vs. CA .............................................. 63
GONZALES vs. CA ............................................... 67
ALVAREZ vs. RAMIREZ ....................................... 72
REGALA vs. SANDIGANBAYAN ........................... 74
REPUBLIC vs. KENRICK DEVELOPMENT ............ 84
PEOPLE vs. GALVEZ ........................................... 87
TAN vs. RODIL ENTERPRISES ........................... 95
CAPILA vs. PEOPLE ........................................... 100
IN RE: PETITION FOR CANCELLATION ............. 103
PEOPLE vs. MORES ........................................... 105
PEOPLE vs. GUMIMBA ...................................... 108
GERALDO vs. PEOPLE ....................................... 118
TALIDANO vs. FALCON MARITIME ................... 122
JOSE, JR. vs. MICHAELMAR .............................. 127
BARCELON vs. CIR ........................................... 133
PEOPLE vs. GENOSA ......................................... 136
PEOPLE vs. ABRIOL .......................................... 156
PADILLA RUMBAUA vs. RUMBAUA ................... 166
CSC vs. BELAGAN .............................................. 174
PEOPLE vs. DIOPITA ......................................... 181
AZNAR vs. AYING .............................................. 184
ABENES vs. CA ................................................... 189
CONCEPCION vs. CA .......................................... 194
EASTERN SHIPPING vs. LUCERO ....................... 198
BERDIN vs. MASCARINAS .................................. 201
BLUE CROSS vs. OLIVARES ................................ 206
CSC vs. BELAGAN ................................................ 209
DE CASTRO vs. DE CASTRO ................................. 216
GAW vs. CHUA ..................................................... 221
SPS. FIDEL vs. CA ................................................ 225
SALAS vs. STA. MESA MARKET ............................ 228
YU vs. CA ............................................................. 230
MATUGAS vs. COMELEC ...................................... 232
HEIRS OF ARCILLA vs. TEODORO ....................... 236
HEIRS OF MEDINA vs. NATIVIDAD ..................... 241
TIGNO vs. SPS. AQUINO ..................................... 247
PAN PACIFIC vs. CA ............................................ 252
HEIRS OF CRUZ-ZAMORA vs. MUTLTIWOOD ..... 256
ALQUIZAR vs. CARPIO ........................................ 260
MACIAS vs. MACIAS ............................................ 264
HABAGAT GRILL vs. DMC .................................... 267
GAN vs. PEOPLE .................................................. 271
PEOPLE vs. GUIARA ............................................ 280
RULES ON ELECTRONIC EVIDENCE .................... 287
RULE ON DNA EVIDENCE .................................... 291

EVIDENCE

AGUSTIN, E.P. | 1

RULE 130: Rules of Admissibility

Sec. 1 - Sec 8: Object and Documentary Evidence;
Best Evidence Rule
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 164815

September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
Respondents.
RESOLUTION

After a briefing, the team conducted the necessary surveillance

on Valeroso checking his hideouts in Cavite, Caloocan, and
Bulacan. Eventually, the team members proceeded to the
Integrated National Police (INP) Central Police Station in Culiat,
Quezon City, where they saw Valeroso about to board a tricyle.
Disuanco and his team approached Valeroso. They put him
under arrest, informed him of his constitutional rights, and bodily
searched him. They found a Charter Arms revolver, bearing
Serial No. 52315, with five (5) pieces of live ammunition, tucked
in his waist.7
Valeroso was then brought to the police station for questioning.
Upon verification in the Firearms and Explosives Division in
Camp Crame, Deriquito presented a certification8 that the
subject firearm was not issued to Valeroso, but was licensed in
the name of a certain Raul Palencia Salvatierra of Sampaloc,
Manila.9
On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr.
(Timbol), and Adrian Yuson testified for the defense. Their
testimonies are summarized as follows:

NACHURA, J.:
For resolution is the Letter-Appeal1 of Senior Inspector (Sr.
Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22,
2008 Decision2 and June 30, 2008 Resolution3 be set aside and a
new one be entered acquitting him of the crime of illegal
possession of firearm and ammunition.
The facts are briefly stated as follows:
Valeroso was charged with violation of Presidential Decree No.
1866, committed as follows:
That on or about the 10th day of July, 1996, in Quezon City,
Philippines, the said accused without any authority of law, did
then and there willfully, unlawfully and knowingly have in his/her
possession and under his/her custody and control
One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315
with five (5) live ammo.
without first having secured the necessary license/permit issued
by the proper authorities.
CONTRARY TO LAW.4
When arraigned, Valeroso pleaded "not guilty."5 Trial on the
merits ensued.
During trial, the prosecution presented two witnesses: Senior
Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the
Criminal Investigation Division of the Central Police District
Command; and Epifanio Deriquito (Deriquito), Records Verifier of
the Firearms and Explosives Division in Camp Crame. Their
testimonies are summarized as follows:
On July 10, 1996, at around 9:30 a.m., Disuanco received a
Dispatch Order from the desk officer directing him and three (3)
other policemen to serve a Warrant of Arrest, issued by Judge
Ignacio Salvador, against Valeroso for a case of kidnapping with
ransom.6

EVIDENCE

On July 10, 1996, Valeroso was sleeping inside a room in the

boarding house of his children located at Sagana Homes,
Barangay New Era, Quezon City. He was awakened by four (4)
heavily armed men in civilian attire who pointed their guns at
him and pulled him out of the room.10 The raiding team tied his
hands and placed him near the faucet (outside the room) then
went back inside, searched and ransacked the room. Moments
later, an operative came out of the room and exclaimed, "Hoy,
may nakuha akong baril sa loob!"11
Disuanco informed Valeroso that there was a standing warrant
for his arrest. However, the raiding team was not armed with a
search warrant.12
Timbol testified that he issued to Valeroso a Memorandum
Receipt13 dated July 1, 1993 covering the subject firearm and its
ammunition, upon the verbal instruction of Col. Angelito
Moreno.14
On May 6, 1998, the Regional Trial Court (RTC), Branch 97,
Quezon City, convicted Valeroso as charged and sentenced him
to suffer the indeterminate penalty of four (4) years, two (2)
months and one (1) day, as minimum, to six (6) years, as
maximum. The gun subject of the case was further ordered
confiscated in favor of the government.15
On appeal, the Court of Appeals (CA) affirmed16 the RTC
decision but the minimum term of the indeterminate penalty was
lowered to four (4) years and two (2) months.
On petition for review, we affirmed17 in full the CA decision.
Valeroso filed a Motion for Reconsideration18 which was denied
with finality19 on June 30, 2008.
Valeroso is again before us through this Letter-Appeal20
imploring this Court to once more take a contemplative reflection
and deliberation on the case, focusing on his breached
constitutional rights against unreasonable search and seizure.21
Meanwhile, as the Office of the Solicitor General (OSG) failed to
timely file its Comment on Valerosos Motion for Reconsideration,
it instead filed a Manifestation in Lieu of Comment.22

AGUSTIN, E.P. | 2

In its Manifestation, the OSG changed its previous position and

now recommends Valerosos acquittal. After a second look at the
evidence presented, the OSG considers the testimonies of the
witnesses for the defense more credible and thus concludes that
Valeroso was arrested in a boarding house. More importantly,
the OSG agrees with Valeroso that the subject firearm was
obtained by the police officers in violation of Valerosos
constitutional right against illegal search and seizure, and should
thus be excluded from the evidence for the prosecution. Lastly,
assuming that the subject firearm was admissible in evidence,
still, Valeroso could not be convicted of the crime, since he was
able to establish his authority to possess the gun through the
Memorandum Receipt issued by his superiors.
After considering anew Valerosos arguments through his LetterAppeal, together with the OSGs position recommending his
acquittal, and keeping in mind that substantial rights must
ultimately reign supreme over technicalities, this Court is swayed
to reconsider.23
The Letter-Appeal is actually in the nature of a second motion
for reconsideration. While a second motion for reconsideration
is, as a general rule, a prohibited pleading, it is within the sound
discretion of the Court to admit the same, provided it is filed
with prior leave whenever substantive justice may be better
served thereby.24
This is not the first time that this Court is suspending its own
rules or excepting a particular case from the operation of the
rules. In De Guzman v. Sandiganbayan,25 despite the denial of
De Guzmans motion for reconsideration, we still entertained his
Omnibus Motion, which was actually a second motion for
reconsideration. Eventually, we reconsidered our earlier decision
and remanded the case to the Sandiganbayan for reception and
appreciation of petitioners evidence. In that case, we said that if
we would not compassionately bend backwards and flex
technicalities, petitioner would surely experience the disgrace
and misery of incarceration for a crime which he might not have
committed after all.26 Also in Astorga v. People,27 on a second
motion for reconsideration, we set aside our earlier decision, reexamined the records of the case, then finally acquitted Benito
Astorga of the crime of Arbitrary Detention on the ground of
reasonable doubt. And in Sta. Rosa Realty Development
Corporation v. Amante,28 by virtue of the January 13, 2004 En
Banc Resolution, the Court authorized the Special First Division
to suspend the Rules, so as to allow it to consider and resolve
respondents second motion for reconsideration after the motion
was heard on oral arguments. After a re-examination of the
merits of the case, we granted the second motion for
reconsideration and set aside our earlier decision.
Clearly, suspension of the rules of procedure, to pave the way
for the re-examination of the findings of fact and conclusions of
law earlier made, is not without basis.
We would like to stress that rules of procedure are merely tools
designed to facilitate the attainment of justice. They are
conceived and promulgated to effectively aid the courts in the
dispensation of justice. Courts are not slaves to or robots of
technical rules, shorn of judicial discretion. In rendering justice,
courts have always been, as they ought to be, conscientiously
guided by the norm that, on the balance, technicalities take a
backseat to substantive rights, and not the other way around.
Thus, if the application of the Rules would tend to frustrate
rather than to promote justice, it would always be within our
power to suspend the rules or except a particular case from its
operation.29

EVIDENCE

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where
Valeroso was arrested, is different from the version of the
defense. The prosecution claims that Valeroso was arrested near
the INP Central Police Station in Culiat, Quezon City, while he
was about to board a tricycle. After placing Valeroso under
arrest, the arresting officers bodily searched him, and they found
the subject firearm and ammunition. The defense, on the other
hand, insists that he was arrested inside the boarding house of
his children. After serving the warrant of arrest (allegedly for
kidnapping with ransom), some of the police officers searched
the boarding house and forcibly opened a cabinet where they
discovered the subject firearm.
After a thorough re-examination of the records and
consideration of the joint appeal for acquittal by Valeroso and
the OSG, we find that we must give more credence to the
version of the defense.
Valerosos appeal for acquittal focuses on his constitutional right
against unreasonable search and seizure alleged to have been
violated by the arresting police officers; and if so, would render
the confiscated firearm and ammunition inadmissible in evidence
against him.
The right against unreasonable searches and seizures is secured
by Section 2, Article III of the Constitution which states:
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.
From this constitutional provision, it can readily be gleaned that,
as a general rule, the procurement of a warrant is required
before a law enforcer can validly search or seize the person,
house, papers, or effects of any individual.30
To underscore the significance the law attaches to the
fundamental right of an individual against unreasonable searches
and seizures, the Constitution succinctly declares in Article III,
Section 3(2), that "any evidence obtained in violation of this or
the preceding section shall be inadmissible in evidence for any
purpose in any proceeding."31
The above proscription is not, however, absolute. The following
are the well-recognized instances where searches and seizures
are allowed even without a valid warrant:
1. Warrantless search incidental to a lawful arrest;
2. [Seizure] of evidence in "plain view." The elements
are: a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties; b) the
evidence was inadvertently discovered by the police
who have the right to be where they are; c) the
evidence must be immediately apparent; and d)
"plain view" justified mere seizure of evidence without
further search;

AGUSTIN, E.P. | 3

3. Search of a moving vehicle. Highly regulated by the

government, the vehicles inherent mobility reduces
expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the
occupant committed a criminal activity;
4. Consented warrantless search;

search not only on the person of the suspect, but also in the
permissible area within the latters reach.39 Otherwise stated, a
valid arrest allows the seizure of evidence or dangerous weapons
either on the person of the one arrested or within the area of his
immediate control.40 The phrase "within the area of his
immediate control" means the area from within which he might
gain possession of a weapon or destructible evidence.41 A gun
on a table or in a drawer in front of one who is arrested can be
as dangerous to the arresting officer as one concealed in the
clothing of the person arrested.42

5. Customs search;
6. Stop and Frisk;
7. Exigent and emergency circumstances.32
8. Search of vessels and aircraft; [and]
9. Inspection of buildings and other premises for the
enforcement of fire, sanitary and building
regulations.33
In the exceptional instances where a warrant is not necessary to
effect a valid search or seizure, what constitutes a reasonable or
unreasonable search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the
search and seizure was made, the place or thing searched, and
the character of the articles procured.34
In light of the enumerated exceptions, and applying the test of
reasonableness laid down above, is the warrantless search and
seizure of the firearm and ammunition valid?
We answer in the negative.
For one, the warrantless search could not be justified as an
incident to a lawful arrest. Searches and seizures incident to
lawful arrests are governed by Section 13, Rule 126 of the Rules
of Court, which reads:
SEC. 13. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything
which may have been used or constitute proof in the commission
of an offense without a search warrant.
We would like to stress that the scope of the warrantless search
is not without limitations. In People v. Leangsiri,35 People v.
Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to
lay down the parameters of a valid warrantless search and
seizure as an incident to a lawful arrest.
When an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to remove any weapon
that the latter might use in order to resist arrest or effect his
escape. Otherwise, the officers safety might well be
endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestees person in order to prevent
its concealment or destruction.38
Moreover, in lawful arrests, it becomes both the duty and the
right of the apprehending officers to conduct a warrantless

EVIDENCE

In the present case, Valeroso was arrested by virtue of a

warrant of arrest allegedly for kidnapping with ransom. At that
time, Valeroso was sleeping inside the boarding house of his
children. He was awakened by the arresting officers who were
heavily armed. They pulled him out of the room, placed him
beside the faucet outside the room, tied his hands, and then put
him under the care of Disuanco.43 The other police officers
remained inside the room and ransacked the locked cabinet44
where they found the subject firearm and ammunition.45 With
such discovery, Valeroso was charged with illegal possession of
firearm and ammunition.
From the foregoing narration of facts, we can readily conclude
that the arresting officers served the warrant of arrest without
any resistance from Valeroso. They placed him immediately
under their control by pulling him out of the bed, and bringing
him out of the room with his hands tied. To be sure, the cabinet
which, according to Valeroso, was locked, could no longer be
considered as an "area within his immediate control" because
there was no way for him to take any weapon or to destroy any
evidence that could be used against him.
The arresting officers would have been justified in searching the
person of Valeroso, as well as the tables or drawers in front of
him, for any concealed weapon that might be used against the
former. But under the circumstances obtaining, there was no
comparable justification to search through all the desk drawers
and cabinets or the other closed or concealed areas in that room
itself.46
It is worthy to note that the purpose of the exception
(warrantless search as an incident to a lawful arrest) is to
protect the arresting officer from being harmed by the person
arrested, who might be armed with a concealed weapon, and to
prevent the latter from destroying evidence within reach. The
exception, therefore, should not be strained beyond what is
needed to serve its purpose.47 In the case before us, search was
made in the locked cabinet which cannot be said to have been
within Valerosos immediate control. Thus, the search exceeded
the bounds of what may be considered as an incident to a lawful
arrest.48
Nor can the warrantless search in this case be justified under the
"plain view doctrine."
The "plain view doctrine" may not be used to launch unbridled
searches and indiscriminate seizures or to extend a general
exploratory search made solely to find evidence of defendants
guilt. The doctrine is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.49
As enunciated in People v. Cubcubin, Jr.50 and People v.
Leangsiri:51

AGUSTIN, E.P. | 4

What the "plain view" cases have in common is that the police
officer in each of them had a prior justification for an intrusion in
the course of which[,] he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present unconnected
with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to
the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last
emerges.52
Indeed, the police officers were inside the boarding house of
Valerosos children, because they were supposed to serve a
warrant of arrest issued against Valeroso. In other words, the
police officers had a prior justification for the intrusion.
Consequently, any evidence that they would inadvertently
discover may be used against Valeroso. However, in this case,
the police officers did not just accidentally discover the subject
firearm and ammunition; they actually searched for evidence
against Valeroso.

One final note. The Court values liberty and will always insist on
the observance of basic constitutional rights as a condition sine
qua non against the awesome investigative and prosecutory
powers of the government.58
WHEREFORE, in view of the foregoing, the February 22, 2008
Decision and June 30, 2008 Resolution are RECONSIDERED and
SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of
illegal possession of firearm and ammunition.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

Clearly, the search made was illegal, a violation of Valerosos

right against unreasonable search and seizure. Consequently,
the evidence obtained in violation of said right is inadmissible in
evidence against him.1avvphi1
Unreasonable searches and seizures are the menace against
which the constitutional guarantees afford full protection. While
the power to search and seize may at times be necessary for
public welfare, still it may be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for
no enforcement of any statute is of sufficient importance to
justify indifference to the basic principles of government. Those
who are supposed to enforce the law are not justified in
disregarding the rights of an individual in the name of order.
Order is too high a price to pay for the loss of liberty.53
Because a warrantless search is in derogation of a constitutional
right, peace officers who conduct it cannot invoke regularity in
the performance of official functions.54
The Bill of Rights is the bedrock of constitutional government. If
people are stripped naked of their rights as human beings,
democracy cannot survive and government becomes
meaningless. This explains why the Bill of Rights, contained as it
is in Article III of the Constitution, occupies a position of primacy
in the fundamental law way above the articles on governmental
power.55
Without the illegally seized firearm, Valerosos conviction cannot
stand. There is simply no sufficient evidence to convict him.56 All
told, the guilt of Valeroso was not proven beyond reasonable
doubt measured by the required moral certainty for conviction.
The evidence presented by the prosecution was not enough to
overcome the presumption of innocence as constitutionally
ordained. Indeed, it would be better to set free ten men who
might probably be guilty of the crime charged than to convict
one innocent man for a crime he did not commit.57
With the foregoing disquisition, there is no more need to discuss
the other issues raised by Valeroso.

EVIDENCE

AGUSTIN, E.P. | 5

Republic of the Philippines

SUPREME COURT
Manila

The inculpatory facts, as unveiled by the prosecution in its

evidence given during the trial, were briefly synthesized by the
Office of the Solicitor General, viz:

SECOND DIVISION

On October 14, 2004, at around 7:45 in the evening, Police

Officer 3 (PO3) Celso Pang-ag of the Intelligence and Operation
Section of the Laoag City Police Station received a telephone call
from an informant about a drug session being held inside Room
5 of the Starlight Hotel located at Barangay 5, Ablan Avenue,
Laoag City.

G.R. No. 180870

January 22, 2010

JULIUS CACAO y PRIETO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
In order to safeguard its citizenry from the harmful effects of
dangerous drugs on their physical and mental well-being, the
State pursued an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs and other similar
substances.1 However, in our desire to totally eradicate this
social ill, we must adhere to the constitutional pronouncement
that in all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved.2 This case illustrates once
more our faithful adherence to said constitutional requirement.

Factual Antecedents
For review is the Decision3 of the Court of Appeals (CA) in CAG.R. CR
No. 29985 dated July 27, 2007 affirming in toto the Decision4 of
the Regional Trial Court (RTC) of Laoag City, Branch 13 in
Criminal Case No. 11489-13 dated November 25, 2005 finding
herein petitioner Julius Cacao y Prieto (Cacao) guilty beyond
reasonable doubt of violating Section 11, Article II of Republic
Act (RA) No. 9165 (The Comprehensive Dangerous Drugs Act of
2002) and sentencing him to suffer the penalty of imprisonment
ranging from 12 years and one day to 15 years and ordering him
to pay a fine of P400,000.00. Also assailed is the Resolution5 of
the CA dated December 11, 2007 denying the motion for
reconsideration.
On October 15, 2004, two separate informations were filed
against Joseph Canlas y Naguit6 and Cacao7 indicting them for
violation of Section 11, Article II of RA 9165 before the RTC of
Laoag City. Insofar as pertinent to this petition, we shall quote
the information only against Cacao in Criminal Case No. 1148913 which reads:
That on or about the 14th day of October, 2004, at Laoag City,
Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there willfully,
unlawfully and feloniously [sic] have in his possession, control
and custody 1 plastic sachet of methamphetamine hydrochloride
or shabu containing a total of 1.6 grams including plastic sachets
[sic] without any license or authority, in violation of the
aforesaid law.
CONTRARY TO LAW.8
When arraigned on November 30, 2004, Cacao pleaded not
guilty.9 Thereafter trial on the merits followed.

EVIDENCE

Acting on the information, PO3 Pang-ag, together with PO2

Jonel Mangapit, went immediately to the Starlight Hotel to
determine the veracity of the report. Upon arrival at the target
area, PO3 Pang-ag and PO2 Mangapit approached the lady clerk
manning the information counter of Starlight Hotel and inquired
about the alleged drug session at Room 5 of the hotel.
The lady clerk informed PO3 Pang-ag and PO2 Mangapit that the
roomboy of the hotel was about to deliver a softdrink to Room 5
and they could follow him if they [so wish]. Thus, PO3 Pang-ag
and PO2 Mangapit followed the roomboy to Room 5. Upon
arrival, the roomboy knocked at the door and a woman, later
identified as Mylene, opened the door wide enough to enable the
police officers to look inside.
PO3 Pang-ag and PO2 Mangapit saw petitioner seated on top of
the bed sniffing "shabu" while Joseph Canlas was on the floor
assisting petitioner sniffing "shabu". At this juncture, PO3 Pangag and PO2 Mangapit arrested petitioner and Joseph and
confiscated from them the drug paraphernalia, glass tooter,
scissors, lighters and plastic sachets.
PO2 Mangapit frisked petitioner and recovered from him one
plastic sachet containing "shabu".
After informing petitioner and Joseph of their constitutional
rights, PO3 Pang-ag and PO2 Mangapit brought them to the
Laoag City Police Station and turned them over to the police
officer on duty while the confiscated items were turned over to
SPO3 Loreto Ancheta.
The Philippine National Police (PNP) laboratory conducted an
examination on the specimen recovered from appellant and his
companion which tested positive for "shabu".10
Cacao professed his innocence and presented his defense in this
wise:
In the afternoon of 14 October 2004, petitioner was waiting for a
ride going home along the National Road at the rotunda of San
Nicolas, Ilocos Norte. Joseph Canlas [who was on his way to]
Laoag City aboard his motorcycle x x x pulled over and asked
the petitioner if the latter could spare a moment to estimate a
work he wanted to be done in his house. Admittedly, the
petitioner is a contractor. Petitioner agreed and they both
boarded Canlas motorcycle for Laoag City.
While in Laoag City, petitioner and Canlas stopped at the public
market for the latter to collect [loan payment] as he is also a
money lender. Petitioner stayed [by] Canlas motorcycle. When
Canlas returned, it was then that they decided to have "chicks"
(or womanize). They then proceeded to Starlight Hotel located
along Ablan Ave., Laoag City on board Canlas motorcycle.

AGUSTIN, E.P. | 6

x x x at the Starlight Hotel, petitioner asked for a room and [was

given] Room 5 x x x. Thereafter, Canlas stayed inside Room 5
while petitioner went out to the hotels counter to wait for the
woman they [had] contacted. Present at the counter at the time
was the lady cashier [named] Cherry Corpuz.
In about thirty (30) minutes, a tricycle-for-hire arrived with a
man and a woman on board as passengers. The tricycle went
inside the hotel and stopped right in front of the counter where
the petitioner and the lady cashier were. After alighting from the
tricycle, the woman companion inquired where Room 5 is [and
was directed] by the lady cashier. The woman [who] alighted
from the tricycle in the company of another male person was
later on identified to be Mylene Daquioag. Thereafter, Mylene
Daquioag proceeded to Room 5 while the male companion
stayed behind with the petitioner at the hotels counter. When
petitioner could not wait [any] longer because there was only
one woman who arrived, he x x x asked the male companion of
Mylene Daquioag if another woman is coming. The male
companion answered in the negative. A couple of minutes
[later], petitioner followed to Room 5 so he could [sic] go home
instead because it was then getting late.
Upon entering the room, petitioner saw Mylene Daquioag and
Canlas seated at the table inside the room. He also saw Mylene
Daquioag offer something contained in plastic x x x to Canlas.
The latter refused as he said it is a woman that he was asking
[for].
Barely a moment after entering Room 5, the two then heard a
knock on the door from the outside. Mylene Daquiaog
immediately stood up and told the petitioner and Canlas that
"they are (her) companions".
As soon as the door was unlocked by Mylene Daquioag, several
policemen barged inside the room with their guns drawn out.
Petitioner was shoved to the bed by one of the police. He was
later bodily searched but nothing was found from [sic] him
except his wallet containing cash of about P 7,000.00. The wallet
was later turned over to the petitioners wife at the Police
Station of Laoag, City. The P7,000.00 was never seen again.
As petitioner was made to sit at [sic] the bed, one of the police
officers pointed to a plastic sachet on the floor. It was about two
(2) meters away from him and about a meter from the police
pointing [to] it. The same police then explained that the plastic
sachet belongs to the petitioner. Immediately, petitioner cried
foul on the assertion.
Due to the suddenness of events, the petitioner was not as
much as able to notice what the other police did to
Canlas.1avvphi1
Without much ado, the petitioner and Canlas were apprehended,
handcuffed and brought to the Laoag City Police Station.
Charges were later on filed against them.11

The accused Julius Cacao is likewise found GUILTY beyond

reasonable doubt as charged of illegal possession of
methamphetamine hydrochloride weighing 1.3987 grams in
Criminal Case No. 11489 and is therefore sentenced to suffer the
indeterminate penalty of imprisonment from TWELVE (12)
YEARS and ONE (1) DAY to FIFTEEN (15) YEARS and to pay the
fine of Four hundred thousand (P400,000.00) pesos, Philippine
Currency.
The sachets of shabu confiscated from the accused are all
confiscated in favor of the Government, the same to be disposed
as the law prescribes. Cost de oficio.
SO ORDERED.12

Ruling of the Court of Appeals

Aggrieved by the Decision of the trial court, Cacao interposed an
appeal to the CA. On July 27, 2007, the appellate court rendered
judgment affirming Cacaos conviction. It held that the
circumstances obtaining in this case validly cloaked the arresting
officers with the authority to search and seize any contraband or
prohibited material which may be used as proof of the offense of
which Cacao is charged. It also ruled that there is no proof that
the police officers compelled Cacao to admit a crime. As to the
alleged contradictory statements, the appellate court ruled that
they refer only to minor details which are not sufficient to
overthrow the probative value accorded them by the trial court.
Petitioner moved for reconsideration13 but the motion was
denied by the appellate court in its Resolution14 dated on
December 11, 2007.
Issues
In this petition, Cacao ascribes to the trial court the following
errors:
I. The lower court gravely erred in ruling that the guilt
of the accused was proven beyond reasonable doubt
considering the myriad material inconsistencies,
discrepancies, and incredible statements in the
prosecution evidence.15
II. The lower court gravely erred in failing to lend
credence to the critical testimony of Benedict
Villanueva.16
III. The lower court erred in not finding that the
crucial first link in the chain of custody of the
specimen subjected for examination was not
proven.17
IV. The lower court gravely erred in declaring that the
defense of frame-up cannot be given weight.18

Ruling of the Regional Trial Court

On November 25, 2005, the trial court rendered its judgment
finding Cacao guilty of the offense charged and sentenced him
accordingly, viz:
WHEREFORE x x x

EVIDENCE

V. The lower court gravely erred in relying on the

weakness of the defense.19
VI. The lower court gravely erred in failing to find that
the presumption of innocence of the petitioner stands
unrebutted, hence, his conviction is erroneous.20

AGUSTIN, E.P. | 7

Our Ruling

A: I turned it over to the evidence custodian, Sir.

We find merit in the petition.

Q: Who was that evidence custodian to whom you

turned over that plastic sachet?

As a general rule, factual findings and conclusions of the trial

court and the CA are entitled to great weight and respect and
will not be disturbed on appeal. However, if there is any
indication that the trial court overlooked certain facts or
circumstances which would substantially affect the disposition of
the case,21 we will not hesitate to review the same. In this case,
we find it imperative to review the factual findings of the trial
court because of certain inconsistencies in the testimonies of the
prosecution witnesses on material points.
Jurisprudence holds that in prosecution of cases involving illegal
possession of prohibited drugs, the prosecution must establish
with moral certainty the elemental act of possession of a
prohibited substance coupled with the fact that such possession
is not authorized by law. Essential, however, in a drug-related
case is that the identity of the dangerous drug be established
beyond reasonable doubt.22 Since the dangerous drug
constitutes the corpus delicti of the offense and the fact of its
existence is vital to a judgment of conviction,23 it behooves upon
the prosecution to establish and prove with certainty that the
dangerous drug presented in court as evidence against the
accused is the same item recovered from his possession.
We have scrutinized in detail the testimonies of the prosecution
witnesses and found not only glaring inconsistencies on material
points but more importantly a failure to identify indubitably the
prohibited drug allegedly confiscated from Cacao.

The testimonies of the prosecutions principal witnesses are

inconsistent as to who delivered the prohibited drug to the
evidence custodian.
PO3 Celso Pang-ag (Pang-ag) and PO2 Jonel Mangapit
(Mangapit) both testified that it was the latter who brought the
item confiscated from petitioner to the evidence custodian, SPO3
Loreto Ancheta (Ancheta). Thus:

A: SP02 Loreto Ancheta, Sir.25

The foregoing assertions are totally at odds with the testimony
of Ancheta, the evidence custodian. The latter denied that it was
Mangapit who delivered the item allegedly recovered from
Cacao. Instead, he repeatedly and categorically declared that it
was SP03 Balolong (Balolong) from whom he received the plastic
sachet of shabu.
Q: Who delivered to you the specimen allegedly
confiscated from the possession of Cacao?
A: SP03 Balolong, Sir.26
During his cross-examination, Ancheta confirmed his declaration
that it was Balolong and definitely not Mangapit who handed to
him the plastic sachet of shabu. Ancheta testified thus:
Q: You said that it was officer Balolong who handed
to you the plastic sachet of shabu which was allegedly
taken from the possession of accused Julius Cacao,
did I hear you right?
A: Julius Cacao, yes sir.
Q: It was not officer Mangapit who handed to you the
plastic sachet of shabu?
A: Balolong, sir.
Q: It was not Mangapit?
A: No sir.27

Q: What about the two plastic sachets you

confiscated from the possession of the accused
Joseph and the one plastic sachet which Jonel
Mangapit confiscated from the possession of Julius
Cacao as well as the drug paraphernalia you
mentioned, what did you do with them?

When confronted with the afore-quoted testimony of Ancheta,

Mangapit cannot explain the variance. He just gave a sweeping
answer "I do not know".28

A: We turned over the confiscated drug paraphernalia

and the one I confiscated to the evidence custodian,
SP03 Loreto Ancheta and the one confiscated by P02
Mangapit was also turned over by him to the evidence
custodian, sir.

We cannot understand why the courts below did not doubt or

suspect the patently inconsistent and contradictory testimonies
of the principal witnesses of the prosecution. Contrary to the
findings of the appellate court, we are of the considered view
that this contradiction is not so inconsequential or minor but a
discrepancy touching on substantial and significant matter which
could well affect the credibility of the witnesses.

Q: Who was the evidence custodian whom you and

Jonel Mangapit turned over the items you said?

The prosecution failed to satisfactorily establish that the item

presented in court was the same item confiscated from Cacao.

A: SPO3 Loreto Ancheta, Sir.24

The patent inconsistency between the testimonies of Mangapit

and Pang-ag, on one hand, and the testimony of Ancheta on the
other hand, necessarily leads us to doubt that the plastic sachet
of shabu identified in court is the same item that was allegedly
seized and confiscated from petitioner. If the version of
Mangapit is to be believed, then the most lamentable aspect
pertains to his failure to identify the seized item with certainty.
For sure Mangapit, who is the most competent person to make

Mangapit corroborated Pang-ags testimony that it was he who

delivered to Ancheta the item he seized from Cacao. Thus:
Q: How about the one big plastic sachet you were
able to seize from the right front pocket of accused
Cacao, what did you do?

EVIDENCE

AGUSTIN, E.P. | 8

the proper identification being the officer who confiscated the

item from Cacao, never actually identified the same:
Q: If shown to you again that one big plastic sachet
where you put markings would you be able to
recognize and identify the same?
A: Yes, sir.
Q: Giving to you an already opened brown envelope
with several contents, will you please sort out [the]
contents and bring out that big plastic sachet you
claimed you confiscated from the custody of accused
Cacao?
A: (Witness sorting out the contents of the plastic bag
containing several items). (Witness examining the
plastic sachet mounted on the bond paper marked as
Exhibit B-1).
Q: Are the markings you claimed which were placed
in the plastic sachet still visible and readable?
A: Yes, sir.
Q: Will you please read for record purposes the
markings?
A: Initial JPC and my signature, sir.
(Witness pointing to the initials and signature written on a
darker masking tape on the plastic sachet).29
Verily, there was no actual and effective identification of the
subject specimen. After sorting out the contents of the plastic
bag, witness Mangapit merely pointed to the initial and signature
written on a masking tape attached to the plastic sachet. At no
instance did he make a categorical and accurate declaration that
the sachet contained the shabu allegedly confiscated from
Cacao.
The only other person who could have identified the subject
drug is Pang-ag. However, we cannot lend credence to his
supposed identification, the same not being also positive, certain
and unequivocal. Besides, there is no showing that this witness
actually saw the shabu at the time it was allegedly seized from
petitioner. In fact, Pang-ag is even incompetent to make the
identification since from all indications, he has never been in
possession of it.1avvphi1
Be that as it may, any identification made by these witnesses on
the item allegedly seized from petitioner is rendered meaningless
and bereft of probative value in view of the categorical denial of
the evidence custodian that he received the same from
Mangapit. It is now clearly evident from the records that the
sachet of shabu which the evidence custodian received, marked
and submitted for examination and later presented in court is
not the same sachet of shabu which Mangapit claimed to have
confiscated from petitioner and subsequently transmitted to the
evidence custodian.
Moreover, considering the testimony of Ancheta, it was Balolong
who forwarded the seized item. It is quite strange that Ancheta
would point to Balolong as the sender of the seized items if he

EVIDENCE

had no basis in saying so. However, our own scrutiny of the

records failed to show the role of Balolong in the operation since
admittedly, the only lawmen who participated therein were
Mangapit and Pang-ag. In fact, as testified to by Mangapit,
Balolong proceeded to the hotel after the operation.30 How then
was Balolong able to get hold of the confiscated substance when
he was neither a party to nor present during the operation? Who
entrusted the substance to him assuming that somebody
requested him to submit it for safekeeping? These are only some
of the lingering questions which must be answered convincingly
and satisfactorily so as to ensure that there had been no
substitution, contamination or tampering with the sachet of
shabu allegedly taken from petitioner. It must be noted that
Balolong was never presented to testify in this case. Thus, there
is no evidence to prove that what was turned over to the
evidence custodian by Balolong and later presented in court was
the same substance recovered from petitioner. The failure to
establish the chain of custody is fatal to the prosecutions case.
There can be no crime of illegal possession of a prohibited drug
when nagging doubts persist on whether the item confiscated
was the same specimen examined and established to be the
prohibited drug.31 In People v. Casimiro,32 citing People v.
Mapa,33 we acquitted the accused for failure of the prosecution
to establish the identity of the prohibited drug which constitutes
the corpus delicti. Equally true in Zarraga v. People,34 we also
acquitted the accused in view of the prosecutions failure to
indubitably show the identity of the shabu.
At this juncture, it must be stressed that the "corpus delicti in
dangerous drugs cases constitutes the drug itself. This means
that proof beyond reasonable doubt of the identity of the
prohibited drug is essential".35
Likewise, our ruling in People v. Gutierrez36 on chain of custody
rule is instructive. Thus:
As a mode of authenticating evidence, the chain of custody rule
requires the presentation of the seized prohibited drugs as an
exhibit be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to be.
This would ideally cover the testimony about every link in the
chain, from seizure of the prohibited drug up to the time it is
offered in evidence, in such a way that everyone who touched
the exhibit would describe how and from whom it was received,
to include, as much as possible, a description of the condition in
which it was delivered to the next in the chain.
Finally, petitioners defenses of denial and frame-up are
concededly inherently weak and commonly used in drug-related
cases. However, it must be stressed that conviction of the
accused must rest not on the weakness of the defense but on
the strength of the evidence of the prosecution.
Based on the foregoing, we are of the considered view that the
quantum of evidence needed to convict, that is proof beyond
reasonable doubt, has not been adequately established by the
prosecution. While as a rule we desist from disturbing the
findings and conclusions of the trial court especially with respect
to the credibility of witnesses, we must bow to the superior and
immutable rule that the guilt of the accused must be proved
beyond reasonable doubt because the law presumes that the
accused is innocent unless and until proven otherwise.
Presumption of regularity in the performance of official duty
cannot by itself override the constitutional right of the accused
to be presumed innocent unless overcome by strong, clear and
compelling evidence.

AGUSTIN, E.P. | 9

WHEREFORE, the petition is GRANTED. The assailed Decision

of the Court of Appeals in CA-G.R. CR No. 29985 dated July 27,
2007 affirming in toto the Decision of the Regional Trial Court of
Laoag City, Branch 13, in Criminal Case No. 11489-13, and its
Resolution dated December 11, 2007 denying the motion for
reconsideration, are REVERSED and SET ASIDE. Petitioner
Julius Cacao y Prieto is ACQUITTED on ground of reasonable
doubt.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 10

Republic of the Philippines

SUPREME COURT
Manila

initials "JT-RA" and "AE-RC."11 The markings purportedly

represented the initials of Eugenio and Tayaban and the initials
of petitioners from whom they were seized.1avvphi1

SECOND DIVISION

Eugenio corroborated the testimony of Tayaban in its material

respects. He admitted that he was the one who grabbed Carino
when he noticed that the latter was holding a plastic sachet in
his hand. He suspected the sachet to be containing shabu and
he immediately told Carino of his offense. At that point Carino
allegedly dropped the plastic sachet, so he (Eugenio) picked it
up and after examining the same concluded that it indeed
contained shabu.12 He and his companions brought Carino to
their team leader just across the street. The latter asked Carino
who the source of the shabu was, and he was told that it was a
certain woman.13 Some members of the team, including
Tayaban, left Araneta Avenue and went to Banawe Avenue to
the place where the woman allegedly could be found, but
Eugenio was not able to catch up with them because he received
a phone message moments later that the woman had already
been arrested. He instead proceeded to the police station for the
investigation.14

G.R. No. 178757

March 13, 2009

RONALD CARINO and ROSANA ANDES, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
TINGA, J.:
In this petition for review on certiorari,1 petitioners Ronald
Carino and Rosana Andes assail the Decision2 of the Court of
Appeals in CA-G.R. CR No. 29867 dated 13 March 2007, which
affirmed the joint decision3 of the Regional Trial Court of Quezon
City, Branch 103,4 finding petitioners Ronald Carino and Rosana
Andes guilty beyond reasonable doubt of illegal possession of
methamphetamine hydrochloride, a dangerous drug locally
known as shabu.
Petitioners Carino and Andes were apprehended on two separate
but related incidents on 20 June 2003 at the corner of G.
Araneta and E. Rodriguez Avenues in Quezon City. The
apprehending officers were allegedly members of the Central
Police District (CPD)-Galas Police Station 11 and were part of the
eight-man team5 that was dispatched by the police district
authorities to conduct the "Oplan Sita"an operation which had
for its object the suppression of rampant robbery in the vicinity.
It was in the course of this operation that both petitioners were
arrested without a warrant for allegedly having in their
possession plastic sachets containing shabu.
After the arrest and investigation, petitioners were charged in
two separate informations6 with violation of Section 11, Article II
of Republic Act No. 9165 (R.A. No. 9165).7 Both of them entered
a negative plea on arraignment.8 The cases were thereafter
jointly tried.
The prosecution offered the testimony of PO1 Joseph Tayaban
(Tayaban) and PO1 Arnold Eugenio (Eugenio) to prove the
charges against petitioners. Tayaban and Eugenio professed that
they were the ones who arrested both petitioners.
Tayaban testified that the members of "Oplan Sita," on 20 June
2003, had started patrolling the area of coverage as early as
9:00 oclock in the morning of that day. At around 2:00 oclock in
the afternoon, his colleague, Eugenio, spotted Carino, about a
meter away from their location and holding a plastic sachet in
his hand. Right there and then, they placed Carino under arrest
and Eugenio immediately seized the plastic sachet.9 They asked
Carino who the source of the plastic sachet was and the latter
immediately identified petitioner Andes. They approached Andes,
and she allegedly became hysterical when the policemen
introduced themselves to her. It was then that Tayaban noticed
the woman inserting something inside the pocket of her 5-year
old male child. Tayaban was suspicious so he inspected the right
pocket of the child and found a plastic sachet inside it containing
shabu.10 Petitioners were immediately brought to the Galas
Police Station. The plastic sachets were allegedly submitted to
the desk officer and then to the station investigator who in the
presence of Tayaban marked each of the specimens with the

EVIDENCE

The prosecution also submitted the results of the qualitative

examination administered on the contents of the two plastic
sachets seized from petitioners. The chemistry report signed by
Engineer Leonard M. Jabonillo (Jabonillo), chemist and forensic
analyst at the CPD Crime Laboratory Office, revealed that the
specimens submitted for analysis yielded positive of
methamphetamine hydrochloride content.15
Both petitioners denied the charges. It was revealed during their
testimony, however, that they had previously known each other
as Carino was employed as a "latero" at the automobile repair
shop owned by Andess "kumpare."16
Carino testified that he was on his way to work when he was
arrested along E. Rodriguez Avenue. He was allegedly grabbed
by the hand by one of the policemen and asked him to come
with them to the police station. He denied having been frisked at
any time between his arrest and conveyance to the police
station.17 Quite boldly, he asserted that Tayaban was the source
of the plastic sachet allegedly recovered from him as he in fact
saw the said officer pull the sachet out of his own pocket at the
time the arrest was taking place. At that point, Carino was asked
who the source of the drug was, but when he replied that it was
not his, one of the officers retorted, "Nagmamaang-maangan ka
pa." At the police station, he was allegedly mauled by Tayaban
because he again denied ownership of the plastic sachet.18
When he was brought to the prosecutors office for inquest
proceedings, Carino continued, the fiscal allegedly told the
police, "Bakit hindi na lang natin i-further investigation ito? Wala
namang ebidensiya sa kanya," suggesting that the police escort
including Tayaban and Eugenio did not bring the supposed
sachet of shabu seized from petitioners.19
Petitioner Andes, for her part, narrated that she and her 5-year
old son were on their way home from the bakeshop when
suddenly, Tayaban and a certain police officer Prado approached
them and asked her whether she could identify the man inside
the police car;20 that she obliged, so she proceeded to the where
the car was parked and seeing petitioner Carino inside with his
hands cuffed told the officers that the man was familiar to her
because he was an employee at his "kumpares" shop but she
could not place his name;21 that she was then invited to come to
the police station and once there, she saw Carino being frisked
and the officers found nothing on him; and that she was also
frisked by Tayaban but found nothing on her either.22 She also
claimed that Tayaban and his companions demanded from her

AGUSTIN, E.P. | 11

and Carino P10,000.00 for their release but they were detained
because they could not and did not pay.23
On 9 December 2005, the trial court rendered its joint decision24
in these cases finding both petitioners guilty beyond reasonable
doubt of the crime of illegal possession of dangerous drugs. It
sentenced petitioners to suffer the prison term of twelve years
and one day as minimum to thirteen years as maximum as well
as to pay the fine of P300,000.00.25
Petitioners interposed an appeal with the Court of Appeals,26 but
in its 13 March 2007 Decision the appellate court affirmed the
findings and conclusions of the trial court.27 Petitioners moved
for reconsideration28 but the same was denied.29
In this Petition for Review on Certiorari,30 petitioners once again
bid to establish that their guilt has not been proven beyond
reasonable doubt. They capitalize on the alleged inconsistencies
in the testimony of police officers Tayaban and Eugenio,31 as
well as on the inadmissibility, for failure to establish the chain of
custody, of the drug specimens supposedly seized from them on
account of the failure of the forensic chemist who signed the
chemistry report to testify in court.32
The OSG, for its part, advances that the evidence was sufficient
to prove the petitioners guilt in this case especially considering
that the alleged inconsistencies in the testimonies of the
prosecution witnesses in this case can no longer be challenged
because they had already been accorded credibility by the trial
court.33 Besides, the OSG points out, petitioners advance no
better defense than their self-serving claim of frame-up which
must be dismissed in light of the presumption that the police
officers involved in their apprehension have regularly performed
their duty.34 As to the claim that the evidence should not be
admitted for failure of the forensic chemist to testify, the OSG
points out that the parties had already agreed at the pre-trial to
dispense with such testimony inasmuch as they had already
stipulated that the drug specimens were actually submitted to
the laboratory for analysis and that the results thereof were then
reduced in written report.35
The Court grants the petition.
To begin with, prosecutions for illegal possession of prohibited
drugs necessitates that the elemental act of possession of a
prohibited substance be established with moral certainty,
together with the fact that the same is not authorized by law.
The dangerous drug itself constitutes the very corpus delicti of
the offense and the fact of its existence is vital to a judgment of
conviction.36 In these cases, it is therefore essential that the
identity of the prohibited drug be established beyond doubt.37
The mere fact of unauthorized possession will not suffice to
create in a reasonable mind the moral certainty required to
sustain a finding of guilt. More than just the fact of possession,
the fact that the substance illegally possessed in the first place is
the same substance offered in court as exhibit must also be
established with the same unwavering exactitude as that
requisite to make a finding of guilt. The chain of custody
requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are
removed.38
Chain of custody is defined as the duly recorded authorized
movements and custody of seized drugs or controlled chemicals
or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in

EVIDENCE

the forensic laboratory to safekeeping to presentation in court

for destruction.39 As a method of authenticating evidence, it
requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be.40 It would include
testimony about every link in the chain, from the moment the
item was picked up to the time it is offered into evidence, in
such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and
what happened to it while in the witness possession, the
condition in which it was received and the condition in which it
was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there
had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of
the same.41 It is from the testimony of every witness who
handled the evidence from which a reliable assurance can be
derived that the evidence presented in court is one and the
same as that seized from the accused.
In the case at bar, however, the prosecution evidence is
insufficient to provide that assurance, for all the people who
made contact with the sachets of shabu allegedly seized from
petitioners, only Tayaban and Eugenio were able to testify in
court as to the identity of the evidence. The desk officer at the
police station to whom the specimens were purportedly
surrendered by Tayaban and Eugenio was not even presented in
court to observe the identity and uniqueness of the evidence.
Even more to the point is the fact that the testimony of the
investigator, who had taken custody of the plastic sachets after
the same were reported to the desk officer, was likewise not
offered in court to directly observe the evidence and admit the
specific markings thereon as his own. The same is true with
respect to Jabonillo, the forensic chemist at the crime laboratory
who administered the chemical examination on the specimens
and who could have testified on the circumstances under which
he received the specimen at the laboratory for analysis and
testing, as well as on the conduct of the examination which was
administered on the specimen and what he did with it at the
time it was in his possession and custody.
Aside from that, the prosecution has not in fact reasonably
explained why these same witnesses were not able to testify in
court. While indeed the OSG claims that the testimony of
Jabonillo has already been dispensed with by the parties at the
pre-trial stage, there however seems to be not a single hint in
the pre-trial order which implies that the parties indeed
dispensed with said testimony.42
In view of these loopholes in the evidence adduced against
appellant, it can be reasonably concluded that the prosecution
was unable to establish the identity of the dangerous drug and
in effect failed to obliterate the hypothesis of petitioners
guiltlessness.
Be that as it may, while a testimony about a perfect chain is not
always the standard because it is almost always impossible to
obtain, an unbroken chain of custody becomes indispensable
and essential when the item of real evidence is not distinctive
and is not readily identifiable, or when its condition at the time
of testing or trial is critical, or when a witness has failed to
observe its uniqueness.43 The same standard likewise obtains in
case the evidence is susceptible to alteration, tampering,
contamination44 and even substitution and exchange.45 In other
words, the exhibits level of susceptibility to fungibility, alteration
or tamperingwithout regard to whether the same is advertent
or otherwise notdictates the level of strictness in the
application of the chain of custody rule.

AGUSTIN, E.P. | 12

A unique characteristic of narcotic substances is that they are

not readily identifiable as in fact they are subject to scientific
analysis to determine their composition and nature. Hence, the
risk of tampering, loss or mistake with respect to an exhibit of
this nature is greatest when the exhibit is small and is one that
has physical characteristics fungible in nature and similar in form
to substances familiar to people in their daily lives.46 The danger,
according to Graham v. State,47 is real. In that case, a substance
later analyzed as heroin was excluded from the prosecution
evidence because it was previously handled by two police
officers prior to examination who, however, did not testify in
court on the condition and whereabouts of the exhibit at the
time it was in their possession. The court pointed out that the
white powder seized could have been indeed heroin or it could
have been sugar or baking powder. It ruled that unless the state
can show by records or testimony the continuous whereabouts
of the exhibit at least between the time it came into the
possession of police officers until it was tested in the laboratory
to determine its composition, testimony of the state as to the
laboratorys findings is inadmissible.481awphi1.zw+
Indeed, the Court cannot reluctantly close its eyes to the
likelihood, or at least the possibility, that at any of the links in
the chain of custody over a narcotic specimen there could have
been tampering, alteration or substitution of substances from
other casesby accident or otherwisein which similar evidence
was seized or in which similar evidence was submitted for
laboratory testing. Hence, in authenticating the same, a
standard more stringent than that applied to cases involving
objects which are readily identifiable must be applied, a more
exacting standard that entails a chain of custody of the item with
sufficient completeness if only to render it improbable that the
original item has either been exchanged with another or been
contaminated or tampered with.
Our drugs laws in fact establish reasonable safeguards for the
protection of the identity and integrity of narcotic substances
and dangerous drugs seized and/or recovered from drug
offenders. Section 2149 of R.A. No. 9165 materially requires the
apprehending team having initial custody and control of the
drugs to, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice,
and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof. The same
requirements are also found in Section 2150 of its implementing
rules51 as well as in Section 252 of the Dangerous Drugs Board
Regulation No. 1 series of 2002.53
The members of the arresting team in this case, however, do not
seem to have complied with these guidelines. The prosecution
has not even shown that they had extended reasonable efforts
to comply with the statutory requirements in handling the
evidence. From the testimonies of Tayaban and Eugenio, it is
clear that after the arrest of petitioners they immediately seized
the plastic sachets, took custody thereof and brought the same
to the police station together with petitioners. It was at the
police stationand not at the place where the item was seized
from appellantwhere, according to Tayaban and Eugenio, the
unnamed police investigator had placed the markings on the
specimens. What is more telling is the admission made by
Tayaban to the effect that the markings were placed on the
plastic sachet in his presence and not in the presence of
petitioners as required by law.

together with the failure of the key persons who handled the
same to testify on the whereabouts of the exhibits before they
were offered in evidence in court, militate against the
prosecutions cause because they not only cast doubt on the
identity of the corpus delicti but also tend to negate, if not
totally discredit, the claim of regularity in the conduct of official
police operation advanced by the OSG. Indeed, we cannot give
much weight to the contention that the arresting officers in this
case were not trained to apprehend and arrest drug offenders,
because as agents of the government in law enforcement they
are reasonably presumed to know the laws and the rules they
are tasked to enforce.
We take this occasion to reiterate, albeit not needlessly, that the
presumption of regularity in the performance of official duty
must be seen in the context of an existing rule of law or statute
authorizing the performance of an act or duty or prescribing a
procedure in the performance thereof. The presumption, in other
words, obtains only where nothing in the records is suggestive of
the fact that the law enforcers involved deviated from the
standard conduct of official duty as provided for in the law.54 But
where the official act in question is irregular on its face, an
adverse presumption arises as a matter of course.55
All told, in view of the deviation of the apprehending officers
from the mandated conduct of taking post-seizure custody of the
dangerous drug in this case, there is no way to presume that the
members thereof had performed their duties regularly. And even
assuming that we can confidently rely on the credibility of the
prosecution witnesses in this case, the evidence would still fall
short of satisfying the quantum of evidence required to arrive at
a finding of guilt beyond reasonable doubt because the evidence
chain failed to conclusively connect petitioners with the seized
drugs in a way that would establish that the specimens are one
and the same as that seized in the first place and offered in
court as evidence.
In Mallillin v. People,56 People v. Obmiranis57 and People v.
Garcia,58 we declared that the failure of the prosecution to offer
the testimony of key witnesses to establish a sufficiently
complete chain of custody of a specimen of shabu, and the
irregularity which characterized the handling of the evidence
before the same was finally offered in court, fatally conflict with
every proposition relative to the culpability of the accused. It is
this same reason that now moves us to reverse the judgment of
conviction in the present case.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR
No. 29867 dated 13 March 2007, affirming the joint decision of
the Regional Trial Court of Quezon City, Branch 103 in Criminal
Case Nos. Q-03-118301 and Q-03-118302 is REVERSED and SET
ASIDE. Petitioners Ronald Carino y Asunzion and Rosana Andes
y Nobelo are ACQUITTED on reasonable doubt and are
accordingly ordered immediately released from custody unless
they are lawfully held for another offense.
The Director of the Bureau of Corrections is directed to
implement this Decision and to report to this Court the action
taken hereon within five (5) days from receipt.
SO ORDERED.
DANTE O. TINGA
Associate Justice

These flaws in the conduct of the post-seizure custody of the

dangerous drug allegedly recovered from petitioners, taken

EVIDENCE

AGUSTIN, E.P. | 13

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 131516

March 5, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RONNIE RULLEPA Y GUINTO, accused-appellant.
CARPIO MORALES, J.:
On complaint of Cyra May Francisco Buenafe, accused-appellant
Ronnie Rullepa y Guinto was charged with Rape before the
Regional Trial Court (RTC) of Quezon City allegedly committed
as follows:
That on or about the 17th day of November, 1995, in
Quezon City, Philippines, the said accused, by means
of force and intimidation, to wit: by then and there
willfully, unlawfully and feloniously removing her
parity, kissing her lips and vagina and thereafter
rubbing his penis and inserting the same to the inner
portion of the vagina of the undersigned complainant,
3 years of age, a minor, against her will and without
her consent.1
Arraigned on January 15, 1996, accused-appellant pleaded not
guilty.2
From the testimonies of its witnesses, namely Cyra May,3 her
mother Gloria Francisco Buenafe, Dr. Cristina V. Preyra, and
SPO4 Catherine Borda, the prosecution established the following
facts:
On November 20, 1995, as Gloria was about to set the table for
dinner at her house in Quezon City, Cyra May, then only three
and a half years old, told her, "Mama, si kuya Ronnie lagay niya
titi niya at sinaksak sa puwit at sa bibig ko."
"Kuya Ronnie" is accused-appellant Ronnie Rullepa, the
Buenafes' house boy, who was sometimes left with Cyra May at
home.
Gloria asked Cyra May how many times accused-appellant did
those things to her, to which she answered many times.
Pursuing, Gloria asked Cyra May what else he did to her, and
Cyra May indicated the room where accused-appellant slept and
pointed at his pillow.
As on the night of November 20, 1995 accused-appellant was
out with Gloria's husband Col. Buenafe,4 she waited until their
arrival at past 11:00 p.m. Gloria then sent accused-appellant out
on an errand and informed her husband about their daughter's
plaint. Buenafe thereupon talked to Cyra May who repeated
what she had earlier told her mother Gloria.
When accused-appellant returned, Buenafe and Gloria verified
from him whether what Cyra May had told them was true.
Ronnie readily admitted doing those things but only once, at
4:00 p.m. of November 17, 1995 or three days earlier. Unable to

EVIDENCE

contain her anger, Gloria slapped accused-appellant several

times.
Since it was already midnight, the spouses waited until the
following morning to bring accused-appellant to Camp Karingal
where he admitted the imputations against him, on account of
which he was detained. Gloria's sworn statement5 was then
taken.6
Recalling what accused-appellant did to her, Cyra May declared
at the witness stand: "Sinaksak nya ang titi sa pepe ko, sa puwit
ko, at sa bunganga," thus causing her pain and drawing her to
cry. She added that accused-appellant did these to her twice in
his bedroom.
Dr. Ma. Cristina V. Preyra, the Medico-Legal Officer and Chief of
the Biological Science Branch of the Philippine National Police
Crime Laboratory who examined Cyra May, came up with her
report dated November 21, 1995,7 containing the following
findings and conclusions:
FINDINGS:
GENERAL AND EXTRA GENITAL:
Fairly developed, fairly nourished and coherent
female child subject. Breasts are undeveloped.
Abdomen is flat and soft.
GENITAL:
There is absence of pubic hair. Labia majora are full,
convex and coaptated with congested and abraded
labia minora presenting in between. On
separating the same is disclosed an abraded posterior
fourchette and an elastic, fleshy type intact hymen.
External vaginal orifice does not admit the tip of the
examining index finger.
xxx

xxx

xxx

CONCLUSION:
Subject is in virgin state physically.
There are no external signs of recent application of any form of
trauma at the time of examination. (Emphasis supplied.)
By Dr. Preyra's explanation, the abrasions on the labia minora
could have been caused by friction with an object, perhaps an
erect penis. She doubted if riding on a bicycle had caused the
injuries.8
The defense's sole witness was accused-appellant, who was 28
and single at the time he took the witness stand on June 9,
1997. He denied having anything to do with the abrasions found
in Cyra May's genitalia, and claimed that prior to the alleged
incident, he used to be ordered to buy medicine for Cyra May
who had difficulty urinating. He further alleged that after he
refused to answer Gloria's queries if her husband Buenafe,
whom he usually accompanied whenever he went out of the
house, was womanizing, Gloria would always find fault in him.

AGUSTIN, E.P. | 14

He suggested that Gloria was behind the filing of the complaint.

Thus:
q
According to them you caused the abrasions
found in her genital?

THE COURT A QUO ERRED ON (sic) RULING THAT

THE ACCUSED-APPELLANT'S SILENCE DURING TRIAL
AMOUNTED TO AN IMPLIED ADMISSION OF GUILT.
III

a That is not true, sir,

q

THE COURT A QUO ERRED IN FINDING THAT THE

GUILT OF THE ACCUSED-APPELLANT FOR THE
CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.

If that is not true, what is the truth?

a As I have mentioned earlier that before I started

working with the family I was sent to Crame to buy
medicine for the daughter because she had difficulty
in urinating.
q
Did you know why the child has difficulty in
urinating?
a No, I do not know, sir.
q
And how about the present complaint filed
against you, the complaint filed by the mother of the
victim?
a I did not do it, sir.
q
What is the truth, what can you say about this
present complaint filed against you?
a As I said Mrs. Buenafe got mad at me because after
I explained to her that I was going with her gusband
(sic) to the children of the husband with a former
marriage.9
Finding for the prosecution, Branch 96 of the Quezon City RTC
rendered judgment, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding
accused RONNIE RULLEPA y GUINTO guilty beyond
reasonable doubt of rape, and he is accordingly
sentenced to death.
The accused is ordered to pay CYRA MAE BUENAFE
the amount of P40,000.00 as civil indemnity.
Costs to be paid by the accused.10 (Italics in the
original.)
Hence, this automatic review, accused-appellant assigning the
following errors to the trial court:
I
THE COURT A QUO ERRED IN CONSIDERING AS
ADMISSIBLE
IN
EVIDENCE
THE
ACCUSEDAPPELLANT'S ADMISSION.

IV
THE COURT A QUO GRAVELY ERRED IN IMPOSING
THE SUPREME PENALTY OF DEATH UPON THE
ACCUSED-APPELLANT.11 (Emphasis supplied.)
Accused-appellant assails the crediting by the trial court, as the
following portion of its decision shows, of his admission to Gloria
of having sexually assaulted Cyra May:
In addition, the mother asserted that Rullepa had
admitted Cyra Ma[y]'s complaint during the
confrontation in the house. Indeed, according to the
mother, the admission was even expressly qualified
by Rullepa's insistence that he had committed the
sexual assault only once, specifying the time thereof
as 4:00 pm of November 17, 1995. That qualification
proved that the admission was voluntary and true. An
uncoerced and truthful admission like this should be
absolutely admissible and competent.
xxx

xxx

xxx

Remarkably, the admission was not denied by the

accused during trial despite his freedom to deny it if
untrue. Hence, the admission became conclusive
upon him.12 (Emphasis supplied.)
To accused-appellant, the statements attributed to him are
inadmissible since they were made out of fear, having been
elicited only after Cyra May's parents "bullied and questioned
him." He thus submits that it was error for the trial court to take
his failure to deny the statements during the trial as an
admission of guilt.
Accused-appellant's submission does not persuade. The trial
court considered his admission merely as an additional ground
to convince itself of his culpability. Even if such admission, as
well as the implication of his failure to deny the same, were
disregarded, the evidence suffices to establish his guilt beyond
reasonable doubt.
The plain, matter-of-fact manner by which Cyra May described
her abuse in the hands of her Kuya Ronnie is an eloquent
testament to the truth of her accusations. Thus she testified on
direct examination:
q
you?

Do you recall if Ronnie Rullepa did anything to

Yes, sir.

II

EVIDENCE

AGUSTIN, E.P. | 15

What did he do to you?

Is this titi of your kuya Ronnie a part of his

body?

a
"Sinaksak nya ang titi sa pepe ko, sa puwit ko,
at sa bunganga"

Opo.

How many times did he do that to you?

Was that in the head of kuya Ronnie?

Twice, sir.

No, sir.

Which part of his body that titi located?

xxx

xxx

xxx

q
you?

Do you remember when he did these things to

Opo.

When was that?

(Witness pointing to her groin area)

Court:
Continue

a
When my mother was asleep, he put he
removed my panty and inserted his penis inside my
vagina, my anus and my mouth, sir.
xxx

xxx

xxx

q
After your Kuya Ronnie did those things to
you what did you feel?
a
"Sabi nya ganito (Witness putting her finger in
her lips) Nasaktan po ako at umiyak po ako".
q

Did you cry because of hurt?

Yes.

What part of your body hurt?

xxx

Cyra May reiterated her testimony during cross-examination,

providing more revolting details of her ordeal:
q
So, you said that Kuya Ronnie did something
to you what did he do to you on November 17, 1995?

Why were you in that room?

Gusto nya po matulog ako sa kuwarto niya.

q
When you were in that room, what did Kuya
Ronnie do to you?
a

xxx

xxx

q
When you said that your kuya Ronnie inserted
his penis into your organ, into your mouth, and into
your anus, would you describe what his penis?
a

It is a round object, sir.

Court:

EVIDENCE

"Hinubo po niya ang panty ko."

q
And after he remove your panty, what did
Kuya Ronnie do, what did he do to you?
He inserted his penis to my organ, sir.

q
Why did kuya Ronnie, was kuya Ronnie
already naked or he was already wearing any
clothing?
a

Still had his clothing on, sir.

q
So, where did his penis, saan lumabas ang
penis ni Kuya Ronnie?
a
Dito po, (Witness referring or pointing to her
groin area)

a
"Sinaksak nga yong titi nya". He inserted his
penis to my organ and to my mouth, sir.
xxx

xxx

a
"Pepe ko po." When I went to the bathroom
to urinate, I felt pain in my organ, sir.13

xxx

xxx

xxx

xxx

q
So, that's the and at the time, you did not
cry and you did not shout for help?
a
Sabi nya po, not to make any noise because
my mother might be roused from sleep.
q

How long was kuya Ronnie did that to you?

Matagal po.

AGUSTIN, E.P. | 16

q
After kuya Ronnie scrub his penis to your
vagina, what other things did he do?
a
After that he inserted his penis to my mouth,
and to my anus, sir.
q

You did not complain and you did not shout?

I cried, sir.14

Accused-appellant draws attention to the statement of Cyra May

that he was not in the house on November 17 (1995), as
reflected in the following transcript of her testimony:
q
Is it not a fact that you said a while ago that
when your father leaves the house, he [was] usually
accompanied by your kuya Ronnie?
a

Opo.

q
Why is it that Kuya Ronnie was in the house
when your father left the house at that time, on
November 17?
a

He was with Kuya Ronnie, sir.

q
So, it is not correct that kuya Ronnie did
something to you because your kuya Ronnie [was]
always with your Papa?
a

Yes, sir.15

The above-quoted testimony of Cyra May does not indicate the

time when her father Col. Buenafe left their house on November
17, 1995 with accused-appellant and, thus, does not preclude
accused-appellant's commission of rape on the same date. In
any event, a young child is vulnerable to suggestion, hence, her
affirmative response to the defense counsel's above-quoted
leading questions.
As for the variance in the claim regarding when Gloria was
informed of the rape, Gloria having testified that she learned of
it on November 20, 199516 while Cyra May said that immediately
after the incident, she awakened her mother who was in the
adjacent room and reported it:17 This is a minor matter that
does not detract from Cyra May's categorical, material testimony
that accused-appellant inserted his penis into her vagina.
Accused-appellant goes on to contend that Cyra May was
coached, citing the following portion of her testimony:
q
"Yong sinabi mong sinira nya ang buhay mo,"
where did you get that phrase?
a

It was the word of my Mama, sir.18

On the contrary, the foregoing testimony indicates that Cyra May

was really narrating the truth, that of hearing her mother utter
"sinira niya ang buhay mo."
Accused-appellant's suggestion that Cyra May merely imagined
the things of which he is accused, perhaps getting the idea from

EVIDENCE

television programs, is preposterous. It is true that "the ordinary

child is a `great weaver of romances,"' and her "imagination
may induce (her) to relate something she has heard or read in a
story as personal experience."19 But Cyra May's account is hardly
the stuff of romance or fairy tales. Neither is it normal TV fare, if
at all.
This Court cannot believe that a victim of Cyra May's age could
concoct a tale of defloration, allow the examination of her
private parts, and undergo the expense, trouble, inconvenience,
not to mention the trauma of public trial."20
Besides, her testimony is corroborated by the findings of Dr.
Preyra that there were abrasions in her labia minora, which she
opined, could have been caused by friction with an erect penis.
This Court thus accords great weight to the following
assessment of the trial court regarding the competency and
credibility of Cyra May as a witness:
Her very tender age notwithstanding, Cyra Ma(y)
nonetheless appeared to possess the necessary
intelligence and perceptiveness sufficient to invest her
with the competence to testify about her experience.
She might have been an impressionable child as all
others of her age are but her narration of Kuya
Ronnie's placing his "titi" in her "pepe" was certainly
one which could not be considered as a common
child's tale. Her responses during the examination of
counsel and of the Court established her
consciousness of the distinction between good and
bad, which rendered inconceivable for her to describe
a "bad" act of the accused unless it really happened
to her. Needless to state, she described the act of the
accused as bad. Her demeanor as a witness
manifested during trial by her unhesitant,
spontaneous, and plain responses to questions
further enhanced her claim to credit and
trustworthiness.21 (Italics in the original.)
In a futile attempt at exculpation, accused-appellant claims that
even before the alleged incident Cyra May was already suffering
from pain in urinating. He surmises that she could have
scratched herself which caused the abrasions. Dr. Preyra,
however, was quick to rule out this possibility. She stated
categorically that that part of the female organ is very sensitive
and rubbing or scratching it is painful.22 The abrasions could not,
therefore, have been self-inflicted.
That the Medical-Legal Officer found "no external signs of recent
application of any form of trauma at the time of the
examination" does not preclude accused-appellant's conviction
since the infliction of force is immaterial in statutory rape.23
More. That Cyra May suffered pain in her vagina but not in her
anus despite her testimony that accused-appellant inserted his
penis in both orifices does not diminish her credibility. It is
possible that accused-appellant's penis failed to penetrate her
anus as deeply as it did her vagina, the former being more
resistant to extreme forces than the latter.
Accused-appellant's imputation of ill motive on the part of Gloria
is puerile. No mother in her right mind would subject her child to
the humiliation, disgrace and trauma attendant to a prosecution
for rape if she were not motivated solely by the desire to
incarcerate the person responsible for the child's defilement.24
Courts are seldom, if at all, convinced that a mother would stoop

AGUSTIN, E.P. | 17

so low as to subject her daughter to physical hardship and

shame concomitant to a rape prosecution just to assuage her
own hurt feelings.25
Alternatively, accused-appellant prays that he be held liable for
acts of lasciviousness instead of rape, apparently on the basis of
the following testimony of Cyra May, quoted verbatim, that he
merely "scrubbed" his penis against her vagina:
q
Is it not a fact that kuya Ronnie just made
some scrubbed his penis into your vagina?
a

Yes, sir.26

Dr. Preyra, however, found abrasions in the labia minora, which

is "directly beneath the labia majora,"27 proving that there was
indeed penetration of the vagina, not just a mere rubbing or
"scrubbing" of the penis against its surface.
In fine, the crime committed by accused-appellant is not merely
acts of lasciviousness but statutory rape.
The two elements of statutory rape are (1) that the accused had
carnal knowledge of a woman, and (2) that the woman is below
twelve years of age.28 As shown in the previous discussion, the
first element, carnal knowledge, had been established beyond
reasonable doubt. The same is true with respect to the second
element.
The victim's age is relevant in rape cases since it may constitute
an element of the offense. Article 335 of the Revised Penal
Code, as amended by Republic Act No. 7659,29 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:
xxx

xxx

xxx.

3. When the woman is under twelve years of age .

..
xxx

xxx

xxx.

The crime of rape shall be punished by reclusion

perpetua.
xxx

xxx

xxx.

Furthermore, the victim's age may constitute a qualifying

circumstance, warranting the imposition of the death
sentence. The same Article states:
The death penalty shall also be imposed if the crime
of rape is committed with any of the following
attendant circumstances:

EVIDENCE

xxx

xxx

xxx.

4. when the victim is . . . a child below seven (7)

years old.
xxx

Yes, Sir.

q
And when he did not actually penetrated
your vagina?
a

1. when the victim is under eighteen (18) years of

age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity
with the third civil degree, or the common-law spouse
of the parent of the victim:

xxx

xxx.

Because of the seemingly conflicting decisions regarding the

sufficiency of evidence of the victim's age in rape cases, this
Court, in the recently decided case of People v. Pruna,30
established a set of guidelines in appreciating age as an element
of the crime or as a qualifying circumstance, to wit:
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and
school records which show the date of birth of the
victim would suffice to prove age.
3. If the certificate of live birth or authentic document
is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victim's mother or a member of the family either
by affinity or consanguinity who is qualified to testify
on matters respecting pedigree such as the exact age
or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall
be sufficient under the following circumstances:
a. If the victim is alleged to be below 3
years of age and what is sought to be
proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7
years of age and what is sought to be
proved is that she is less than 12 years
old;
c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less
than 18 years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the victim's
mother or relatives concerning the victim's age, the
complainant's testimony will suffice provided that it is
expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence
regarding age shall not be taken against him.
6. The trial court should always make a categorical
finding as to the age of the victim.

AGUSTIN, E.P. | 18

Applying the foregoing guidelines, this Court in the Pruna case

held that the therein accused-appellant could only be sentenced
to suffer the penalty of reclusion perpetua since:
. . . no birth certificate or any similar authentic
document, such as a baptismal certificate of LIZETTE,
was presented to prove her age. . . . .
xxx

xxx

xxx.

However, the Medico-Legal Report relied upon by the

trial court does not in any way prove the age of
LIZETTE, for there is nothing therein which even
mentions her age. Only testimonial evidence was
presented to establish LIZETTE's age. Her mother,
Jacqueline, testified (that the victim was three years
old at the time of the commission of the crime).
xxx

xxx

xxx

Likewise, LIZETTE testified on 20 November 1996, or

almost two years after the incident, that she was 5
years old. However, when the defense counsel asked
her how old she was on 3 January 1995, or at the
time of the rape, she replied that she was 5 years old.
Upon further question as to the date she was born,
she could not answer.
For PRUNA to be convicted of rape in its qualified
form and meted the supreme penalty of death, it
must be established with certainty that LIZETTE was
below 7 years old at the time of the commission of
the crime. It must be stressed that the severity of the
death penalty, especially its irreversible and final
nature once carried out, makes the decision-making
process in capital offenses aptly subject to the most
exacting rules of procedure and evidence.
In view of the uncertainty of LIZETTE's exact age,
corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document
should be introduced in evidence in order that the
qualifying circumstance of "below seven (7) years old"
is appreciated against the appellant. The lack of
objection on the part of the defense as to her age did
not excuse the prosecution from discharging its
burden. That the defense invoked LIZETTE's tender
age for purposes of questioning her competency to
testify is not necessarily an admission that she was
below 7 years of age when PRUNA raped her on 3
January 1995. Such being the case, PRUNA cannot be
convicted of qualified rape, and hence the death
penalty cannot be imposed on him.
However, conformably with no. 3 (b) of the foregoing
guidelines, the testimony of LIZETTE's mother that
she was 3 years old at the time of the commission of
the crime is sufficient for purposes of holding PRUNA
liable for statutory rape, or rape of a girl below 12
years of age. Under the second paragraph of Article
335, as amended by R.A. No. 7659, in relation to no.
3 of the first paragraph thereof, having carnal
knowledge of a woman under 12 years of age is
punishable by reclusion perpetua. Thus, the penalty
to be imposed on PRUNA should be reclusion
perpetua, and not death penalty. (Italics in the
original.)

EVIDENCE

Several cases31 suggest that courts may take "judicial notice" of

the appearance of the victim in determining her age. For
example, the Court, in People v. Tipay,32 qualified the ruling in
People v. Javier,33 which required the presentation of the birth
certificate to prove the rape victim's age, with the following
pronouncement:
This does not mean, however, that the presentation
of the certificate of birth is at all times necessary to
prove minority. The minority of a victim of tender age
who may be below the age of ten is quite manifest
and the court can take judicial notice thereof. The
crucial years pertain to the ages of fifteen to
seventeen where minority may seem to be dubitable
due to one's physical appearance. In this situation,
the prosecution has the burden of proving with
certainty the fact that the victim was under 18 years
of age when the rape was committed in order to
justify the imposition of the death penalty under the
above-cited provision. (Emphasis supplied.)
On the other hand, a handful of cases34 holds that courts,
without the requisite hearing prescribed by Section 3, Rule 129
of the Rules of Court,35 cannot take judicial notice of the victim's
age.
Judicial notice signifies that there are certain "facta probanda,"
or propositions in a party's case, as to which he will not be
required to offer evidence; these will be taken for true by the
tribunal without the need of evidence.36 Judicial notice, however,
is a phrase sometimes used in a loose way to cover some other
judicial action. Certain rules of Evidence, usually known under
other names, are frequently referred to in terms of judicial
notice.37
The process by which the trier of facts judges a person's age
from his or her appearance cannot be categorized as judicial
notice. Judicial notice is based upon convenience and expediency
for it would certainly be superfluous, inconvenient, and
expensive both to parties and the court to require proof, in the
ordinary way, of facts which are already known to courts.38 As
Tundag puts it, it "is the cognizance of certain facts which
judges may properly take and act on without proof because
they already know them." Rule 129 of the Rules of Court, where
the provisions governing judicial notice are found, is entitled
"What Need Not Be Proved." When the trier of facts observes
the appearance of a person to ascertain his or her age, he is not
taking judicial notice of such fact; rather, he is conducting an
examination of the evidence, the evidence being the
appearance of the person. Such a process militates against the
very concept of judicial notice, the object of which is to do away
with the presentation of evidence.
This is not to say that the process is not sanctioned by the Rules
of Court; on the contrary, it does. A person's appearance, where
relevant, is admissible as object evidence, the same being
addressed to the senses of the court. Section 1, Rule 130
provides:
SECTION 1. Object as evidence. Objects as
evidence are those addressed to the senses of the
court. When an object is relevant to the fact in issue,
it may be exhibited to, examined or viewed by the
court.
"To be sure," one author writes, "this practice of inspection by
the court of objects, things or persons relevant to the fact in

AGUSTIN, E.P. | 19

dispute, has its roots in ancient judicial procedure."39 The author

proceeds to quote from another authority:

question of the age of the defendant, Rosario

Sabacahan, said:

"Nothing is older or commoner in the administration

of law in all countries than the submission to the
senses of the tribunal itself, whether judge or jury, of
objects which furnish evidence. The view of the land
by the jury, in real actions, of a wound by the judge
where mayhem was alleged, and of the person of
one alleged to be an infant, in order to fix his
age, the inspection and comparison of seals, the
examination of writings, to determine, whether they
are (`)blemished,(') the implements with which a
crime was committed or of a person alleged, in a
bastardy proceeding, to be the child of another, are
few illustrations of what may be found abundantly in
our own legal records and textbooks for seven
centuries past."40 (Emphasis supplied.)

"The defendant, Rosario Sabacahan,

testified that he thought that he was about
17 years of age, but judging by his
appearance he is a youth 18 or 19 years
old. He has shown that he has no positive
information on the subject and no effort
was made by the defense to prove the fact
that he is entitled to the mitigating
circumstance of article 9, paragraph 2, of
the Penal code, which fact it is held to be
incumbent upon the defense to establish
by satisfactory evidence in order to enable
the court to give an accused person the
benefit of the mitigating circumstance."

A person's appearance, as evidence of age (for example, of

infancy, or of being under the age of consent to
intercourse), is usually regarded as relevant; and, if so, the
tribunal may properly observe the person brought before it.41
Experience teaches that corporal appearances are approximately
an index of the age of their bearer, particularly for the marked
extremes of old age and youth. In every case such evidence
should be accepted and weighed for what it may be in each case
worth. In particular, the outward physical appearance of an
alleged minor may be considered in judging his age; a contrary
rule would for such an inference be pedantically over-cautious.42
Consequently, the jury or the court trying an issue of fact may
be allowed to judge the age of persons in court by observation
of such persons.43 The formal offer of the person as evidence is
not necessary. The examination and cross-examination of a
party before the jury are equivalent to exhibiting him before the
jury and an offer of such person as an exhibit is properly
refused.44
This Court itself has sanctioned the determination of an alien's
age from his appearance. In Braca v. Collector of Customs,45 this
Court ruled that:
The customs authorities may also determine from the personal
appearance of the immigrant what his age is. The person of a
Chinese alien seeking admission into the Philippine Islands is
evidence in an investigation by the board of special inquiry to
determine his right to enter; and such body may take into
consideration his appearance to determine or assist in
determining his age and a finding that the applicant is not a
minor based upon such appearance is not without evidence to
support it.
This Court has also implicitly recognized the same process in a
criminal case. Thus, in United States v. Agadas,46 this Court
held:
Rosario Sabacahan testified that he was 17 years of
age; that he had never purchased a cedula; and that
he was going to purchase a cedula the following
January. Thereupon the court asked this defendant
these questions: "You are a pretty big boy for
seventeen." Answer: "I cannot tell exactly because I
do not remember when I was born, but 17 years is
my guess." Court: "If you are going to take
advantage of that excuse, you had better get some
positive evidence to that effect." Answer: "I do not
remember, as I already stated on what date and in
what year I was born." The court, in determining the

EVIDENCE

In United States vs. Estavillo and Perez (10 Off. Gaz.,

1984) Estavillo testified, when the case was tried in
the court below, that he then was only 16 years of
age. There was no other testimony in the record with
reference to his age. But the trial judge said: "The
accused Estavillo, notwithstanding his testimony
giving his age as 16 years, is, as a matter of fact, not
less than 20." This court, in passing upon the age of
Estavillo, held:
"We presume that the trial court reached
this conclusion with reference to the age of
Estavillo from the latter's personal
appearance. There is no proof in the
record, as we have said, which even tends
to establish the assertion that this
appellant understated his age. . . . It is
true that the trial court had an opportunity
to note the personal appearance of
Estavillo for the purpose of determining his
age, and by so doing reached the
conclusion that he was at least 20, just two
years over 18. This appellant testified that
he was only 16, and this testimony stands
uncontradicted. Taking into consideration
the marked difference in the penalties to
be imposed upon that age, we must,
therefore, conclude (resolving all doubts in
favor of the appellants) that the appellants'
ages were 16 and 14 respectively."
While it is true that in the instant case Rosario
testified that he was 17 years of age, yet the trial
court reached the conclusion, judging from the
personal appearance of Rosario, that "he is a youth
18 or 19 years old." Applying the rule enunciated in
the case just cited, we must conclude that there
exists a reasonable doubt, at least, with reference to
the question whether Rosario was, in fact 18 years of
age at the time the robbery was committed. This
doubt must be resolved in favor of the defendant, and
he is, therefore, sentenced to six months of arresto
mayor in lieu of six years ten months and one day of
presidio mayor. . . . .
There can be no question, therefore, as to the admissibility of
a person's appearance in determining his or her age. As to the
weight to accord such appearance, especially in rape cases,
Pruna laid down guideline no. 3, which is again reproduced
hereunder:

AGUSTIN, E.P. | 20

3. If the certificate of live birth or authentic document

is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victim's mother or a member of the family either
by affinity or consanguinity who is qualified to testify
on matters respecting pedigree such as the exact age
or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall
be sufficient under the following circumstances:
a. If the victim is alleged to be below 3
years of age and what is sought to be
proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7
years of age and what is sought to be
proved is that she is less than 12 years
old;
c. If the victim is alleged to be below 12
years of age and what is sought to be
proved is that she is less than 18 years old.
Under the above guideline, the testimony of a relative with
respect to the age of the victim is sufficient to constitute proof
beyond reasonable doubt in cases (a), (b) and (c) above. In
such cases, the disparity between the allegation and the proof of
age is so great that the court can easily determine from the
appearance of the victim the veracity of the testimony. The
appearance corroborates the relative's testimony.
As the alleged age approaches the age sought to be proved, the
person's appearance, as object evidence of her age, loses
probative value. Doubt as to her true age becomes greater and,
following Agadas, supra, such doubt must be resolved in favor of
the accused.
This is because in the era of modernism and rapid
growth, the victim's mere physical appearance is not
enough to gauge her exact age. For the extreme
penalty of death to be upheld, nothing but proof
beyond reasonable doubt of every fact necessary to
constitute the crime must be substantiated. Verily, the
minority of the victim should be not only alleged but
likewise proved with equal certainty and clearness as
the crime itself. Be it remembered that the proof of
the victim's age in the present case spells the
difference between life and death.47

Q
How old was your daughter when there things
happened?
A

3 and years old.

When was she born?

In Manila, May 10, 1992.49

Because of the vast disparity between the alleged age (three

years old) and the age sought to be proved (below twelve
years), the trial court would have had no difficulty ascertaining
the victim's age from her appearance. No reasonable doubt,
therefore, exists that the second element of statutory rape, i.e.,
that the victim was below twelve years of age at the time of the
commission of the offense, is present.
Whether the victim was below seven years old, however, is
another matter. Here, reasonable doubt exists. A mature three
and a half-year old can easily be mistaken for an
underdeveloped seven-year old. The appearance of the victim,
as object evidence, cannot be accorded much weight and,
following Pruna, the testimony of the mother is, by itself,
insufficient.
As it has not been established with moral certainty that Cyra
May was below seven years old at the time of the commission of
the offense, accused-appellant cannot be sentenced to suffer the
death penalty. Only the penalty of reclusion perpetua can be
imposed upon him.
In line with settled jurisprudence, the civil indemnity awarded by
the trial court is increased to P50,000.00. In addition, Cyra May
is entitled to an award of moral damages in the amount of
P50,000.00.50
WHEREFORE, the Decision of the Regional Trial Court of
Quezon City, Branch 96, is AFFIRMED with MODIFICATION.
Accused-appellant Ronnie Rullepa y Guinto is found GUILTY of
Statutory Rape, defined and punished by Article 335 (3) of the
Revised Penal Code, as amended, and is sentenced to suffer the
penalty of reclusion perpetua. He is ordered to pay private
complainant, Cyra May Buenafe y Francisco, the amount of
P50,000.00 as civil indemnity and P50,000.00 as moral damages.
SO ORDERED.

In the present case, the prosecution did not offer the victim's
certificate of live birth or similar authentic documents in
evidence. The victim and her mother, however, testified that she
was only three years old at the time of the rape. Cyra May's
testimony goes:
q

Your name is Cyra Mae is that correct?

Yes, sir.

And you are 3 years old?

Yes, sir.48

That of her mother goes:

EVIDENCE

AGUSTIN, E.P. | 21

FIRST DIVISION
[G.R. No. 80505 : December 4, 1990.]
192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MARIO TANDOY y LIM, Defendant-Appellant.

DECISION

CRUZ, J.:

The decision of the Regional Trial Court of Makati,

Branch 133 dated October 13, 1987, convicting Mario
Tandoy of the crime of violation of Art. II, Sec. 4 of Rep.
Act No. 6425 known as the Dangerous Drugs Act of
1972, is before us on appeal.
The information against the accused-appellant read as
follows:
That on or about the 27th day of May 1986, in the
Municipality of Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused without being authorized by law,
did then and there willfully, unlawfully and feloniously
sell eight (8) pieces of dried marijuana flowering tops,
two (2) pieces of dried marijuana flowering tops and
crushed dried marijuana flowering tops, which are
prohibited drug, for and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty.
After trial, Judge Buenaventura J. Guerrero rendered a
decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y
Lim guilty beyond reasonable doubt of violation
of Sec. 4, Art. II, Rep. Act No. 6425, as
amended, and is hereby sentenced to life
imprisonment and to pay a fine of P20,000.00
and cost.: nad
The marijuana confiscated in this case is
declared confiscated and forfeited and ordered
turned over to the Dangerous Drugs Board for
proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of
errors in this appeal:
1. The Court a quo erred in finding accused
guilty beyond reasonable doubt of the crime
charged despite lack of evidence to prove that
he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in
evidence against the accused Exh. "E-2-A"
which is merely a xerox copy of the P10.00 bill
allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as
follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of
the Makati Police Station dispatched Pfc. Herino de la
Cruz, and Detectives Pablo R. Singayan, Nicanor
Candolesas, Luisito de la Cruz, Estanislao Dalumpines,

EVIDENCE

Antonio Manalastas and Virgilio Padua to conduct a buybust operation at Solchuaga St., Barangay Singkamas,
Makati.
The target area was a store along the said street, and
Singayan was to pose as the buyer. He stood alone near
the store waiting for any pusher to approach. The other
members
of
the
team
strategically
positioned
themselves. Soon, three men approached Singayan. One
of them was the accused-appellant, who said without
preamble: "Pare, gusto mo bang umiskor?" Singayan
said yes. The exchange was made then and there two
rolls/pieces of marijuana for one P10.00 and two P5.00
bills marked ANU (meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy.
Manalastas and Candolesas made a body search of the
accused-appellant and took from him the marked
money, as well as eight more rolls/foils of marijuana and
crushed leaves.: nad
The arresting officers brought Tandoy to
the Anti-Narcotics Unit, Makati Police
investigation by Detective Marvin Pajilan.
appellant chose to remain silent after
informed of his constitutional rights.

the Office of
Station, for
The accusedhaving been

These events were narrated under oath by De la Cruz,

Singayan and Pajilan. 1 Microscopic, chemical and
chromotographic examination was performed on the
confiscated marijuana by Raquel P. Angeles, forensic
chemist of the National Bureau of Investigation, who
later testified that the findings were positive. The
marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a
different story. His testimony was that from 1:30 to
4:00 p.m. of the day in question, he was playing "cara y
cruz" with 15 other persons along Solchuaga St. when
somebody suddenly said that policemen were making
arrests. The players grabbed the bet money and
scampered. However, he and a certain Danny (another
"cara y cruz" player) were caught and taken to the
Narcotics Command headquarters in Makati. There they
were mauled and warned that if they did not point to
their fellow pushers, they would rot in jail. The accusedappellant denied he had sold marijuana to Singayan and
insisted the bills taken from him were the bet money he
had grabbed at the "cara y cruz" game. 3
The trial court, which had the opportunity to observe the
demeanor of the witnesses and to listen to their
respective testimonies, gave more credence to the
statements of the arresting officers. Applying the
presumption that they had performed their duties in a
regular manner, it rejected Tandoy's uncorroborated
allegation that he had been manhandled and framed.
Tandoy had not submitted sufficient evidence of his
charges, let alone his admission that he had no quarrel
with the peace officers whom he had met only on the
day of his arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the
principal witness for the prosecution was actuated by
improper motives, the presumption is that he was not so
actuated and his testimony is entitled to full faith and
credit.
Tandoy submits that "one will not sell this prohibited
drug to another who is a total stranger until the seller is
certain of the identity of the buyer."

AGUSTIN, E.P. | 22

The conjecture must be rejected.: nad

In People v. Paco, 5 this Court observed:
Drug-pushing when done on a small level as in this case
belongs to that class of crimes that may be committed
at anytime and at any place. After the offer to buy is
accepted and the exchange is made, the illegal
transaction is completed in a few minutes. The fact that
the parties are in a public place and in the presence of
other people may not always discourage them from
pursuing their illegal trade as these factors may even
serve to camouflage the same. Hence, the Court has
sustained the conviction of drug pushers caught selling
illegal drugs in a billiard hall (People v. Rubio, G.R. No.
66875, June 19, 1986, 142 SCRA 329; People v.
Sarmiento, G.R. No. 72141, January 12, 1987, 147
SCRA 252), in front of a store (People vs. Khan, supra)
along a street at 1:45 p.m. (People v. Toledo, G.R. No.
67609, November 22, 1985, 140 SCRA 259), and in
front of a house (People v. Policarpio, G.R. No. 69844,
February 23, 1988).

appellant with proof beyond reasonable doubt of his

guilt. He must therefore suffer the penalty prescribed by
law for those who would visit the scourge of drug
addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the
challenged decision AFFIRMED in toto, with costs against
the accused-appellant.: nad
SO ORDERED
Narvasa (Chairman), Gancayco, Grio-Aquino and
Medialdea, JJ., concur.

As the Court has also held, "What matters is not an

existing familiarity between the buyer and the seller but
their agreement and the acts constituting the sale and
delivery of the marijuana leaves." 6
Under the second assigned error, the accused-appellant
invokes the best evidence rule and questions the
admission by the trial court of the xerox copy only of the
marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted
that contention thus:
This assigned error centers on the trial court's admission
of the P10.00 bill marked money (Exh. E-2-A) which,
according to the appellant, is excluded under the best
evidence rule for being a mere xerox copy. Apparently,
appellant erroneously thinks that said marked money is
an ordinary document falling under Sec. 2, Rule 130 of
the Revised Rules of Court which excludes the
introduction of secondary evidence except in the five (5)
instances mentioned therein.:-cralaw
The best evidence rule applies only when the contents of
the document are the subject of inquiry. Where the
issue is only as to whether or not such document was
actually executed, or exists, or in the circumstances
relevant to or surrounding its execution, the best
evidence rule does not apply and testimonial evidence is
admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op.
cit., p. 78.)
Since the aforesaid marked money was presented by the
prosecution solely for the purpose of establishing its
existence and not its contents, other substitutionary
evidence, like a xerox copy thereof, is therefore
admissible without the need of accounting for the
original.
Moreover, the presentation at the trial of the "buy-bust
money" was not indispensable to the conviction of the
accused-appellant because the sale of the marijuana had
been adequately proved by the testimony of the police
officers. So long as the marijuana actually sold by the
accused-appellant had been submitted as an exhibit, the
failure to produce the marked money itself would not
constitute a fatal omission.
We are convinced from the evidence on record that the
prosecution
has
overcome
the
constitutional
presumption of innocence in favor of the accused-

EVIDENCE

AGUSTIN, E.P. | 23

RULE 130: Rules of Admissibility

Sec. 9 - Sec 19: Parol Evidence Rule;
Interpretation of Documents
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 55691

May 21, 1992

ESPERANZA BORILLO, in her behalf and in behalf of her

children, petitioner,
vs.
HONORABLE COURT OF APPEALS and CATALINA
BORILLO, respondents.

Crisostomo F. Parias for petitioner.

DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the
Rules of Court filed on 24 November 1980, petitioner urges this
Court to review and reverse the decision 1 of the Court of
Appeals (Third Division) in C.A.-G.R. No. 64536-R, promulgated
on 3 September 1980, which reversed and set aside the 3 June
1978 decision of Branch II of the then Court of First Instance
(now Regional Trial Court) of Abra in Civil Case No. 1043.
On 10 February 1977, petitioner, for herself and on behalf of her
children, filed before the abovementioned trial court a complaint
against private respondent and Marcos Borillo for the recovery of
several parcels of land located at Bugbuguis, Quillat, Langiden,
Abra particularly described in said complaint, under the first
cause of action, as follows:
(a) A parcel of land (Riceland unirr. and
pastureland) . . . with an area of 1231 sq.
m.; with assessed value in the sum of
P40.00; under Tax Declaration No. 6319 in
the name of Esperanza Borillo, et al.;
(b) A parcel of land (Riceland unirr.) . . .
with an area of 980 sq. m.; with an
assessed value in the sum of P40.00;
under Tax Declaration No. 6320 in the
name of Esperanza Borillo, et al.;
(c) A parcel of land (Riceland unirr.) . . .
with an area of 698 sq. m.; with assessed
value in the sum of P20.00; under Tax
Declaration No. 6321 in the name of
Esperanza Borillo, et al.;
(d) A parcel of land (Cornland) . . . with an
area of 570 sq. m.; with an assessed value
of P20.00; under Tax Declaration No. 6322
in the name of Esperanza Borillo, et al. 2
and one-fifth (1/5) undivided portion of two (2)
parcels of land, also located in the same place as the
above four (4) parcels, particularly described under
the second cause of action, thus:

EVIDENCE

(e) A parcel of land (Riceland unirr.) . . .

with an area of 1440 sq. m.; with an
assessed value of P60.00; under Tax
Declaration No. 1745 in the name of
Venancio Borillo;
(f) A parcel of land (Cornland) . . . with an
area of 684 sq. m.; with an assessed value
of P20.00; under Tax Declaration No. 0746
in the name of Venancio Borillo. 3
The complaint was docketed as Civil Case No. 1043.
In the complaint, petitioner alleges that the abovementioned
parcels (a), (b), (c) and (d) were originally owned by her late
husband, Elpidio Borillo, with whom she had four (4) children,
namely: Patricia, Melecio, Bonifacia and Quirino. Although said
parcels of land were unregistered, they were declared in 1948 in
the name of Elpidio under Tax Declaration Nos. 0731, 0732,
0733 and 0734, respectively. 4 Elpidio had been in peaceful,
public, continuous and uninterrupted possession thereof in
concept of owner even before his marriage to petitioner and
until his death in 1970. After his death, petitioner continued to
possess and cultivate said parcels of land and enjoy the fruits
thereof until sometime in 1971-1972 when private respondent
and Marcos Borillo, Elpidio's siblings, forcibly and unlawfully
dispossessed her of the property. Despite repeated demands,
Marcos and the private respondent refused to return the
property to the petitioner and her children. In 1974, new Tax
Declarations, namely Nos. 6319, 6320, 6321 and 6322 5 for
parcels (a), (b), (c) and (d), respectively, were issued in her
name. Upon the other hand, parcels (e) and (f), also
unregistered, were inherited by Elpidio, his brother Marcos and
sisters Catalina, Aurelia and Rosita, from their father, Venancio
Borillo. Elpidio's 1/5 pro-indiviso share therein was unlawfully
taken by private respondent sometime in 1971; the latter
refused to return it to petitioner and her children, who are
Elpidio's heirs, despite repeated demands.
Petitioner then prays that judgment be rendered declaring her
and her children owners of parcels (a), (b), (c) and (d), as well
as the 1/5 pro-indiviso portion of parcels (e) and (f), and
ordering the private respondent and Marcos Borillo to pay actual
and moral damages plus costs.
In their Answer filed on 14 March 1977, private respondent
claims that parcels (a), (c) and (d) were sold to her by her late
brother Elpidio in 1935, while Marcos Borillo claims that parcel
(b) was sold to him by Elpidio sometime in 1937, long before
Elpidio's marriage to petitioner. Although they did not declare
these parcels for taxation purposes in their respective names,
they immediately took possession and occupied the same as
owners thereof. Private respondent had been paying the realty
taxes on parcels (a), (c) and (d) since 1948 6 and explains her
failure to secure in her name tax declarations for said parcels
during Elpidio's lifetime by alleging that she trusted him because
he was her brother and he had assured her that she could
transfer in her favor the title thereto anytime. After the Second
World War, Elpidio and Rosita, another sibling, sold to her their
respective undivided shares in parcels (e) and (f).
On 15 March 1977, private respondent alone filed an Amended
Answer. On the other hand, on 5 April 1977, Patricia and
Melencio Borillo filed a motion to withdraw as co-plaintiffs on the
ground that they did not authorize their inclusion as such and
that the private respondent is the true and lawful owner of the
land in question. 7

AGUSTIN, E.P. | 24

At the trial, private respondent relied heavily on Exhibit "3", a

private document purportedly showing that Elpidio sold to her all
his property for P40.00, and Exhibit "4", which she claims to be
a deed of sale of parcels (a), (c) and (d) allegedly executed by
Elpidio Borillo in 1935. Upon the other hand, Marcos Borillo
claimed that the deed of sale evidencing the sale to him of
parcel (b) was lost during the Second World War. Both parties
claim actual possession of the property. Private respondent and
Marcos Borillo even claimed possession for more than thirty (30)
years.
After trial on the merits, the lower court rendered on 3 June
1978 a decision in favor of herein petitioner, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered declaring the
plaintiffs as the true owners of parcels A,
B, C and D described in par. 4 of the
complaint and as co-owners of parcels E
and F described in par. 6 of the complaint
with Rosita Borillo, Aurelia Borillo and the
defendants Catalina Borillo and Marcos
Borillo. With costs against the defendants.
8
The trial court arrived at this decision on the basis of the
following findings of fact:
The claim of ownership by the plaintiffs
with respect to the four parcels of land
described in par. 4 of the complaint is
preponderantly
established
by
Tax
Declaration Nos. 731, 732, 733 and 734,
Exhibits, "A, A-1, A-2 and A-3" for the
plaintiffs. These tax declarations covering
the four parcels of land in question are tax
declarations issued in 1948 and is (sic) in
the name of Elpidio Borillo, husband of
plaintiff Esperanza Borillo. Defendants
never declared it (sic) in their name (sic)
and no action or attempt whatsoever was
made by the defendants to declare it (sic)
in their name (sic) during the lifetime of
Elpidio Borillo. It was only after the death
of Elpidio Borillo and the institution of this
action by the plaintiffs that defendants
took action and strangely declared it (sic)
in their names.
Obviously, the bulk of evidence for the
plaintiffs are (sic) the tax declarations in
the name of Elpidio Borillo which do not
absolutely prove their ownership. But the
circumstances obtaining in this case
renders (sic) the tax declarations
Exhibits "A, A-1, A-2 and A-3", reliable and
predominantly point that plaintiffs are
owners of the four parcels of land
described in par. 4 of the complaint as
against the plaintiffs (sic). First, it will be
noted that Exhibits A, A-1, A-2 and A-3
were prepared and issued long before the
death of Elpidio Borillo. He was then a
bachelor having married the plaintiff
Esperanza Borillo in 1950. Defendant
Catalina Borillo married long before the
2nd World War. Defendant Marcos Borillo

EVIDENCE

likewise married before World War II.

Defendants have properties declared in
their names. Marcos Borillo accompanied
the Assessors who measured the four
parcels of land according to him (sic).
Despite the status of the parties and the
Assessors having been accompanied by
defendant Marcos Borillo, still the four
parcels of land were declared in the name
of Elpidio Borillo. It is unconceivable (sic)
why it was (sic) declared in the name of
Elpidio Borillo, if it does (sic) not belong to
him. True, that tax declarations are not
conclusive proof of ownership, but it
cannot be gainsaid especially in rural areas
like Langiden, Abra where lands are not
surveyed and titled, that tax declarations
are strong evidence of possession and
ownership.
Secondly, the four parcels of land
described in par. 4 of the complaint were
declared in the name of Elpidio Borillo for
29 years and no action whatsoever was
taken by the defendants to have the tax
declarations (Exhibits A, A-1, A-2 and A-3)
be (sic) cancelled and declared the lands
(sic) in their names during the lifetime of
the declared owner Elpidio Borillo and
immediately after his death. It was only in
1977 after the filing of the complaint and
after the plaintiffs caused the cancellation
of Exhibits A, A-1, A-2 and A-3 and
declared the lands in their names when
defendants attempted to declare it (sic)
also in their names. The unfathomable
tolerance of the defendants of having the
four (4) parcels of land be (sic) declared in
the name of their deceased brother, Elpidio
Borillo in 1948 and remained (sic) in his
name after his marriage with (sic) the
plaintiff Esperanza Borillo in 1950 even
(sic) after his death in 1971, is fatal and
strongly negate their (sic) defendants'
claim of ownership. No person like the
defendants will ever allow his/her property
be (sic) declared in the name of another
for twenty-nine (29) years. The fact that
the lands were declared in the name of
Elpidio Borillo for twenty-nine (29) years
coupled by (sic) his actual possession
during his lifetime until his death in 1971
as testified to by Esperanza Borillo and
Clemente Llaneza who is an uninterested
witness strongly outweighed the evidence
for the defendants and convincingly
indicate that the four parcels of land
described in par. 4 of the complaint really
belong to Elpidio Borillo. The claim of
defendants that they are (sic) in actual
possession before World War II up to the
present is persuasively belied by Exhibits
A, A-1, A-2 and A-3 and the testimony of
Clemente Llaneza.
The claim of defendant Catalina Borillo that
she purchased parcels A, C and D
described in par. 4 of the complaint from
her deceased brother Elpidio Borillo before
World War II as evidence (sic) by Exhibits

AGUSTIN, E.P. | 25

"3" and "4" appears unreliable and

incredible. Exhibit "3" which is an
acknowledgment receipt dated May 12,
1946 made no mention of what property
has been sold. There is no evidence of any
transfer of ownership. In fact, there is
nothing clear from the evidence as to what
land of Elpidio Borillo is referred to in
Exhibit "3". From the terms of Exhibit "3"
and the alleged consideration thereof, it
thus becomes obvious that it is only a
receipt evidencing a loan of P40.00.
Exhibit "4" (receipt) which is the main
basis of the claim of ownership by
defendant Catalina Borillo with respect to
parcels A, C and D in par. 4 of the
complaint, appears unreliable and cannot
prevail against the evidence for the
plaintiffs. This Exhibit "4" for defendant
Catalina Borillo is undated and unsigned.
Defendant Catalina Borillo testified that she
does not know the contends of Exhibit "4".
Elpidio Borillo as shown by Exhibit "3" for
defendant Catalina Borillo and Exhibits E
and F for the plaintiffs knows how to write
his name. Yet, Exhibit "4" was not signed
by him. Aside from the patent defects of
Exhibit "4" on its face which renders it
unreliable, it will be noted that during the
pre-trial proceedings, defendant Catalina
Borillo presented Exhibit "4" to support her
claim as alleged in her answer of having
purchased parcels A, C and D from Elpidio
Borillo in 1935. Clearly embodied,
however, in Exhibit "4" are tax declarations
Nos. 0732, 0731 and 0734 which are
indeed tax declarations in 1948 in the
name of Elpidio Borillo. Considering that
Exhibit "4" is a document executed in 1935
according to the defendant Catalina Borillo,
why are Tax Declarations Nos. 731, 732
and 734 which were issued only in 1948
incorporated? The inclusion of non-existent
document (sic) in Exhibit "4" at the time of
its alleged execution absolutely renders
Exhibit
"4"
wholly
unworthy
and
undeserving of any credence. 9
Private respondent appealed from the adverse decision to the
respondent Court. Her co-defendant, Marcos Borillo, did not.
The appeal was docketed as C.A.-G.R. No. 64536-R. In her
Appellant's Brief, private respondent assigns the following errors:
I
THAT THE FACTS RELIED UPON IS (sic)
NOT SUPPORTED BY EVIDENCE.
II
THAT THE DECISION IS
ACCORDANCE WITH LAW.

NOT

IN

On 3 September 1980, the respondent Court promulgated its

decision 10 reversing the decision of the trial court, thus:

EVIDENCE

WHEREFORE, the judgment appealed from

is hereby set aside and another judgment
is hereby rendered declaring defendant
Catalina Borillo as the owner of parcels (a),
(c) and (d) and of the one-fifth portion of
Elpidio Borillo in parcels (e) and (f); that
defendant Marcos Borillo is the owner of
parcel (b); with costs against the plaintiffs.
SO ORDERED.
The respondent Court made the following disquisitions to
support its decision:
We are convinced that the preponderance
of the evidence tilt (sic) heavily in favor of
defendant. Defendant established she has
been in possession in the concept of owner
of said three parcels of land (a), (c) and
(d) since her purchase of the same long
before the war and she cultivated the
same in the concept of owner, paying the
real estate taxes and thereafter declaring it
in her name while Marcos Borillo acquired
parcel (b) from Elpidio since 1938 of which
he took possession in the concept of
owner, and declared the same in his name
paying the real estate taxes. No less than
Melecio Borillo, son of plaintiff Esperanza,
not only withdrew as party plaintiff with his
sister Patricia but he even testified that he
knew from the very mouth of his father
Elpidio while he was still alive that he sold
the property in question to defendant
Catalina Borillo. It has also been shown
that Elpidio Borillo sold his 1/5 portion of
parcels (e) and (f) also before the war to
defendant and she had been in continuous
possession since then in the concept of
owner.
Under Article 1137 of the Civil Code, such
uninterrupted, adverse, open possession
for thirty (30) years by defendants
regardless of their title or good faith
upholds said defendants' right over the
property. (Parcotillo vs. Parcotillo, 12 SCRA
435, 440).
In finding for the plaintiffs the trial court
relied on the tax declarations in the name
of Elpidio as proof that plaintiffs are the
owners of the questioned property since
the property is untitled; that for 29 years
no action was taken by defendants to
declare the property in their name (sic)
and it was only in 1977 after the filing of
the complaint that defendants so declared
the properties in their name (sic); that
Exhibit 4 is unreliable being unsigned by
Elpidio when there is evidence that he
could sign his name; that Exhibit 3 did not
mention the property sold; that Exhibit 4
was made in 1935 as alleged in the answer
but
surprisingly
it
embodied
Tax
Declarations 731, 732 and 734 which were
issued only in 1948; and that the alleged

AGUSTIN, E.P. | 26

sale of the right of Elpidio over parcels (e)

and (f) are without receipts.
We disagree. Declaration of ownership for
taxation
purposes,
or
assessment
declaration and tax receipts do not
constitute evidence of ownership. They are
only prima facie evidence of possession.
(Evangelista vs. Tabayuyong, 7 Phil. 607;
Casimiro vs. Fernandez, 9 Phil. 562)
However, if the holder of a (sic) land
presents a deed of conveyance in his favor
from the former owner thereof to support
his claim of ownership, the declaration of
ownership and tax receipts relative to the
property may be used to prove good faith
on his part in occupying and possessing
the same. (Elumbaring vs. Elumbaring, 12
Phi. 384) And while it is true that tax
receipts do not prove titled (sic) to a land,
nevertheless when considered with the
actual possession of the property by the
applicant, they constitute evidence of great
weight in support of the claim of title of
ownership by prescription. (Viernes vs.
Agpaoa, 41 Phil. 286; Land Registration
and Mortgages by Ventura, pp. 125-126)
Plaintiffs admitted that defendants are in
possession of the lands in question and the
records show that even during the lifetime
of Elpidio, the defendant had been paying
the real property taxes of the property
(Exhs. 1 to 1-I). The sale of parcels (a), (c)
and (d) to defendant is evidenced by
Exhibits 3 and 4. Although Exhibit 3 does
not indicate the property subject of the
sale, such deficiency can be attributed to
the fact that this was a document executed
between brother and sister without the
assistance of a lawyer but testimonial
evidence has been adduced that cured this
defect. True it is that Exhibit 4 appears not
to have been signed by Elpidio and he
merely imprinted a cross over his name
when it appears that he knew how to sign.
However, defendants Catalina and Marcos
Borillo categorically testified that Elpidio
signed his name only by copying a sample.
Hence, it is understandable if Elpidio did
not sign Exhibit 4 for he must not have
been furnished a (sic) guide to be copied.
No evidence was adduced that Exhibit 4
was actually executed in 1935. What was
established is that Elpidio sold said three
parcels to defendant Catalina before the
war. In confirmation of said sale, Exhibit 4
must have been executed on or before
1948 that is why it reflects the Tax
Declarations of said property to be
effective in the same year.
On the other hand, outside of the fact that
the property remained to be declared in
the name of Elpidio plaintiffs have not
adduced any other evidence to buttress
their claim of ownership. Plaintiff
Esperanza paid for the real property taxes
of the property only on June 22, 1977 after

EVIDENCE

the complaint was filed in court. (Exhibit C)

It is not improbable that the reason why
the properties remained in the name of
Elpidio inspite of the fact that it has long
been sold to defendants is because this is
a sale between brother and sister where
mutual trust and confidence is to be
expected. Indeed, during the lifetime of
Elpidio he never questioned the acts of
ownership exercised by the defendants
over the property and even after his death
in
1970,
plaintiff
Esperanza
only
remembered to assert their alleged right in
1976 when she attempted to talk to
defendant who told her it was already sold
to them and yet it was only in 1977 that
the complaint was filed.
Petitioner took this present recourse asking Us to review the
respondent Court's findings of facts and reverse its decision on
the ground that the same is based solely on "speculation,
surmise and conjecture," and that it committed a
"misapprehension of facts."
After private respondent filed her Comment and the petitioner
submitted a Reply, this Court gave due course to the petition 11
and required the petitioner to submit her Brief within thirty (30)
days from notice, 12 which she complied with. 13 Private
respondent subsequently filed her Brief. 14
The petition is meritorious.
To begin with, the respondent Court committed a grave error in
reversing the trial court's judgment insofar as it concerns
defendant Marcos Borillo. As earlier stated, the latter did not
appeal from the trial court's decision. As against him, and more
particularly with respect to parcel (b), the decision has long
become final and the respondent Court is without jurisdiction to
review the same. 15 Otherwise stated, beyond the period to
appeal, a judgment is no longer within the scope of the power of
review of any court. 16 The appeal interposed by private
respondent did not benefit Marcos Borillo because the former
does not have anything to do with parcel (b) and the defense in
respect thereto is exclusive to the latter.
The respondent Court likewise erred in reversing the trial court
and ruling that private respondent is the owner of parcels (a),
(c) and (d) and Elpidio Borillo's 1/5 pro-indiviso share in parcels
(e) and (f).
It is of course settled that the appellate court's findings of fact
are binding and must be respected by this Court. 17 There are,
however, recognized exceptions thereto, 18 among which are
when the factual findings of the trial court and the appellate
court are conflicting, 19 when they are totally devoid of support
in the record or are so glaringly erroneous as to constitute
serious abuse of discretion. 20
These exceptions obtain in the present case.
The fact that parcels (a), (c) and (d) were originally owned by
Elpidio Borillo is not disputed by private respondent. In fact, she
claims to have derived her title over the same from the former
through a sale in 1935. Thus, the question to be resolved is
whether or not Elpidio Borillo did in fact sell the said parcels of
land to the private respondent.

AGUSTIN, E.P. | 27

To substantiate her claim, private respondent presented two (2)

documents, Exhibits "3" and "4". The trial court in its judgment
described Exhibit "3", dated 12 May 1946, as a mere
acknowledgment receipt of a loan of P40.00 and not a sale for it
does not mention any property sold and is not acknowledged
before a notary public. It then concluded that said instrument is
a mere receipt evidencing a loan. On the other hand, Exhibit ''4''
is an undated and unsigned document written in lead pencil on
simple grade paper. The instrument has no witnesses, is not
acknowledged before a notary public and has a mere cross over
the written name of Elpidio Borillo. It was duly proven that
Elpidio knew how to write and sign his name. Although Exhibit
"4" was purportedly executed in 1935, the same mentions Tax
Declaration Nos. 0731, 0732, 0733 and 0734 issued in 1948 in
the name of Elpidio Borillo. Private respondent herself testified
that she had no knowledge of the contents of said instrument.
The trial court ruled Exhibit "4" as "wholly unworthy and
undeserving of any credence."
In reversing the foregoing findings, the respondent Court tried to
justify the deficiencies and discrepancies in Exhibit "3" by saying
that the absence of specifications as to what property was sold
is understandable because the transaction was between brother
and sister. It added that this defect was cured by testimonial
evidence. It made no attempt, however, to explain the variance
in the date of the alleged sale (1935) and the date of the
instrument (1946).
As to Exhibit "4", the respondent Court accepted private
respondent's explanation for the absence of the signature of
Elpidio Borillo on the purported deed of sale saying that contrary
to petitioner's assertion, Elpidio did not really know how to write
his name. Private respondent and Marcos Borillo testified that
Elpidio's signature appeared on his voter's registration record
and voter's ID card 21 only because he was given a sample to
copy. They declared that unlike those occasions, at the time of
the sale, Elpidio was not given any sample to copy; this explains
why he just printed a cross over his name. As to why it mentions
tax declarations issued in 1948, although it is claimed to have
been executed in 1935, the respondent Court theorizes and
speculates that:
. . . In confirmation of said sale, Exhibit 4
must have been executed on or before
1948 that is why it reflects the Tax
Declarations of said property to be
effective in the same year. 22
It is thus clear that what was originally submitted by private
respondent as the original deed of sale was later accepted by
the respondent Court as a deed of confirmation of sale.
Both Exhibits "3" and "4" are private documents. Hence, before
they may be received in evidence, their due execution and
authenticity must first be proven by the party presenting them.
23
At the hearing of this case before the trial court, the
controlling rule on this point was Section 21, Rule 132 of the
Rules of Court which provided:
Sec. 21. Private writing, its execution and
authenticity, how proved. Before any
private writing may be received in
evidence,
its
due
execution
and
authenticity must be proved either:
(a) By anyone who saw the writing
executed;

EVIDENCE

(b) By evidence of the genuineness of the

handwriting of the maker; or
(c) By a subscribing witness.

24

Private respondent did not present anyone who actually saw the
execution of Exhibits "3" and "4", witnessed Elpidio affix his
signature on Exhibit "3" or make the cross over his written name
in Exhibit "4". There are no subscribing witnesses. The due
execution then of Exhibits "3" and "4", as the alleged deeds of
sale transferring title over said parcels of land to private
respondent, was not satisfactorily proven; thus, the same can
not be received in evidence.
Even if We are to assume that Exhibits "3" and "4" are
admissible in evidence, they still do not satisfactorily prove the
transfers of titles over the subject parcels to the private
respondent. As earlier pointed out, Exhibit "3" makes no mention
of any property sold. Hence, it hardly qualifies as a deed of sale.
It suffers from a patent and not just an intrinsic ambiguity. The
respondent Court then committed an error by giving credence to
the testimonies offered to cure such ambiguity. It disregarded
the parol evidence rule then applicable, namely, Section 7, Rule
130 of the Rules of Court, which provided as follows:
Sec. 7. Evidence of written agreement.
When the terms of an agreement have
been reduced to writing, it is to be
considered as containing all such terms,
and, therefore, there can be, between the
parties and their successors in interest, no
evidence of the terms of the agreement
other than the contents of the writing,
except in the following cases:
(a) Where a mistake
or imperfection of the
writing, or its failure
to express the true
intent and agreement
of the parties, or the
validity
of
the
agreement is put in
issue
by
the
pleadings;
(b) When there is an
intrinsic ambiguity in
the writing.
The term "agreement" includes wills.

25

Before parol evidence may be admitted in order to identify,

explain or define the subject matter of a writing, it must first be
shown that the writing itself already contains a description
sufficient to serve as a foundation for the admission of such
parol evidence; the evidence should also be consistent with the
writing. Otherwise stated, in order to admit parol evidence to aid
in the description of the subject matter of a deed or other
writing, there must be a description that will serve as a
foundation for such evidence; the writing must at least give
some data from which the description may be found and made
certain. Parol evidence is not admissible to identify the property
where the description thereof is so vague as to amount to no
description at all. In other words, parol evidence is not permitted
to supply a description, but only to apply it. 26

AGUSTIN, E.P. | 28

In his Commentary on the Rules of Court, 27 former Chief Justice

Manuel V. Moran explains the rule in the evident of patent
ambiguity, as is the case in Exhibit "3":
. . . The rule is that "if the words of a
document are so defective or ambiguous
as to be unmeaning, no evidence can be
given to show what the author of the
document intended to say." (Steph,
Evidence, Art. 91) The reason for the rule,
in the language of Mr. Justice Story, is that
"if the language be too doubtful for any
settled construction, by the admission of
parol evidence you create and do not
merely construe the contract. You attempt
to do that for the party which he has not
chosen to do for himself; and the law very
property denies such an authority to courts
of Justice." (Peisch v. Dickson, Fed. Cas.
No. 10, 911, 1 Mason, 9.) As Lord Bacon
said, "Ambiguitas patens cannot be holpen
by averment." (Bacon, Max., 23) A case of
patent ambiguity is that of a deed wherein
"a parcel of land" without description is
donated. The donation is void. The
uncertainty cannot be explained by parol
evidence. (Wigmore on Evidence, 2d. ed.,
p. 414.) The following appears to be the
most accurate and most comprehensive
statement of the rule regarding patent
ambiguity: "In other words and more
generally, if the court, placing itself in the
situation in which the testator or
contracting party stood at the time of
executing the instrument, and with a full
understanding of the force and import of
the words, cannot ascertain his meaning
and intention from the language of the
instrument, then it is a case of incurable,
hopeless uncertainty and the instrument is,
therefore, so far inoperative and void."
(Palmer v. Albee, 50 Ia., 429, 432, quoting
1 Greenleaf on Evidence, par. 300.)
As to Exhibit "4", We agree with the trial court that it could not
have been prepared in 1935, as contended by private
respondent, because it makes reference to Tax Declarations
issued in 1948, thirteen (13) years later. Common sense and
logic reject such contention. Unfortunately, the respondent Court
belabored the explanation that Exhibit "4" must have been
executed on or before 1948 to confirm the prior sale. This is
unacceptable as it is purely conjectural. Absent any evidence
that it was signed by Elpidio Borillo, it is not difficult to conclude
that this document does not proceed from any legitimate source.
It is one which could easily be fabricated. The trial court did not
then err when it considered Exhibit "4" as "wholly unworthy and
undeserving of any credence."
It is not also true, as was held by the respondent Court, that the
conclusion of the trial court that Elpidio Borillo was in possession
of the property in concept of owner until his death, is based
solely on the tax declarations in his name. As shown earlier, the
court considered the testimonies of the petitioner and one
Clemente Llaneza whom the trial court described as "an
uninterested witness." Thus:
. . . The fact that the lands were declared
in the name of Elpidio Borillo for twentynine (29) years coupled by his actual

EVIDENCE

possession during his lifetime until his

death in 1971 as testified to by Esperanza
Borillo and Clemente Llaneza who is an
uninterested witness strongly outweighed
the evidence for the defendants and
convincingly indicate that the four parcels
of land described in paragraph 4 of the
complaint really belong to Elpidio Borillo. . .
.
It is thus clear that the authorities cited by the respondent Court
on the probative value of the tax declarations favor the herein
petitioner and not the private respondent. For indeed, while tax
declarations and tax receipts do not constitute evidence of
ownership, they are prima facie evidence of possession.
Accordingly, since Elpidio Borillo, during his lifetime, and then
the petitioner, after his death, secured and were issued tax
declarations for the parcels of land in question, and were in fact
in possession thereof, the excuse offered by private respondent
as to her failure to obtain the tax declarations deserves no
consideration at all. The flimsiness or implausibility of the excuse
becomes more apparent when We consider the findings of the
trial court that private respondent has other properties declared
in her name for taxation purposes and that neither she nor
Marcos objected to the measurement by the assessors of the
four (4) parcels for Elpidio Borillo.
The conclusion then is inevitable that the late Elpidio Borillo did
not sell and alienate parcels (a), (c) and (d) to private
respondent.
As to parcels (e) (f), private respondent presented no deed of
sale in her favor.
Private respondent can not likewise seek refuge under a claim of
ownership by virtue of acquisitive prescription.
Acquisitive prescription of dominion requires that there be
public, peaceful and uninterrupted possession in the concept of
owner 28 for a period of ten (10) years, in case of ordinary
prescription, 29 and thirty (30) years, in case of extraordinary
prescription. 30
After reviewing the evidence presented before it, the trial court
concluded that Elpidio Borillo had actual, peaceful and
continuous possession of the subject parcels of land during his
lifetime and until his death in 1970. The respondent Court
reversed this finding and ruled that it was private respondent
who had the possession since her purchase thereof in 1935.
It is a matter of judicial policy to accord the trial court's findings
of facts with the highest respect and not to disturb the same on
appeal unless there are strong and impelling reasons to do so. 31
The reason for this is that trial courts have more opportunity and
facilities to examine factual matters than appellate courts. 32
They are in a better position to assess the credibility of
witnesses, not only by the nature of their testimonies, but also
by
their
demeanor
on
the
stand. 33
In Shauf vs. Court of Appeals,

34

We ruled:

Elementary is the rule that the conclusions

and findings of fact of the trial court are
entitled to great weight on appeal and
should not be disturbed unless for strong

AGUSTIN, E.P. | 29

and cogent reasons. (Vda. de Alberto, et

al. vs. CA, et al., 173 SCRA 436 [1989])
Absent any substantial proof, therefore,
that the trial court's decision was grounded
entirely on speculations, surmises or
conjectures, the same must be accorded
full consideration and respect. This should
be so because the trial court is, after all, in
a much better position to observe and
correctly appreciate the respective parties'
evidence as they were presented.
(Matabuena vs. CA, et al., 173 SCRA 170
[1989])
We find no impelling, compelling or cogent reason to overturn
the findings of fact of the trial court.
WHEREFORE, the instant petition is GRANTED. The challenged
decision of the Court of Appeals is hereby REVERSED and SET
ASIDE and the judgment of the Regional Trial Court of Abra
dated 3 June 1978 in Civil Case No. 1043 is hereby AFFIRMED
and REINSTATED.
SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

EVIDENCE

AGUSTIN, E.P. | 30

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 171036

October 17, 2008

ADELA G. RAYMUNDO, EDGARDO R. RAYMUNDO,

LOURDES R. RAYMUNDO, TERESITA N. RAYMUNDO,
EVELYN R. SANTOS, ZENAIDA N. RAYMUNDO, LUIS N.
RAYMUNDO, JR. and LUCITA R. DELOS REYES, petitioners,
vs.
ERNESTO LUNARIA, ROSALINDA RAMOS and HELEN
MENDOZA, respondents.
DECISION
QUISUMBING, J.:
Assailed in this petition for review are the Court of Appeals
Decision1 dated October 10, 2005 and the Resolution2 dated
January 10, 2006 in CA-G.R. CV No. 75593.
The facts in this case are as follows:
Sometime in May 1996, petitioners approached respondent
Lunaria to help them find a buyer for their property situated at
Marilao, Bulacan with an area of 12,126 square meters for the
amount of P60,630,000. Respondent Lunaria was promised a
5% agents commission in the event that he finds a buyer. After
respondents found a buyer, Cecilio Hipolito, an "Exclusive
Authority to Sell"3 was executed embodying the agreement
made by the parties. After the corresponding Deed of Absolute
Sale of Real Property4 was registered in the Registry of Deeds, a
copy thereof was given to the Far East Bank and Trust Co.,
which was then holding in escrow the amount of P50,000,000 to
be disbursed or paid against the total consideration or price of
the property.
On February 14, 1997, Ceferino G. Raymundo, one of the coowners, advised respondents to go to the bank to receive the
amount of P1,196,000 as partial payment of their total
commission. Also, respondents were instructed to return after
seven days to get the balance of the commission due them.
On February 21, 1997, respondents returned to the bank.
However, the check covering the balance of their commission
was already given by the bank manager to Lourdes R.
Raymundo, the representative of the petitioners. Respondents
tried to get the check from the petitioners, however, they were
told that there is nothing more due them by way of commission
as they have already divided and distributed the balance of the
commissions among their nephews and nieces.
For their part, petitioners counter that there was a subsequent
verbal agreement entered into by the parties after the execution
of the written agreement. Said verbal agreement provides that
the 5% agents commission shall be divided as follows: 2/5 for
the agents, 2/5 for Lourdes Raymundo, and 1/5 for the buyer,
Hipolito. The share given to Lourdes Raymundo shall be in
consideration for the help she would extend in the processing of
documents of sale of the property, the payment of the capital
gains tax to the Bureau of Internal Revenue and in securing an
order from the court. The 1/5 commission given to Hipolito, on

EVIDENCE

the other hand, will be used by him for the payment of realty
taxes.
Hence, for failure of the respondents to receive the balance of
their agents commission, they filed an action for the collection
of a sum of money before the Regional Trial Court of Valenzuela
City, Branch 172. On January 22, 2002, the trial court rendered
a Decision5 in favor of the respondents. The dispositive portion
of said decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1) Ordering the defendants, jointly and severally, to pay the
plaintiffs the amount of P1,834,900.00, representing the unpaid
commission, plus interest thereon at the legal rate from the filing
of this case until fully paid;
2) Ordering the defendants to, jointly and severally, pay the
plaintiffs the amount of P200,000.00 as moral damages and the
amount of P100,000.00 as exemplary damages; and
3) Ordering the defendants [to], jointly and severally, pay the
plaintiffs the amount of P150,000.00 as attorneys fees, plus the
costs of suit.
SO ORDERED.6
Aggrieved, petitioners appealed. In a Decision dated October 10,
2005, the Court of Appeals affirmed the decision of the trial
court with the modification that the amount of moral and
exemplary damages awarded to respondents shall be reduced.
The dispositive portion reads:
WHEREFORE, the appealed Decision dated January 22, 2002 is
affirmed, subject to the modification that the award of moral
damages is reduced to P50,000.00 and exemplary damages to
P25,000.00.
SO ORDERED.7
On October 28, 2005, petitioners filed a Motion for
Reconsideration.8 However, it was denied in a Resolution dated
January 10, 2006. Hence, the instant petition raising the
following issues:
I.
THE HONORABLE COURT SERIOUSLY ERRED IN APPLYING THE
PAROLE EVIDENCE RULE IN THIS CASE (DECISION, PAGE 7,
PARAGRAPH 1). THIS PRINCIPLE HAS NO APPLICATION TO THE
FACTS OF THE INSTANT CASE.
II.
FURTHER, IT ERRED IN REQUIRING, ALBEIT IMPLICITLY, THE
PETITIONERS TO ESTABLISH THE VERBAL AGREEMENT
MODIFYING THE EARLIER WRITTEN AGREEMENT (THE
EXCLUSIVE AUTHORITY TO SELL) BY MORE THAN A
PREPONDERANCE OF EVIDENCE (DECISION, PAGE 8). THIS IS
PLAINLY CONTRARY TO LAW THAT MERELY REQUIRES
PREPONDERANCE OF EVIDENCE IN CIVIL CASES.
III.

AGUSTIN, E.P. | 31

FINALLY, EVEN CONCEDING FOR THE SAKE OF ARGUMENT

THAT PETITIONERS STILL OWE THE RESPONDENTS THE
"BALANCE" OF THEIR COMMISSION, THE HONORABLE COURT
ERRED IN RULING THE PETITIONERS ARE EACH JOINTLY AND
SEVERALLY [LIABLE] FOR THE PAYMENT OF THE ENTIRE
BROKERS FEES. THIS RULING HAS NO LEGAL BASIS AND IS
CONTRARY TO ART. 1207 OF THE NEW CIVIL CODE.9

preponderance of evidence since no rule of evidence requires

them to do so. In support of this allegation, petitioners
presented petitioner Lourdes Raymundo who testified that she
was given 2/5 share of the commission pursuant to the verbal
sharing scheme because she took care of the payment of the
capital gains tax, the preparation of the documents of sale and
of securing an authority from the court to sell the property.

Plainly stated, the issues for resolution are: Did the Court of
Appeals err (1) in applying the parol evidence rule; (2) in
requiring petitioners to establish their case by more than a
preponderance of evidence; and (3) in holding petitioners jointly
and severally liable for the payment of the entire brokers fees?

For their part, respondents counter that the appellate court did
not require petitioners to prove the existence of the subsequent
oral agreement by more than a mere preponderance of
evidence. What the appellate court said is that the petitioners
failed to prove and establish the alleged subsequent verbal
agreement even by mere preponderance of evidence.

Anent the first issue, petitioners contend that the Court of

Appeals erred in applying the parol evidence rule to the facts of
the case because the verbal agreement was entered into
subsequent to the written agreement. Further, they aver that
there is no rule that requires an agreement modifying an earlier
agreement to be in the same form as the earlier agreement in
order for such modification or amendment to be valid.
Conversely, respondents argue that the Court of Appeals did not
apply the parol evidence rule in this case. Although the appellate
court stated and emphasized the general legal principle and rule
on parol evidence, it did not apply the parol evidence rule with
regard to the evidence adduced by the petitioners.
We rule for the respondents. To begin with, we agree with
petitioners claim that the parol evidence rule does not apply to
the facts of this case. First, the parol evidence rule forbids any
addition to or contradiction of the terms of a written instrument
by testimony or other evidence purporting to show that, "at or
before" the execution of the parties written agreement, other or
different terms were agreed upon by the parties, varying the
purport of the written contract.10 Notably, the claimed verbal
agreement was agreed upon not prior to but "subsequent to"
the written agreement. Second, the validity of the written
agreement is not the matter which is being put in issue here.
What is questioned is the validity of the claim that a subsequent
verbal agreement was agreed upon by the parties after the
execution of the written agreement which substantially modified
their earlier written agreement.
Nonetheless, even if we apply the parol evidence rule in this
case, the evidence presented by the petitioners fell short in
proving that a subsequent verbal agreement was in fact entered
into by the parties. We subscribe to the findings of both the trial
court and the appellate court that the evidence presented by
petitioners did not establish the existence of the alleged
subsequent verbal agreement. As pointed out by the trial court:
Note that no written evidence was presented by the defendants
to show that the plaintiffs [herein respondents] agreed to the
above-sharing of the commission. The fact is that the plaintiffs
are denying having ever entered into such sharing agreement.
For if the plaintiffs as sales agents indeed agreed to share the
commission they are entitled to receive by virtue of the Exclusive
Authority to Sell with Lourdes G. Raymundo and Hipolito, it
passes understanding why no written agreement to that effect
was ever made. The absence of such written agreement is mute
but telling testimony that no such sharing arrangement was ever
made.11
As to the second issue, petitioners contend that the appellate
court erred in requiring them to prove the existence of the
subsequent verbal agreement by more than a mere

EVIDENCE

Petitioners abovecited allegation has no merit. By

preponderance of evidence is meant that the evidence as a
whole adduced by one side is superior to that of the other.12 It
refers to the weight, credit and value of the aggregate evidence
on either side and is usually considered to be synonymous with
the term "greater weight of evidence" or "greater weight of the
credible evidence". It is evidence which is more convincing to
the court as worthy of belief than that which is offered in
opposition thereto.13
Both the appellate court and trial court ruled that the evidence
presented by the petitioners is not sufficient to support their
allegation that a subsequent verbal agreement was entered into
by the parties. In fact, both courts correctly observed that if
Lourdes Raymundo was in reality offered the 2/5 share of the
agents commission for the purpose of assisting respondent
Lunaria in the documentation requirement, then why did the
petitioners not present any written court order on her authority,
tax receipt or sales document to support her self-serving
testimony? Moreover, even the worksheet allegedly reflecting
the commission sharing was unilaterally prepared by petitioner
Lourdes Raymundo without any showing that respondents
participated in the preparation thereof or gave their assent
thereto. Even the alleged payment of 1/5 of the commission to
the buyer to be used in the payment of the realty taxes cannot
be given credence since the payment of realty taxes is the
obligation of the owners, and not the buyer. Lastly, if the said
sharing agreement was entered into pursuant to the wishes of
the buyer, then he should have been presented as witness to
corroborate the claim of the petitioners. However, he was not.
As to the third issue, petitioners contend that the appellate court
erred in holding that the petitioners were each jointly and
severally liable for the payment of the brokers fees. They
contend that the Civil Code provides that unless the parties have
expressly agreed to be jointly and severally liable for the entire
brokers fees, each of the petitioners should only be held liable
to the extent of their pro-indiviso share in the property sold.
For their part, respondents argue that the appellate court did not
err in affirming the joint and several liability of the petitioners.
They aver that if there was error on the part of the trial court, it
was not raised or assigned as error by petitioners in their appeal.
It was also not included in the Statement of Issues in their brief
which they submitted for resolution by the Court of Appeals. In
fact, the same was never mentioned, much less questioned, by
petitioners in their brief.
On this score, we agree with respondents. The general rule is
that once an issue has been adjudicated in a valid final judgment
of a competent court, it can no longer be controverted anew and
should be finally laid to rest.14 In this case, petitioners failed to
address the issue on their solidary liability when they appealed

AGUSTIN, E.P. | 32

to the Court of Appeals. They are now estopped to question that

ruling. As to them, the issue on their liability is already valid and
binding.
WHEREFORE, the petition is DENIED for lack of merit. The
Decision dated October 10, 2005 and the Resolution dated
January 10, 2006 of the Court of Appeals in CA-G.R. CV No.
75593 are AFFIRMED. Costs against petitioners.
SO ORDERED.

EVIDENCE

AGUSTIN, E.P. | 33

Republic of the Philippines

SUPREME COURT
Manila

5. That all the improvement on the land leased shall

automatically become the property of the Lessor after
the expiration of the term of the lease;

FIRST DIVISION

6. That the leased parcel of land shall be devoted

exclusively for the construction supply business of the
[Lessee];2

G.R. No. 171707

July 28, 2008

SPOUSES WILFREDO and ANGELA AMONCIO, Petitioners,

vs.
AARON GO BENEDICTO, Respondent.
DECISION

xxx

xxx

xxx

10. Design specification needs final approval by the

Lessor[,] while structural improvements would have
to conform to local government specification, taxes on
structural improvement will be for the account of the
Lessee.3

CORONA, J.:
At bar is an appeal by certiorari under Rule 45 of the Rules of
Court assailing the decision of the Court of Appeals (CA) in CAG.R. CV No. 793411 which, in turn, affirmed the decision of the
Regional Trial Court (RTC), Branch 82 of Quezon City.
The facts follow.
On July 15, 1997, petitioners Wilfredo and Angela Amoncio
entered into a contract of lease with a certain Ernesto Garcia
over a 120 sq. m. portion of their 600 sq. m. property in Quezon
City.
On August 20, 1997, petitioners entered into another contract of
lease, this time with respondent Aaron Go Benedicto over a 240
sq. m. portion of the same property. The contract read:
WHEREAS, the Lessor is the absolute owner of a parcel of land
with an area of (600) [sq. m.] situated in Neopolitan, Quezon
City covered by T.C. T. No. 50473 of the Register of Deeds of
Quezon City, 240 [sq. m.] of which is being leased to the lessee;
That for and in consideration of the amount of NINETEEN
THOUSAND TWO HUNDRED PESOS (P19,200.00), Philippines
Currency, monthly rental[,] the Lessor herein lease a portion of
said parcel of land with an area of 240 sq. m. to the lessee,
subject to the following terms and conditions:
1. That the term of the lease is for [f]ive (5) years
renewable annually for a maximum of five (5) years
from the execution of this contract;
2. The Lessee shall pay in advance the monthly rental
for the land in the amount of ONE HUNDRED
FIFTEEN THOUSAND TWO HUNDRED PESOS
(P115,200.00) Philippines Currency equivalent to
three (3) months deposit and three (3) months
advance rental; commencing November, 1997;
3. The [Lessee] shall issue postdated checks for the
succeeding rentals to the Lessor;
4. That in the event of failure to complete the term of
the lease, the lessee is still liable to answer for the
rentals of the remaining period;

EVIDENCE

In December 1997, Garcia and respondent took possession of

their respective leased portions.
In July 1999, Garcia pre-terminated his contract with petitioners.
Respondent, on the other hand, stayed on until June 8, 2000.
According to petitioners, respondent stopped paying his monthly
rentals in December 1999. Shortly thereafter, petitioners claimed
they discovered respondent putting up improvements on another
120 sq. m. portion of their property which was never leased to
him nor to Garcia. They added he had also occupied Garcias
portion immediately after the latter left.4
Petitioners asked respondent to pay his arrears and desist from
continuing with his construction but he took no heed. Because of
respondents failure to meet petitioners demands, they asked
him to vacate the property. On January 27, 2000, they rescinded
the lease contract.
On June 23, 2000, petitioners filed in the RTC of Quezon City a
case5 for recovery of possession of real property against
respondent. In the complaint, petitioners asked respondent to
pay the following: (1) rent from January 27, 2000 or from the
time his lease contract was rescinded until he vacated the
property; (2) rent for Garcias portion from August 1999 until he
vacated it and (3) rent for the remaining 120 sq. m. which was
not covered by his or Garcias contract. Petitioners likewise
insisted that respondent was liable to pay his arrears from
December 1999 until the expiration of his lease contract in
August 2002. According to them, the lease contract provided:
"in the event of [respondents] failure to complete the term of
the lease, [he would] still be liable to answer for the rentals of
the remaining period."6
In his answer with counterclaim, respondent denied petitioners
accusations and alleged that it was them who owed him money.
According to him, he and petitioner Wilfredo Amoncio agreed to
construct five commercial buildings on petitioners property. One
of the buildings was to go to Garcia, two to petitioners and the
last two to him. They also agreed that he was to finance the
construction and petitioners were to pay him for the two
buildings assigned to them.
Respondent added he was to pay the rentals for five years and
surrender the buildings (on his leased portion) to petitioners
after the lapse of said period. However, in June 2000, he
vacated the premises after he and petitioners could no longer
settle things amicably.

AGUSTIN, E.P. | 34

Respondent asked to be paid: (1) P600,000 for the construction

cost of the two buildings that went to petitioners7; (2) P300,000
as adjusted cost of the portion leased to him and (3) P10,000 as
attorneys fees.
After trial, the RTC gave credence to respondents version and
dismissed petitioners case for lack of factual and legal basis. It
also granted respondents counterclaim:
WHEREFORE, premises considered. Judgment is hereby
rendered in favor of [respondent] and against [petitioners]
DISMISSING the latters complaint for lack of factual and legal
basis.
On the counterclaim, [petitioners] are hereby ordered to pay
[respondent] as follows:
a. The sum of SIX HUNDRED THOUSAND (P600,000)
PESOS representing the cost of the two
improvements constructed on the remaining portion
of the [petitioners] lot.
b. The sum of THREE HUNDRED THOUSAND PESOS
(P300,000) PESOS representing the adjusted cost of
the two improvements likewise constructed by
[respondent][,] possession of which was terminated
two and a half years before the stipulated term of five
(5) years.
c. The sum of TEN THOUSAND (P10,000) PESOS as
and by way of attorneys fees.
SO ORDERED.8
Petitioners elevated the case to the CA. There, petitioners
argued that the RTC erred in (1) denying their claim for payment
of rentals both for the unexpired period of the lease and for the
portions of the property used by respondent which was not
covered by his lease contract and (2) granting respondents
counterclaim although they did not allow the construction of the
buildings. Petitioners likewise contended the trial court
disregarded the parol evidence rule9 which disallowed the court
from looking into any other evidence relating to the agreement
of the parties outside the written contract between them.
In its assailed decision, the CA affirmed the RTCs decision and
dismissed petitioners appeal. It held that:
(1) petitioners did not adduce evidence to prove that
respondent had actually occupied portions of their
property not covered by his contract;
(2) petitioners could not insist that respondent pay
the remaining period under the contract since they
were the ones who demanded that respondent vacate
the premises and
(3) the rule on parol evidence could no longer apply
after they failed to object to respondents testimony
(in the lower court) about their agreement regarding
the construction of the buildings.10

In support of this petition, petitioners essentially argue that the

CA erred in ruling that: (1) they consented to the construction of
the buildings by respondent; (2) they waived their right to
respondents assertion of facts that were not embodied in the
lease contract and (3) respondent was not a builder in bad
faith.13
Petitioners Allowed The Construction Of The Buildings
Petitioners first argument necessitates a review of the facts of
the case which, as a general rule, is not the task of this Court.
Under Rule 45 of the Rules, this Court shall not pass upon the
findings of fact by lower courts unless they ignored salient points
that would otherwise affect the outcome of the case.14 There is
no reason for us to overturn the factual conclusions of the lower
courts.
Moreover, the lower courts findings of fact were supported by
the records of the case which indubitably showed petitioners
acquiescence to the construction of the buildings on their
property. Petitioners denial cannot negate the overwhelming
proof that it was petitioner Wilfredo Amoncio himself who
secured the building permit for the project. He also required that
all design specifications were to be approved by him.15
Application Of The
Parol Evidence Rule
Rule 130, Section 9 of the Rules of Court provides:
Section 9. Evidence of written agreements. When the terms of
the agreement have been reduced in writing, it is considered as
containing all the terms agreed upon and there can be, between
the parties and their successors, no evidence of such terms
other than the contents of the written agreement.
xxx

xxx

xxx

The so-called "parol evidence" forbids any addition to or

contradiction of the terms of a written instrument by testimony
purporting to show that, at or before the signing of the
document, other terms were orally agreed on by the parties.16
Under the aforecited rule, the terms of the written contract are
conclusive upon the parties and evidence aliunde is inadmissible
to vary an enforceable agreement embodied in the document.
However, the rule is not absolute and admits of exceptions:
xxx

xxx

xxx

However, a party may present evidence to modify, explain or

add to the terms of the written agreement if he puts in issue in
his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in
the written agreement;
(b) The failure of the written agreement to express
the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or

Petitioners filed a motion for reconsideration but it was denied.11

Hence, this petition.12

EVIDENCE

AGUSTIN, E.P. | 35

(d) The existence of other terms agreed to by the

parties or their successors in interest after the
execution of the written agreement.
The term "agreement" shall include wills.
The first exception applies when the ambiguity or uncertainty is
readily apparent from reading the contract. The wordings are so
defective that what the author of the document intended to say
cannot be deciphered.17 It also covers cases where the parties
commit a mutual mistake of fact,18 or where the document is
manifestly incomplete as the parties do not intend to exhibit the
whole agreement but only to define some of its terms.19
The second exception includes instances where the contract is
so obscure that the contractual intention of the parties cannot
be understood by mere inspection of the instrument.20 Thus,
extrinsic proof of its subject matter, of the relation of the parties
and of the circumstances surrounding them when they entered
into the contract may be received as evidence.21
Under the third exception, the parol evidence rule does not apply
where the purpose of introducing the evidence is to show the
invalidity of the contract.22 This includes cases where a party
alleges that no written contract ever existed, or the parties fail to
agree on the terms of the contract, or there is no consideration
for such agreement.23
The fourth exception involves a situation where the due
execution of the contract or document is in issue.24
The present case does not appear to fall under any of the given
exceptions. However, a party to a contract may prove the

existence of any separate oral agreement as to any matter which

is not inconsistent with its terms.25 This may be done if, from the
circumstances of the case, the court believes that the document
does not convey entirely the whole of the parties transaction.26
In this case, there are tell-tale signs that petitioners and
respondent had other agreements aside from those established
by the lease contract. And we find it difficult to ignore them. We
agree with the trial court:
[T]hat [respondent], indeed, undertook the construction
subject hereof, is not disputed by [petitioners]. [Respondent]
testified that two units thereof were intended for [petitioners],
another two units for him and one for Garcia at the cost of
P300,000.00 per unit or for a total budget of P1.5 million.
Evidence further disclosed that the [b]uilding [p]ermit issued
therefor by the Building Official bore the signature of [petitioner]
Wilfredo Amoncio
the Court cannot be unmindful of [petitioner Wilfredo
Amoncios denial by any knowledge of the whole construction
undertaken by herein [respondent.] But it is evident that
[petitioners] have chosen to adopt inconsistent positions which,
by applicable jurisprudence, [are] barred. Said the Court in this
regard:
The doctrine of estoppel prohibits a party from assuming
inconsistent position based on the principle of election, and
precludes him from repudiating an obligation voluntarily
assumed after having accepted benefits therefrom. To

EVIDENCE

countenance such repudiation would be contrary to equity and

would put a premium on fraud and misrepresentation27
Moreover, petitioners also failed to make a timely objection
against respondents assertion of their prior agreement on the
construction of the buildings. Where a party entitled to the
benefit of the parol evidence rule allows such evidence to be
received without objection, he cannot, after the trial has closed
and the case has been decided against him, invoke the rule in
order to secure a reversal of the judgment.28 Hence, by failing to
object to respondents testimony in the trial court, petitioners
waived the protection of the parol evidence rule.29
Payment Of Rental
Petitioners demand the payment of the following: (1) rent from
December 19, 1999 to June 8, 2000;30 (2) rent for the unexpired
period of the lease or until August 200231 and (3) rent
corresponding to the portions of the property used by
respondent which, according to petitioners, were not covered by
his lease contract.32
Pursuant to the lease agreement, respondent paid three months
advance and three months deposit (at the inception of the lease
contract), in effect already settling his rentals for six months
from December 1999 to June 8, 2000. The CA correctly ruled:
While [respondent] stopped paying rentals in December 1999
and left before June 8, 2000, a period covering six (6) months,
[respondent], nonetheless, had already paid [petitioners] the
amount equivalent to six (6) months rentals [advance payment
equivalent to three (3) monthly rentals plus deposit equivalent to
[another] three (3) monthly rentals]33 (emphasis supplied)
Regarding petitioners second claim (rent for the unexpired
period of lease), we agree with the lower courts that they
(petitioners) are not entitled to it.
Without doubt, petitioners already benefited immensely from the
construction of the five buildings on their property. The amount
of their claim is a pittance compared to the increase in value of
their property over the years. It would unjustly enrich them if we
were to rule in their favor considering that they did not spend a
single centavo for the construction of the buildings. It was
respondent who financed the entire project which, however, was
taken over completely by petitioners.
As a rule, the contract is the law between the parties that must
be enforced in sensu strictione. However, it cannot be done
under the circumstances of this case. To do so would result in a
patently unjust juridical situation. We, as a court not only of
justice but of equity as well, may exercise our equitas jurisdictio
to refine the rough edges of the rule and avoid injustice.34
Lastly, petitioners claim for rental payment for the portions (not
covered by respondents lease contract) must be dismissed. This
claim was never substantiated.
Petitioners Liability To Respondent
What remains to be resolved is petitioners liability to
respondent, as held by both the RTC and the CA. Were
petitioners indeed liable to respondent for the cost of the
buildings constructed on their property? Yes.

AGUSTIN, E.P. | 36

Since the trial court allowed respondents testimony as evidence

of the parties prior agreement (regarding the construction of the
buildings and the cost thereof), petitioners should pay
respondent. Petitioners never disputed the construction of the
two buildings given to them. If one of the contracting parties
derived some benefit but did not give anything for it to the
other, it is only fair that he should return the amount by which
he was unjustly enriched.35 Equity dictates that petitioners be
held liable for the expenses incurred by respondent in
constructing the buildings that went to them. No man ought to
be enriched by anothers injury.36 Nemo ex alterius incommonde

debet lecupletari.

Finally, following our ruling that petitioners knew of the

construction of the buildings, any discussion on the issue of
whether respondent was a builder in bad faith is no longer
necessary.
WHEREFORE, the assailed decision of the Court of Appeals in
CA-G.R. CV No. 79341 is hereby AFFIRMED.
Treble costs against petitioners.
SO ORDERED.
RENATO C. CORONA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 37

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 145736

March 4, 2009

ESTATE OF ORLANDO LLENADO and WENIFREDA T.

LLENADO, in her capacity as (a) Administratrix of the
Estate of Orlando A. Llenado and (b) Judicial Guardian of
the Minor children of Orlando A. Llenado, and (c) in her
Own behalf as the Surviving Spouse and Legal Heir of
Orlando A. Llenado, Petitioners,
vs.
EDUARDO LLENADO, JORGE LLENADO, FELIZA
GALLARDO VDA. DE LLENADO and REGISTER OF DEEDS
of Valenzuela City, Metro Manila, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the May 30, 2000
Decision1 of the Court of Appeals in CA-G.R. CV No. 58911 which
reversed the May 5, 1997 Decision2 of the Regional Trial Court of
Valenzuela City, Branch 75 in Civil Case No. 4248-V-93, and the
October 6, 2000 Resolution3 which denied the motion for
reconsideration. The appellate court dismissed for lack of merit
the complaint for annulment of deed of conveyance, title and
damages filed by petitioner against herein respondents.
The subject of this controversy is a parcel of land denominated
as Lot 249-D-1 (subject lot) consisting of 1,554 square meters
located in Barrio Malinta, Valenzuela, Metro Manila and
registered in the names of Eduardo Llenado (Eduardo) and Jorge
Llenado (Jorge) under Transfer of Certificate of Title (TCT) No.
V-1689.4 The subject lot once formed part of Lot 249-D owned
by and registered in the name of their father, Cornelio Llenado
(Cornelio), under TCT No. T-16810.
On December 2, 1975, Cornelio leased Lot 249-D-1 to his
nephew, Romeo Llenado (Romeo), for a period of five years,
renewable for another five years at the option of Cornelio. On
March 31, 1978, Cornelio, Romeo and the latters cousin Orlando
Llenado (Orlando) executed an Agreement5 whereby Romeo
assigned all his rights to Orlando over the unexpired portion of
the aforesaid lease contract. The parties further agreed that
Orlando shall have the option to renew the lease contract for
another three years commencing from December 3, 1980, up to
December 2, 1983, renewable for another four years or up to
December 2, 1987, and that "during the period that [this
agreement] is enforced, the x x x property cannot be sold,
transferred, alienated or conveyed in whatever manner to any
third party."
Shortly thereafter or on June 24, 1978, Cornelio and Orlando
entered into a Supplementary Agreement6 amending the March
31, 1978 Agreement. Under the Supplementary Agreement,
Orlando was given an additional option to renew the lease
contract for an aggregate period of 10 years at five-year
intervals, that is, from December 3, 1987 to December 2, 1992
and from December 3, 1992 to December 2, 1997. The said
provision was inserted in order to comply with the requirements
of Mobil Philippines, Inc. for the operation of a gasoline station
which was subsequently built on the subject lot.

EVIDENCE

Upon the death of Orlando on November 7, 1983, his wife,

Wenifreda Llenado (Wenifreda), took over the operation of the
gasoline station. Meanwhile, on January 29, 1987, Cornelio sold
Lot 249-D to his children, namely, Eduardo, Jorge, Virginia and
Cornelio, Jr., through a deed of sale, denominated as "Kasulatan
sa Ganap Na Bilihan,"7 for the sum of P160,000.00. As stated
earlier, the subject lot, which forms part of Lot 249-D, was sold
to Eduardo and Jorge, and titled in their names under TCT No.
V-1689. Several months thereafter or on September 7, 1987,
Cornelio passed away.
Sometime in 1993, Eduardo informed Wenifreda of his desire to
take over the subject lot. However, the latter refused to vacate
the premises despite repeated demands. Thus, on September
24, 1993, Eduardo filed a complaint for unlawful detainer before
the Metropolitan Trial Court of Valenzuela, Metro Manila against
Wenifreda, which was docketed as Civil Civil Case No. 6074.
On July 22, 1996, the Metropolitan Trial Court rendered its
Decision in favor of Eduardo and ordered Wenifreda to: (1)
vacate the leased premises; (2) pay Eduardo reasonable
compensation for the use and occupation of the premises plus
attorneys fees, and (3) pay the costs of the suit.
Wenifreda appealed to the Regional Trial Court of Valenzuela,
Metro Manila, which reversed the decision of the court a quo.
Thus, Eduardo appealed to the Court of Appeals which rendered
a Decision8 on March 31, 1998 reversing the decision of the
Regional Trial Court and reinstating the decision of the
Metropolitan Trial Court. It also increased the amount of
reasonable compensation awarded to Eduardo for the use of the
leased premises. Wenifredas appeal to this Court, docketed as
G.R. No. 135001, was dismissed in a Resolution9 dated
December 2, 1998. Accordingly, an Entry of Judgment10 was
made in due course on July 8, 1999.
Previously, after Eduardo instituted the aforesaid unlawful
detainer case on September 24, 1993, herein petitioner
Wenifreda, in her capacity as administratrix of the estate of
Orlando Llenado, judicial guardian of their minor children, and
surviving spouse and legal heir of Orlando, commenced the
subject Complaint,11 later amended, on November 10, 1993 for
annulment of deed of conveyance, title and damages against
herein respondents Eduardo, Jorge, Feliza Llenado (mother of
the Llenado brothers), and the Register of Deeds of Valenzuela,
Metro Manila. The case was docketed as Civil Case No. 4248-V93 and raffled to Branch 75 of the Regional Trial Court of
Valenzuela, Metro Manila.
Petitioner alleged that the transfer and conveyance of the
subject lot by Cornelio in favor of respondents Eduardo and
Jorge, was fraudulent and in bad faith considering that the
March 31, 1978 Agreement provided that while the lease is in
force, the subject lot cannot be sold, transferred or conveyed to
any third party; that the period of the lease was until December
3, 1987 with the option to renew granted to Orlando; that the
subject lot was transferred and conveyed to respondents
Eduardo and Jorge on January 29, 1987 when the lease was in
full force and effect making the sale null and void; that Cornelio
verbally promised Orlando that in case he (Cornelio) decides to
sell the subject lot, Orlando or his heirs shall have first priority or
option to buy the subject lot so as not to prejudice Orlandos
business and because Orlando is the owner of the property
adjacent to the subject lot; and that this promise was wantonly
disregarded when Cornelio sold the said lot to respondents Jorge
and Eduardo.

AGUSTIN, E.P. | 38

In their Answer,12 respondents Eduardo and Jorge claimed that

they bought the subject lot from their father, Cornelio, for value
and in good faith; that the lease agreement and its supplement
were not annotated at the back of the mother title of the subject
lot and do not bind them; that said agreements are personal
only to Cornelio and Orlando; that the lease expired upon the
death of Orlando on November 7, 1983; that they were not
aware of any verbal promise to sell the subject lot granted by
Cornelio to Orlando and, even if there was, said option to buy is
unenforceable under the statute of frauds.
After the parties presented their respective evidence, the
Regional Trial Court rendered judgment on May 5, 1997 in favor
of petitioner, viz:
WHEREFORE, PREMISES CONSIDERED, this Court finds the
[petitioners] civil action duly established by preponderance of
evidence, renders judgment (adjudicates) in favor of the
[petitioner], Estate of Orlando Llenado represented by Wenifreda
Llenado, and against [respondents] e.g. Jorge, Eduardo, Felisa
Gallardo, all surnamed Llenado, and the Register of Deeds of
Valenzuela, Metro Manila, as follows:
1) It hereby judicially declare as non-existence (sic)
and null and void, the following:
a) The Kasulatan Sa Ganap na Kasunduan
or Deed of Sale;
b) TCT- Transfer Certificate of Title No. V9440, in the name of [respondent]
Eduardo Llenado, TCT- Transfer Certificate
of Title No. V-1689, in the name of Jorge
Llenado, and Eduardo Llenado, and all
deeds, documents or proceedings leading
to the issuance of said title, and all
subsequent title issued therefrom and
likewise whatever deeds, documents or
proceedings leading to the issuance of said
subsequent titles;
2) It hereby orders the reconveyance of the said
properties embraced in the said TCTs-Transfer
Certificate of Title Nos. V-9440 and V-1689 to the
[petitioner] for the same consideration, or purchase
price, paid by [respondents] Eduardo Llenado and
Jorge Llenado for the same properties;
3) It hereby orders [respondent], Register of Deeds
of Valenzuela, Metro Manila, to cause the issuance of
new transfer certificates of title over the said property
in the name of the [petitioner];
4) And, because this Court is not only a court of law,
but of equity, it hereby rendered the following
damages to be paid by the [respondents], as the
[respondents] litigated under bonafide assertions that
they have meritorious defense, viz:
a) P400,000.00 as moral damages;

d) 10,000.00 as exemplary damages;

e) 10,000.00 attorneys fees on the basis
of quantum merit; and
f) costs of suit.
SO ORDERED.13
The Regional Trial Court found that upon the death of Orlando
on November 7, 1983, his rights under the lease contract were
transmitted to his heirs; that since the lease was in full force and
effect at the time the subject lot was sold by Cornelio to his
sons, the sale violated the prohibitory clause in the said lease
contract. Further, Cornelios promise to sell the subject lot to
Orlando may be established by parole evidence since an option
to buy is not covered by the statute of frauds. Hence, the same
is binding on Cornelio and his heirs.
Respondents appealed before the Court of Appeals which
rendered the assailed May 30, 2000 Decision reversing the
judgment of the Regional Trial Court and dismissing the
Complaint. The appellate court held that the death of Orlando
did not extinguish the lease agreement and had the effect of
transmitting his lease rights to his heirs. However, the breach of
the non-alienation clause of the said agreement did not nullify
the sale between Cornelio and his sons because the heirs of
Orlando are mere lessees on the subject lot and can never claim
a superior right of ownership over said lot as against the
registered owners thereof. It further ruled that petitioner failed
to establish by a preponderance of evidence that Cornelio made
a verbal promise to Orlando granting the latter the right of first
refusal if and when the subject lot was sold.
Upon the denial of its motion for reconsideration, petitioner is
now before this Court on the following assignment of errors:
[T]he Court of Appeals erred:
1.- In finding and concluding that there is no legal
basis to annul the deed of conveyance involved in the
case and in not applying R.A. No. 3516, further
amending R.A. No. 1162; and
2.- In not finding and holding as null and void the
subject deed of conveyance, the same having been
executed in direct violation of an expressed covenant
in said deed and in total disregard of the pre-emptive,
or preferential rights of the herein petitioners to buy
the property subject of their lease contract under said
R.A. No. 3516, further amending R.A. No. 1162.14
The petition lacks merit.
Petitioner contends that the heirs of Orlando are entitled to the
rights of a tenant under Republic Act (R.A.) No. 1162,15 as
amended by R.A. No. 3516.16 The right of first refusal or
preferential right to buy the leased premises is invoked pursuant
to Section 517 of said law and this Courts ruling in Mataas Na
Lupa Tenants Association, Inc. v. Dimayuga.18

b) 10,000.00 as nominal damages;

c) 10,000.00 as temperate damages;

EVIDENCE

This issue is being raised for the first time on appeal. True, in
Mataas Na Lupa Tenants Association, Inc., the Court explained
that Section 1 of R.A. No. 1162, as amended by R.A. No. 3516,
authorizes the expropriation of any piece of land in the City of

AGUSTIN, E.P. | 39

Manila, Quezon City and suburbs which have been and are
actually being leased to tenants for at least 10 years, provided
said lands have at least 40 families of tenants thereon.19 Prior to
and pending the expropriation, the tenant shall have a right of
first refusal or preferential right to buy the leased premises
should the landowner sell the same. However, compliance with
the conditions for the application of the aforesaid law as well as
the qualifications of the heirs of Orlando to be beneficiaries
thereunder were never raised before the trial court, or even the
Court of Appeals, because petitioner solely anchored its claim of
ownership over the subject lot on the alleged violation of the
prohibitory clause in the lease contract between Cornelio and
Orlando, and the alleged non-performance of the right of first
refusal given by Cornelio to Orlando. The rule is settled, impelled
by basic requirements of due process, that points of law,
theories, issues and arguments not adequately brought to the
attention of the lower court will not be ordinarily considered by a
reviewing court as they cannot be raised for the first time on
appeal.20 As the issue of the applicability of R.A. No. 1162, as
amended, was neither averred in the pleadings nor raised during
the trial below, the same cannot be raised for the first time on
appeal.
At any rate, the allegations in the Complaint and the evidence
presented during the trial below do not establish that Orlando or
his heirs are covered by R.A. No. 1162, as amended. It was not
alleged nor shown that the subject lot is part of the landed
estate or haciendas in the City of Manila which were authorized
to be expropriated under said law; that the Solicitor General has
instituted the requisite expropriation proceedings pursuant to
Section 221 thereof; that the subject lot has been actually leased
for a period of at least ten (10) years; and that the subject lot
has at least forty (40) families of tenants thereon. Instead, what
was merely established during the trial is that the subject lot was
leased by Cornelio to Orlando for the operation of a gasoline
station, thus, negating petitioners claim that the subject lot is
covered by the aforesaid law. In Mataas Na Lupa Tenants
Association, Inc., the Court further explained that R.A. No. 1162,
as amended, has been superseded by Presidential Decree (P.D.)
No. 151722 entitled "Proclaiming Urban Land Reform in the
Philippines and Providing for the Implementing Machinery
Thereof."23 However, as held in Tagbilaran Integrated Settlers
Association Incorporated v. Court of Appeals,24 P.D. No. 1517 is
applicable only in specific areas declared, through presidential
proclamation,25 to be located within the so-called urban zones.26
Further, only legitimate tenants who have resided on the land
for ten years or more who have built their homes on the land
and residents who have legally occupied the lands by contract,
continuously for the last ten years, are given the right of first
refusal to purchase the land within a reasonable time.27
Consequently, those lease contracts entered into for commercial
use are not covered by said law.28 Thus, considering that
petitioner failed to prove that a proclamation has been issued by
the President declaring the subject lot as within the urban land
reform zone and considering further that the subject lot was
leased for the commercial purpose of operating a gasoline
station, P.D. No. 1517 cannot be applied to this case.
In fine, the only issue for our determination is whether the sale
of the subject lot by Cornelio to his sons, respondents Eduardo
and Jorge, is invalid for (1) violating the prohibitory clause in the
lease agreement between Cornelio, as lessor-owner, and
Orlando, as lessee; and (2) contravening the right of first refusal
of Orlando over the subject lot.
It is not disputed that the lease agreement contained an option
to renew and a prohibition on the sale of the subject lot in favor
of third persons while the lease is in force. Petitioner claims that
when Cornelio sold the subject lot to respondents Eduardo and

EVIDENCE

Jorge the lease was in full force and effect, thus, the sale
violated the prohibitory clause rendering it invalid. In resolving
this issue, it is necessary to determine whether the lease
agreement was in force at the time of the subject sale and, if it
was in force, whether the violation of the prohibitory clause
invalidated the sale.
Under Article 1311 of the Civil Code, the heirs are bound by the
contracts entered into by their predecessors-in-interest except
when the rights and obligations therein are not transmissible by
their nature, by stipulation or by provision of law. A contract of
lease is, therefore, generally transmissible to the heirs of the
lessor or lessee. It involves a property right and, as such, the
death of a party does not excuse non-performance of the
contract.29 The rights and obligations pass to the heirs of the
deceased and the heir of the deceased lessor is bound to respect
the period of the lease.30 The same principle applies to the
option to renew the lease. As a general rule, covenants to renew
a lease are not personal but will run with the land.31
Consequently, the successors-in-interest of the lessee are
entitled to the benefits, while that of the lessor are burdened
with the duties and obligations, which said covenants conferred
and imposed on the original parties.
The foregoing principles apply with greater force in this case
because the parties expressly stipulated in the March 31, 1978
Agreement that Romeo, as lessee, shall transfer all his rights and
interests under the lease contract with option to renew "in favor
of the party of the Third Part (Orlando), the latters heirs,
successors and assigns"32 indicating the clear intent to allow the
transmissibility of all the rights and interests of Orlando under
the lease contract unto his heirs, successors or assigns.
Accordingly, the rights and obligations under the lease contract
with option to renew were transmitted from Orlando to his heirs
upon his death on November 7, 1983.
It does not follow, however, that the lease subsisted at the time
of the sale of the subject lot on January 29, 1987. When Orlando
died on November 7, 1983, the lease contract was set to expire
26 days later or on December 3, 1983, unless renewed by
Orlandos heirs for another four years. While the option to renew
is an enforceable right, it must necessarily be first exercised to
be given effect.33 As the Court explained in Dioquino v.
Intermediate Appellate Court:34
A clause found in an agreement relative to the renewal of the
lease agreement at the option of the lessee gives the latter an
enforceable right to renew the contract in which the clause is
found for such time as provided for. The agreement is
understood as being in favor of the lessee, and the latter is
authorized to renew the contract and to continue to occupy the
leased property after notifying the lessor to that effect. A lessors
covenant or agreement to renew gives a privilege to the tenant,
but is nevertheless an executory contract, and until the tenant
has exercised the privilege by way of some affirmative act, he
cannot be held for the additional term. In the absence of a
stipulation in the lease requiring notice of the exercise of an
option or an election to renew to be given within a certain time
before the expiration of the lease, which of course, the lessee
must comply with, the general rule is that a lessee must exercise
an option or election to renew his lease and notify the lessor

thereof before, or at least at the time of the expiration of his

original term, unless there is a waiver or special circumstances
warranting equitable relief.1avvphi1.zw+

There is no dispute that in the instant case, the lessees (private

respondents) were granted the option to renew the lease for
another five (5) years after the termination of the original period

AGUSTIN, E.P. | 40

of fifteen years. Yet, there was never any positive act on the
part of private respondents before or after the termination of the
original period to show their exercise of such option. The silence
of the lessees after the termination of the original period cannot
be taken to mean that they opted to renew the contract by
virtue of the promise by the lessor, as stated in the original
contract of lease, to allow them to renew. Neither can the
exercise of the option to renew be inferred from their
persistence to remain in the premises despite petitioners
demand for them to vacate. x x x.35
Similarly, the election of the option to renew the lease in this
case cannot be inferred from petitioner Wenifredas continued
possession of the subject lot and operation of the gasoline
station even after the death of Orlando on November 7, 1983
and the expiration of the lease contract on December 3, 1983. In
the unlawful detainer case against petitioner Wenifreda and in
the subject complaint for annulment of conveyance, respondents
consistently maintained that after the death of Orlando, the
lease was terminated and that they permitted petitioner
Wenifreda and her children to remain in possession of the
subject property out of tolerance and respect for the close blood
relationship between Cornelio and Orlando. It was incumbent,
therefore, upon petitioner as the plaintiff with the burden of
proof during the trial below to establish by some positive act
that Orlando or his heirs exercised the option to renew the lease.
After going over the records of this case, we find no evidence,
testimonial or documentary, of such nature was presented
before the trial court to prove that Orlando or his heirs exercised
the option to renew prior to or at the time of the expiration of
the lease on December 3, 1983. In particular, the testimony of
petitioner Wenifreda is wanting in detail as to the events
surrounding the implementation of the subject lease agreement
after the death of Orlando and any overt acts to establish the
renewal of said lease.
Given the foregoing, it becomes unnecessary to resolve the issue
on whether the violation of the prohibitory clause invalidated the
sale and conferred ownership over the subject lot to Orlandos
heirs, who are mere lessees, considering that at the time of said
sale on January 29, 1987 the lease agreement had long been
terminated for failure of Orlando or his heirs to validly renew the
same. As a result, there was no obstacle to the sale of the
subject lot by Cornelio to respondents Eduardo and Jorge as the
prohibitory clause under the lease contract was no longer in
force.
Petitioner also anchors its claim over the subject lot on the
alleged verbal promise of Cornelio to Orlando that should he
(Cornelio) sell the same, Orlando would be given the first
opportunity to purchase said property. According to petitioner,
this amounted to a right of first refusal in favor of Orlando which
may be proved by parole evidence because it is not one of the
contracts covered by the statute of frauds. Considering that
Cornelio sold the subject lot to respondents Eduardo and Jorge
without first offering the same to Orlandos heirs, petitioner
argues that the sale is in violation of the latters right of first
refusal and is, thus, rescissible.

simply is that these agreements are not among those

enumerated in Article 1403 of the New Civil Code.
A right of first refusal is not among those listed as unenforceable
under the statute of frauds. Furthermore, the application of
Article 1403, par. 2(e) of the New Civil Code presupposes the
existence of a perfected, albeit unwritten, contract of sale. A
right of first refusal, such as the one involved in the instant case,
is not by any means a perfected contract of sale of real property.
At best, it is a contractual grant, not of the sale of the real
property involved, but of the right of first refusal over the
property sought to be sold.
It is thus evident that the statute of frauds does not contemplate
cases involving a right of first refusal. As such, a right of first
refusal need not be written to be enforceable and may be
proven by oral evidence.37
In the instant case, the Regional Trial Court ruled that the right
of first refusal was proved by oral evidence while the Court of
Appeals disagreed by ruling that petitioner merely relied on the
allegations in its Complaint to establish said right. We have
reviewed the records and find that no testimonial evidence was
presented to prove the existence of said right. The testimony of
petitioner Wenifreda made no mention of the alleged verbal
promise given by Cornelio to Orlando. The two remaining
witnesses for the plaintiff, Michael Goco and Renato Malindog,
were representatives from the Register of Deeds of Caloocan
City who naturally were not privy to this alleged promise. Neither
was it established that respondents Eduardo and Jorge were
aware of said promise prior to or at the time of the sale of the
subject lot. On the contrary, in their answer to the Complaint,
respondents denied the existence of said promise for lack of
knowledge thereof.38 Within these parameters, petitioners
allegations in its Complaint cannot substitute for competent
proof on such a crucial factual issue. Necessarily, petitioners
claims based on this alleged right of first refusal cannot be
sustained for its existence has not been duly established.
WHEREFORE, the petition is DENIED. The May 30, 2000 Decision
of the Court of Appeals in CA-G.R. CV No. 58911 dismissing the
complaint for annulment of deed of conveyance, title and
damages, and the October 6, 2000 Resolution denying the
motion for reconsideration, are AFFIRMED.
Costs against petitioner.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

The question as to whether a right of first refusal may be proved

by parole evidence has been answered in the affirmative by this
Court in Rosencor Development Corporation v. Inquing:36
We have previously held that not all agreements "affecting land"
must be put into writing to attain enforceability. Thus, we have
held that the setting up of boundaries, the oral partition of real
property, and an agreement creating a right of way are not
covered by the provisions of the statute of frauds. The reason

EVIDENCE

AGUSTIN, E.P. | 41

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168387

August 25, 2010

SALUN-AT MARQUEZ and NESTOR DELA CRUZ, Petitioners,

vs.
ELOISA ESPEJO, ELENITA ESPEJO, EMERITA ESPEJO,
OPHIRRO ESPEJO, OTHNIEL ESPEJO, ORLANDO ESPEJO,
OSMUNDO ESPEJO, ODELEJO ESPEJO and NEMI
FERNANDEZ, Respondents.
DECISION
DEL CASTILLO, J.
When the parties admit the contents of written documents but
put in issue whether these documents adequately and correctly
express the true intention of the parties, the deciding body is
authorized to look beyond these instruments and into the
contemporaneous and subsequent actions of the parties in order
to determine such intent.
Well-settled is the rule that in case of doubt, it is the intention of
the contracting parties that prevails, for the intention is the soul
of a contract, not its wording which is prone to mistakes,
inadequacies, or ambiguities. To hold otherwise would give life,
validity, and precedence to mere typographical errors and defeat
the very purpose of agreements.
This Petition for Review on Certiorari1 assails the October 7,
2003 Decision,2 as well as the May 11, 2005 Resolution3 of the
Court of Appeals (CA) in CA G.R. SP No. 69981. The dispositive
portion of the appellate courts Decision reads:
WHEREFORE, finding reversible error committed by the
Department of Agrarian Reform Adjudication Board, the instant
petition for review is GRANTED. The assailed Decision, dated 17
January 2001, rendered by the Department of Agrarian Reform
Adjudication Board is hereby ANNULLED and SET ASIDE. The
Decision of the Department of Agrarian Reform Adjudication
Board of Bayombong[,] Nueva Vizcaya, dated 17 March 1998, is
REINSTATED. Costs against respondents.
SO ORDERED.4

3. Directing RBBI to sell through VOS the Lantap

property to its rightful beneficiary, herein tenantfarmer Nemi Fernandez under reasonable terms and
conditions;
4. Ordering RBBI to return the amount paid to it by
Nestor and Salun-at; and ordering the latter to pay 20
cavans of palay per hectare at 46 kilos per cavan unto
[respondents] plus such accrued and unpaid rentals
for the past years as may be duly accounted for with
the assistance of the Municipal Agrarian Reform
Officer of Bagabag, Nueva Vizcaya who is also hereby
instructed to assist the parties execute their leasehold
contracts and;
5. The order to supervise harvest dated March 11,
1998 shall be observed until otherwise modified or
dissolved by the appellate body.
SO ORDERED.5

Factual Antecedents
Respondents Espejos were the original registered owners of two
parcels of agricultural land, with an area of two hectares each.
One is located at Barangay Lantap, Bagabag, Nueva Vizcaya (the
Lantap property) while the other is located in Barangay Murong,
Bagabag, Nueva Vizcaya (the Murong property). There is no
dispute among the parties that the Lantap property is tenanted
by respondent Nemi Fernandez (Nemi)6 (who is the husband7 of
respondent Elenita Espejo (Elenita), while the Murong property
is tenanted by petitioners Salun-at Marquez (Marquez) and
Nestor Dela Cruz (Dela Cruz).8
The respondents mortgaged both parcels of land to Rural Bank
of Bayombong, Inc. (RBBI) to secure certain loans. Upon their
failure to pay the loans, the mortgaged properties were
foreclosed and sold to RBBI. RBBI eventually consolidated title to
the properties and transfer certificates of title (TCTs) were
issued in the name of RBBI. TCT No. T-62096 dated January 14,
1985 was issued for the Murong property. It contained the
following description:
Beginning at a point marked I on plan H-176292, S. 44034 W.
1656.31 m. more or less from B.L.L.M. No 1, Bagabag Townsite,
K-27,
thence N. 28 deg. 20 E., 200.00 m. to point 2;
thence S. 61 deg. 40 E., 100.00 m. to point 3;

The reinstated Decision of the Department of Agrarian Reform

Adjudication Board (DARAB) of Bayombong, Nueva Vizcaya, in
turn, contained the following dispositive portion:
Accordingly, judgment is rendered:
1. Finding [respondents] to be the owner by repurchase from RBBI [of] the Murong property covered
by TCT No. [T-]62096 (formerly TCT No. 43258);
2. Ordering the cancellation of TCT with CLOA Nos.
395 and 396 in the name[s] of Salun-at Marquez and
Nestor de la Cruz respectively, as they are disqualified
to become tenants of the Lantap property;

EVIDENCE

thence S. 28 deg. 20 W., 200.00 m. to point 4;

thence N. 61 deg. 40 W., 100.00 m. to point 1; point
of beginning;
Containing an area of 2.000 hectares. Bounded on the northeast,
by Road; on the southeast, and southwest by public land; and
on the northwest by Public Land, properties claimed by Hilario
Gaudia and Santos Navarrete. Bearings true. Declination 0131 E.
Points referred to are marked on plan H-176292. Surveyed
under authority of sections 12-22 Act No. 2874 and in
accordance with existing regulations of the Bureau of Lands by
H.O. Bauman Public Land Surveyor, [in] December 1912-March

AGUSTIN, E.P. | 42

1913. Note: All corners are Conc. Mons. 15x15x60 cm. This is
Lot No. 79-A=Lot No. 159 of Bagabag Townsite, K-27.9
Subsequently, TCT No. T-62836 dated June 4, 1985 was issued
for the Lantap property and contained the following description:
Beginning at a point marked "1" on plan H-105520, N. 80 deg.
32 W., 1150.21 m. from BLLM No. 122, Irrigation project,
thence N. 61 deg. 40E., 200.00 m. to point 2;
thence N. 28 deg. 20E, 100.00 m. to point 3;
thence S. 61 deg. 40E, 200.00 m. to point 4;
thence S. 28 deg. 20W, 100.00 m. to point 1; point
of beginning; containing an area of 2.0000 hectares.
Bounded on the northeast, southeast, and southwest
by Public land; and on the northwest by Road and
public land. Bearings true. Declination 0 deg. 31E.,
points referred to are marked on plan H-105520.
Surveyed under authority of Section 12-22, Act No.
2874 and in accordance with existing regulations of
the Bureau of Lands, by H.O. Bauman Public Land
Surveyor, [in] Dec. 1912-Mar. 1913 and approved on
January 6, 1932. Note: This is Lot No. 119-A Lot No.
225 of Bagabag Townsite K-27. All corners are B.I.
Conc. Mons. 15x60 cm.10
Both TCTs describe their respective subjects as located in
"Bagabag Townsite, K-27," without any reference to either
Barangay Lantap or Barangay Murong.
On February 26, 1985, respondents Espejos bought back one of
their lots from RBBI. The Deed of Sale11 described the property
sold as follows:
x x x do hereby SELL, TRANSFER, and CONVEY, absolutely and
unconditionally x x x that certain parcel of land, situated in the
Municipality of Bagabag, Province of Nueva Vizcaya, and more
particularly bounded and described as follows, to wit:
Beginning at a point marked "1" on plan x x x x Containing an
area of 2.000 hectares. Bounded on the NE., by Road; on the
SE., and SW by Public Land; and on the NW., by Public Land,
properties claimed by Hilario Gaudia and Santos Navarrete.
Bearing true. Declination 013 B. Points referred to are marked
on plan H-176292.
of which the Rural Bank of Bayombong (NV) Inc., is the
registered owner in fee simple in accordance with the Land
Registration Act, its title thereto being evidenced by Transfer
Certificate of Title No. T-62096 issued by the Registry of Deeds
of Nueva Vizcaya.
As may be seen from the foregoing, the Deed of Sale did not
mention the barangay where the property was located but
mentioned the title of the property (TCT No. T-62096), which
title corresponds to the Murong property. There is no evidence,
however, that respondents took possession of the Murong
property, or demanded lease rentals from the petitioners (who
continued to be the tenants of the Murong property), or
otherwise exercised acts of ownership over the Murong property.
On the other hand, respondent Nemi (husband of respondent
Elenita and brother-in-law of the other respondents), continued

EVIDENCE

working on the other property -- the Lantap property -- without

any evidence that he ever paid rentals to RBBI or to any
landowner. The Deed of Sale was annotated on TCT No. T62096 almost a decade later, on July 1, 1994.12
Meanwhile, on June 20, 1990, RBBI, pursuant to Sections 2013
and 2114 of Republic Act (RA) No. 6657,15 executed separate
Deeds of Voluntary Land Transfer (VLTs) in favor of petitioners
Marquez and Dela Cruz, the tenants of the Murong property.
Both VLTs described the subject thereof as an agricultural land
located in Barangay Murong and covered by TCT No. T-62836
(which, however, is the title corresponding to the Lantap
property).16
After the petitioners completed the payment of the purchase
price of P90,000.00 to RBBI, the DAR issued the corresponding
Certificates of Land Ownership Award (CLOAs) to petitioners
Marquez17 and Dela Cruz18 on September 5, 1991. Both CLOAs
stated that their subjects were parcels of agricultural land
situated in Barangay Murong.19 The CLOAs were registered in
the Registry of Deeds of Nueva Vizcaya on September 5, 1991.
On February 10, 1997 (more than 10 years after the Deed of
Sale in favor of the respondents and almost seven years after
the execution of VLTs in favor of the petitioners), respondents
filed a Complaint20 before the Regional Agrarian Reform
Adjudicator (RARAD) of Bayombong, Nueva Vizcaya for the
cancellation of petitioners CLOAs, the deposit of leasehold
rentals by petitioners in favor of respondents, and the execution
of a deed of voluntary land transfer by RBBI in favor of
respondent Nemi. The complaint was based on respondents
theory that the Murong property, occupied by the petitioners,
was owned by the respondents by virtue of the 1985 buy-back,
as documented in the Deed of Sale. They based their claim on
the fact that their Deed of Sale refers to TCT No. 62096, which
pertains to the Murong property.
Petitioners filed their Answer21 and insisted that they bought the
Murong property as farmer-beneficiaries thereof. They
maintained that they have always displayed good faith, paid
lease rentals to RBBI when it became the owner of the Murong
property, bought the same from RBBI upon the honest belief
that they were buying the Murong property, and occupied and
exercised acts of ownership over the Murong property.
Petitioners also argued that what respondents Espejos
repurchased from RBBI in 1985 was actually the Lantap
property, as evidenced by their continued occupation and
possession of the Lantap property through respondent Nemi.
RBBI answered22 that it was the Lantap property which was the
subject of the buy-back transaction with respondents Espejos. It
denied committing a grave mistake in the transaction and
maintained its good faith in the disposition of its acquired assets
in conformity with the rural banking rules and regulations.
OIC-RARAD Decision23
The OIC-RARAD gave precedence to the TCT numbers appearing
on the Deed of Sale and the VLTs. Since TCT No. T-62096
appeared on respondents Deed of Sale and the said title refers
to the Murong property, the OIC-RARAD concluded that the
subject of sale was indeed the Murong property. On the other
hand, since the petitioners VLTs referred to TCT No. T-62836,
which corresponds to the Lantap property, the OIC-RARAD ruled
that petitioners CLOAs necessarily refer to the Lantap property.
As for the particular description contained in the VLTs that the

AGUSTIN, E.P. | 43

subject thereof is the Murong property, the OIC-RARAD ruled

that it was a mere typographical error.
Further, since the VLTs covered the Lantap property and
petitioners are not the actual tillers thereof, the OIC-RARAD
declared that they were disqualified to become tenants of the
Lantap property and ordered the cancellation of their CLOAs. It
then ordered RBBI to execute a leasehold contract with the real
tenant of the Lantap property, Nemi.
The OIC-RARAD recognized that petitioners only right as the
actual tillers of the Murong property is to remain as the tenants
thereof after the execution of leasehold contracts with and
payment of rentals in arrears to respondents.
DARAB Decision24
Upon appeal filed by petitioners, the DARAB reversed the OICRARAD Decision. It ruled that in assailing the validity of the
CLOAs issued to petitioners as bona fide tenant-farmers, the
burden of proof rests on the respondents. There being no
evidence that the DAR field personnel were remiss in the
performance of their official duties when they issued the
corresponding CLOAs in favor of petitioners, the presumption of
regular performance of duty prevails. This conclusion is made
more imperative by the respondents admission that petitioners
are the actual tillers of the Murong property, hence qualified
beneficiaries thereof.
As for respondents allegation that they bought back the Murong
property from RBBI, the DARAB ruled that they failed to support
their allegation with substantial evidence. It gave more credence
to RBBIs claim that respondents repurchased the Lantap
property, not the Murong property. Respondents, as owners of
the Lantap property, were ordered to enter into an agricultural
leasehold contract with their brother-in-law Nemi, who is the
actual tenant of the Lantap property.
The DARAB ended its January 17, 2001 Decision in this wise:
We find no basis or justification to question the authenticity and
validity of the CLOAs issued to appellants as they are by
operation of law qualified beneficiaries over the landholdings;
there is nothing to quiet as these titles were awarded in
conformity with the CARP program implementation; and finally,
the Board declares that all controverted claims to or against the
subject landholding must be completely and finally laid to rest.
WHEREFORE, premises considered and finding reversible
errors[,] the assailed decision is ANNULLED and a new judgment
is hereby rendered, declaring:
1. Appellants Salun-at Marquez and Nestor Dela Cruz
as the bona fide tenant-tillers over the Murong
property and therefore they are the qualified
beneficiaries thereof;
2. Declaring Transfer Certificate of Title (TCT) Nos.
395 and 396 issued in the name of [farmerbeneficiaries] Salun-at Marquez and Nestor Dela Cruz
respectively, covered formerly by TCT No. 62096
(TCT No. 43258) of the Murong property as valid and
legal;

EVIDENCE

3. Ordering the co-[respondents] to firm-up an

agricultural leasehold contract with bona fide tenanttiller Nemi Fernandez over the Lantap property, [the
latter] being the subject matter of the buy back
arrangement entered into between [respondents] and
Rural Bank of Bayombong, Incorporated, and other
incidental matters are deemed resolved.
SO ORDERED.25

Ruling of the Court of Appeals

In appealing to the CA, the respondents insisted that the DARAB
erred in ruling that they repurchased the Lantap property, while
the petitioners were awarded the Murong property. They were
adamant that the title numbers indicated in their respective
deeds of conveyance should control in determining the subjects
thereof. Since respondents Deed of Sale expressed that its
subject is the property with TCT No. T-62096, then what was
sold to them was the Murong property. On the other hand,
petitioners VLTs and CLOAs say that they cover the property
with TCT No. T-62836; thus it should be understood that they
were awarded the Lantap property. Respondents added that
since petitioners are not the actual tillers of the Lantap property,
their CLOAs should be cancelled due to their lack of qualification.
The CA agreed with the respondents. Using the Best Evidence
Rule embodied in Rule 130, Section 3, the CA held that the Deed
of Sale is the best evidence as to its contents, particularly the
description of the land which was the object of the sale. Since
the Deed of Sale expressed that its subject is the land covered
by TCT No. T-62096 the Murong property then that is the
property that the respondents repurchased.
The CA further ruled that as for petitioners VLTs, the same refer
to the property with TCT No. T-62836; thus, the subject of their
CLOAs is the Lantap property. The additional description in the
VLTs that the subject thereof is located in Barangay Murong was
considered to be a mere typographical error. The CA ruled that
the technical description contained in the TCT is more accurate
in identifying the subject property since the same particularly
describes the properties metes and bounds.
Both the RBBI26 and petitioners27 filed their respective motions
for reconsideration, which were separately denied.28
On June 22, 2004, RBBI filed a separate Petition for Review on
Certiorari, docketed as G.R. No. 163320, with this Court.29 RBBI
raised the issue that the CA failed to appreciate that respondents
did not come to court with clean hands because they misled
RBBI to believe at the time of the sale that the two lots were not
tenanted. RBBI also asked that they be declared free from any
liability to the parties as it did not enrich itself at anyones
expense. RBBIs petition was dismissed on July 26, 2004 for lack
of merit. The said Resolution reads:
Considering the allegations, issues[,] and arguments adduced in
the petition for review on certiorari, the Court Resolves to DENY
the petition for lack of sufficient showing that the Court of
Appeals had committed any reversible error in the questioned
judgment to warrant the exercise by this Court of its
discretionary appellate jurisdiction in this case.30
Their Motion for Reconsideration was likewise denied with
finality.31 Entry of judgment was made in that case on December
15, 2004.32

AGUSTIN, E.P. | 44

On July 27, 2005,33 petitioners filed the instant petition.

Issues
Rephrased and consolidated, the parties present the following
issues for the Courts determination:
I
What is the effect of the final judgment dismissing RBBIs
Petition for Review on Certiorari, which assailed the same CA
Decision
II
Whether the CA erred in utilizing the Best Evidence Rule to
determine the subject of the contracts
III
What are the subject properties of the parties respective
contracts with RBBI
Our Ruling

Propriety of the Petition

Respondents maintain that the instant petition for review raises
factual issues which are beyond the province of Rule 45.34
The issues involved herein are not entirely factual. Petitioners
assail the appellate courts rejection of their evidence (as to the
contractual intent) as inadmissible under the Best Evidence Rule.
The question involving the admissibility of evidence is a legal
question that is within the Courts authority to review.35
Besides, even if it were a factual question, the Court is not
precluded to review the same. The rule that a petition for review
should raise only questions of law admits of exceptions, among
which are "(1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is
based on a misappreciation of facts; (5) when the findings of
fact are conflicting; (6) when, in making its findings, the same
are contrary to the admissions of both appellant and appellee;
(7) when the findings are contrary to those of the trial court; (8)
when the findings are conclusions without citation of specific
evidence on which they are based; (9) when the facts set forth
in the petition as well as in the petitioner's main and reply briefs
are not disputed by the respondent; and (10) when the findings
of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record."36
In the instant case, we find sufficient basis to apply the
exceptions to the general rule because the appellate court
misappreciated the facts of the case through its erroneous
application of the Best Evidence Rule, as will be discussed below.
Moreover, the disparate rulings of the three reviewing bodies
below are sufficient for the Court to exercise its jurisdiction
under Rule 45.

EVIDENCE

First Issue
Dismissal of RBBIs appeal
Respondents maintain that the Courts earlier dismissal of RBBIs
petition
for review of the same CA Decision is eloquent proof that there
is no reversible error in the appellate courts decision in favor of
the respondents.37
We are not persuaded. This Court dismissed RBBIs earlier
petition in G.R. No. 163320 because it failed to convincingly
demonstrate the alleged errors in the CA Decision. The bank did
not point out the inadequacies and errors in the appellate courts
decision but simply placed the responsibility for the confusion on
the respondents for allegedly misleading the bank as to the
identity of the properties and for misrepresenting that the two
lots were not tenanted. Thus, RBBI argued that respondents did
not come to court with clean hands.
These arguments were ineffectual in convincing the Court to
review the appellate courts Decision. It is the appellants
responsibility to point out the perceived errors in the appealed
decision. When a party merely raises equitable considerations
such as the "clean hands" doctrine without a clear-cut legal basis
and cogent arguments to support his claim, there should be no
surprise if the Court is not swayed to exercise its appellate
jurisdiction and the appeal is dismissed outright. The dismissal of
an appeal does not always and necessarily mean that the
appealed decision is correct, for it could simply be the result of
the appellants inadequate discussion, ineffectual arguments, or
even procedural lapses.
RBBIs failure to convince the Court of the merits of its appeal
should not prejudice petitioners who were not parties to RBBIs
appeal, especially because petitioners duly filed a separate
appeal and were able to articulately and effectively present their
arguments. A party cannot be deprived of his right to appeal an
adverse decision just because another party had already
appealed ahead of him,38 or just because the other partys
separate appeal had already been dismissed.39
There is another reason not to bind the petitioners to the final
judgment against RBBI. RBBI executed the transfer (VLTs) in
favor of petitioners prior to the commencement of the action.
Thus, when the action for cancellation of CLOA was filed, RBBI
had already divested itself of its title to the two properties
involved. Under the rule on res judicata, a judgment (in
personam) is conclusive only between the parties and their
successors-in-interest by title subsequent to the commencement
of the action.40 Thus, when the vendor (in this case RBBI) has
already transferred his title to third persons (petitioners), the
said transferees are not bound by any judgment which may be
rendered against the vendor.41
Second Issue
Is it correct to apply the Best Evidence Rule?
Citing the Best Evidence Rule in Rule 130, Section 3, the CA held
that the Deed of Sale between respondents and RBBI is the best
evidence as to the property that was sold by RBBI to the
respondents. Since the Deed of Sale stated that its subject is the
land covered by TCT No. T-62096 the title for the Murong
property then the property repurchased by the respondents
was the Murong property. Likewise, the CA held that since the
VLTs between petitioners and RBBI refer to TCT No. T-62836

AGUSTIN, E.P. | 45

the title for the Lantap property then the property transferred
to petitioners was the Lantap property.
Petitioners argue that the appellate court erred in using the best
evidence rule to determine the subject of the Deed of Sale and
the Deeds of Voluntary Land Transfer. They maintain that the
issue in the case is not the contents of the contracts but the
intention of the parties that was not adequately expressed in
their contracts. Petitioners then argue that it is the Parol
Evidence Rule that should be applied in order to adequately
resolve the dispute.
Indeed, the appellate court erred in its application of the Best
Evidence Rule. The Best Evidence Rule states that when the
subject of inquiry is the contents of a document, the best
evidence is the original document itself and no other evidence
(such as a reproduction, photocopy or oral evidence) is
admissible as a general rule. The original is preferred because it
reduces the chance of undetected tampering with the
document.42
In the instant case, there is no room for the application of the
Best Evidence Rule because there is no dispute regarding the
contents of the documents. It is admitted by the parties that the
respondents Deed of Sale referred to TCT No. T-62096 as its
subject; while the petitioners Deeds of Voluntary Land Transfer
referred to TCT No. T-62836 as its subject, which is further
described as located in Barangay Murong.
The real issue is whether the admitted contents of these
documents adequately and correctly express the true intention
of the parties. As to the Deed of Sale, petitioners (and RBBI)
maintain that while it refers to TCT No. T-62096, the parties
actually intended the sale of the Lantap property (covered by
TCT No. T-62836).
As to the VLTs, respondents contend that the reference to TCT
No. T-62836 (corresponding to the Lantap property) reflects the
true intention of RBBI and the petitioners, and the reference to
"Barangay Murong" was a typographical error. On the other
hand, petitioners claim that the reference to "Barangay Murong"
reflects their true intention, while the reference to TCT No. T62836 was a mere error. This dispute reflects an intrinsic
ambiguity in the contracts, arising from an apparent failure of
the instruments to adequately express the true intention of the
parties. To resolve the ambiguity, resort must be had to
evidence outside of the instruments.
The CA, however, refused to look beyond the literal wording of
the documents and rejected any other evidence that could shed
light on the actual intention of the contracting parties. Though
the CA cited the Best Evidence Rule, it appears that what it
actually applied was the Parol Evidence Rule instead, which
provides:
When the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon and
there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of
the written agreement.43
The Parol Evidence Rule excludes parol or extrinsic evidence by
which a party seeks to contradict, vary, add to or subtract from
the terms of a valid agreement or instrument. Thus, it appears
that what the CA actually applied in its assailed Decision when it
refused to look beyond the words of the contracts was the Parol
Evidence Rule, not the Best Evidence Rule. The appellate court

EVIDENCE

gave primacy to the literal terms of the two contracts and

refused to admit any other evidence that would contradict such
terms.
However, even the application of the Parol Evidence Rule is
improper in the case at bar. In the first place, respondents are
not parties to the VLTs executed between RBBI and petitioners;
they are strangers to the written contracts. Rule 130, Section 9
specifically provides that parol evidence rule is exclusive only as
"between the parties and their successors-in-interest." The parol
evidence rule may not be invoked where at least one of the
parties to the suit is not a party or a privy of a party to the
written document in question, and does not base his claim on
the instrument or assert a right originating in the instrument.44
Moreover, the instant case falls under the exceptions to the
Parol Evidence Rule, as provided in the second paragraph of
Rule 130, Section 9:
However, a party may present evidence to modify, explain or
add to the terms of the written agreement if he puts in issue in
his pleading:
(1) An intrinsic ambiguity, mistake or imperfection in
the written agreement;
(2) The failure of the written agreement to express
the true intent and agreement of the parties thereto;
x x x x (Emphasis supplied)
Here, the petitioners VLTs suffer from intrinsic ambiguity. The
VLTs described the subject property as covered by TCT No. T62836 (Lantap property), but they also describe the subject
property as being located in "Barangay Murong." Even the
respondents Deed of Sale falls under the exception to the Parol
Evidence Rule. It refers to "TCT No. T-62096" (Murong
property), but RBBI contended that the true intent was to sell
the Lantap property. In short, it was squarely put in issue that
the written agreement failed to express the true intent of the
parties.
Based on the foregoing, the resolution of the instant case
necessitates an examination of the parties respective parol
evidence, in order to determine the true intent of the parties.
Well-settled is the rule that in case of doubt, it is the intention of
the contracting parties that prevails, for the intention is the soul
of a contract,45 not its wording which is prone to mistakes,
inadequacies, or ambiguities. To hold otherwise would give life,
validity, and precedence to mere typographical errors and defeat
the very purpose of agreements.
In this regard, guidance is provided by the following articles of
the Civil Code involving the interpretation of contracts:
Article 1370. If the terms of a contract are clear and leave no
doubt upon the intention of the contracting parties, the literal
meaning of its stipulations shall control.
If the words appear to be contrary to the evident intention of
the parties, the latter shall prevail over the former.
Article 1371. In order to judge the intention of the contracting
parties, their contemporaneous and subsequent acts shall be
principally considered.

AGUSTIN, E.P. | 46

Rule 130, Section 13 which provides for the rules on the

interpretation of documents is likewise enlightening:
Section 13. Interpretation according to circumstances. For the
proper construction of an instrument, the circumstances under
which it was made, including the situation of the subject thereof
and of the parties to it, may be shown, so that the judge may be
placed in the position of those whose language he is to interpret.
Applying the foregoing guiding rules, it is clear that the Deed of
Sale was intended to transfer the Lantap property to the
respondents, while the VLTs were intended to convey the
Murong property to the petitioners. This may be seen from the
contemporaneous and subsequent acts of the parties.
Third issue
Determining the intention of the parties
regarding the subjects of their contracts

petitioners were in possession of the Murong property,

undisturbed by anyone for several long years, until respondents
started the controversy in 1997.
All of these contemporaneous and subsequent actions of RBBI
and petitioners support their position that the subject of their
contract (VLTs) is the Murong property, not the Lantap property.
Conversely, there has been no contrary evidence of the parties
actuations to indicate that they intended the sale of the Lantap
property. Thus, it appears that the reference in their VLT to TCT
No. T-62836 (Lantap property) was due to their honest but
mistaken belief that the said title covers the Murong property.
Such a mistake is not farfetched considering that TCT No. T62836 only refers to the Municipality of Bayombong, Nueva
Vizcaya, and does not indicate the particular barangay where the
property is located. Moreover, both properties are bounded by a
road and public land. Hence, were it not for the detailed
technical description, the titles for the two properties are very
similar.

We are convinced that the subject of the Deed of Sale between

RBBI and the respondents was the Lantap property, and not the
Murong property. After the execution in 1985 of the Deed of
Sale, the respondents did not exercise acts of ownership that
could show that they indeed knew and believed that they
repurchased the Murong property. They did not take possession
of the Murong property. As admitted by the parties, the Murong
property was in the possession of the petitioners, who occupied
and tilled the same without any objection from the respondents.
Moreover, petitioners paid leasehold rentals for using the
Murong property to RBBI, not to the respondents.

The respondents attempt to discredit petitioners argument that

their VLTs were intrinsically ambiguous and failed to express
their true intention by asking why petitioners never filed an
action for the reformation of their contract.46 A cause of action
for the reformation of a contract only arises when one of the
contracting parties manifests an intention, by overt acts, not to
abide by the true agreement of the parties.47 It seems fairly
obvious that petitioners had no cause to reform their VLTs
because the parties thereto (RBBI and petitioners) never had
any dispute as to the interpretation and application thereof.
They both understood the VLTs to cover the Murong property
(and not the Lantap property). It was only much later, when
strangers to the contracts argued for a different interpretation,
that the issue became relevant for the first time.

Aside from respondents neglect of their alleged ownership rights

over the Murong property, there is one other circumstance that
convinces us that what respondents really repurchased was the
Lantap property. Respondent Nemi (husband of respondent
Elenita) is the farmer actually tilling the Lantap property, without
turning over the supposed landowners share to RBBI. This
strongly indicates that the respondents considered themselves
(and not RBBI) as the owners of the Lantap property. For if
respondents (particularly spouses Elenita and Nemi) truly
believed that RBBI retained ownership of the Lantap property,
how come they never complied with their obligations as
supposed tenants of RBBIs land? The factual circumstances of
the case simply do not support the theory propounded by the
respondents.

All told, we rule that the Deed of Sale dated February 26, 1985
between respondents and RBBI covers the Lantap property
under TCT No. T-62836, while the Deeds of Voluntary Land
Transfer and TCT Nos. CLOA-395 and CLOA-396 of the
petitioners cover the Murong property under TCT No. T-62096.
In consequence, the CAs ruling against RBBI should not be
executed as such execution would be inconsistent with our ruling
herein. Although the CAs decision had already become final and
executory as against RBBI with the dismissal of RBBIs petition in
G.R. No. 163320, our ruling herein in favor of petitioners is a
supervening cause which renders the execution of the CA
decision against RBBI unjust and inequitable.

We are likewise convinced that the subject of the Deeds of

Voluntary Land Transfer (VLTs) in favor of petitioners was the
Murong property, and not the Lantap property. When the VLTs
were executed in 1990, petitioners were already the tenantfarmers of the Murong property, and had been paying rentals to
RBBI accordingly. It is therefore natural that the Murong
property and no other was the one that they had intended to
acquire from RBBI with the execution of the VLTs. Moreover,
after the execution of the VLTs, petitioners remained in
possession of the Murong property, enjoying and tilling it
without any opposition from anybody. Subsequently, after the
petitioners completed their payment of the total purchase price
of P90,000.00 to RBBI, the Department of Agrarian Reform
(DAR) officials conducted their investigation of the Murong
property which, with the presumption of regularity in the
performance of official duty, did not reveal any anomaly.
Petitioners were found to be in actual possession of the Murong
property and were the qualified beneficiaries thereof. Thus, the
DAR officials issued CLOAs in petitioners favor; and these CLOAs
explicitly refer to the land in Barangay Murong. All this time,

EVIDENCE

WHEREFORE, the Petition for Review on Certiorari is

GRANTED. The assailed October 7, 2003 Decision, as well as
the May 11, 2005 Resolution of the Court of Appeals in CA-G.R.
SP No. 69981 are REVERSED and SET ASIDE. The January
17, 2001 Decision of the DARAB Central Office is REINSTATED.
The Deed of Sale dated February 26, 1985 between respondents
and Rural Bank of Bayombong, Inc. covers the Lantap property
under TCT No. T-62836, while the Deeds of Voluntary Land
Transfer and TCT Nos. CLOA-395 and CLOA-396 of the
petitioners cover the Murong property under TCT No. T-62096.
The Register of Deeds of Nueva Vizcaya is directed to make the
necessary corrections to the titles of the said properties in
accordance with this Decision. Costs against respondents.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

AGUSTIN, E.P. | 47

RULE 130: Rules of Admissibility

(a) Sec. 20 - Sec 24: Testimonial Evidence;
Qualification of Witnesses
(b) Sec. 1 - 7: Rules on Examination of Child Witness

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC
OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE
ON TRADE AND COMMERCE, AND SENATE COMMITTEE
ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that
adheres to the Office of the President. It exists to protect public
interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the
benefit of candid, objective and untrammeled communication
and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and
arriving at decisions in the exercise of the functions of the
Presidency under the Constitution. The confidentiality of the
Presidents conversations and correspondence is not unique. It is
akin to the confidentiality of judicial deliberations. It possesses
the same value as the right to privacy of all citizens and more,
because it is dictated by public interest and the constitutionally
ordained separation of governmental powers.
In these proceedings, this Court has been called upon to
exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Courts co-equal
branches of government. In this task, this Court should neither
curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the
boundaries set for it by our Constitution. The competing
interests in the case at bar are the claim of executive privilege
by the President, on the one hand, and the respondent Senate
Committees assertion of their power to conduct legislative
inquiries, on the other. The particular facts and circumstances of
the present case, stripped of the politically and emotionally
charged rhetoric from both sides and viewed in the light of
settled constitutional and legal doctrines, plainly lead to the
conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated
March 25, 2008 (the "Decision"), granting the petition for
certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public
Officers and Investigations,1 Trade and Commerce,2 and
National Defense and Security (collectively the "respondent
Committees").3

EVIDENCE

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent
Committees and testified for about eleven (11) hours on matters
concerning the National Broadband Project (the "NBN Project"),
a project awarded by the Department of Transportation and
Communications ("DOTC") to Zhong Xing Telecommunications
Equipment ("ZTE"). Petitioner disclosed that then Commission on
Elections ("COMELEC") Chairman Benjamin Abalos offered him
P200 Million in exchange for his approval of the NBN Project. He
further narrated that he informed President Gloria Macapagal
Arroyo ("President Arroyo") of the bribery attempt and that she
instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioners discussions relating
to the NBN Project, petitioner refused to answer, invoking
"executive privilege." To be specific, petitioner refused to answer
questions on: (a) whether or not President Arroyo followed up
the NBN Project,4 (b) whether or not she directed him to
prioritize it,5 and (c) whether or not she directed him to approve
it.6
Respondent Committees persisted in knowing petitioners
answers to these three questions by requiring him to appear and
testify once more on November 20, 2007. On November 15,
2007, Executive Secretary Eduardo R. Ermita wrote to
respondent Committees and requested them to dispense with
petitioners testimony on the ground of executive privilege.7 The
letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing
questions
fall
under
conversations
and
correspondence between the President and public
officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995;
Chavez v. PEA, G.R. 133250, July 9, 2002).
Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive
and policy decision making process. The expectation
of a President to the confidentiality of her
conversations and correspondences, like the value
which we accord deference for the privacy of all
citizens, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling
effect on the President, and will hamper her in the
effective discharge of her duties and responsibilities,
if she is not protected by the confidentiality of her
conversations.
The context in which executive privilege is being
invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic
relations with the Peoples Republic of China. Given
the confidential nature in which these information
were conveyed to the President, he cannot provide
the Committee any further details of these
conversations, without disclosing the very thing the
privilege is designed to protect.
In light of the above considerations, this Office is
constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily
interrogated on the subject in an unprecedented 11hour hearing, wherein he has answered all questions

AGUSTIN, E.P. | 48

propounded to him except the foregoing questions

involving executive privilege, we therefore request
that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before
respondent Committees upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent
Committees issued the show-cause letter requiring him to
explain why he should not be cited in contempt. On November
29, 2007, in petitioners reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate
hearing and that he thought the only remaining questions were
those he claimed to be covered by executive privilege. He also
manifested his willingness to appear and testify should there be
new matters to be taken up. He just requested that he be
furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations
unsatisfactory. Without responding to his request for advance
notice of the matters that he should still clarify, they issued the
Order dated January 30, 2008; In Re: P.S. Res. Nos.
127,129,136 & 144; and privilege speeches of Senator Lacson
and Santiago (all on the ZTE-NBN Project), citing petitioner in
contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-at-Arms until
such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of
the above Order.8 He insisted that he had not shown "any
contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters, but
respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for
certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent
Committees from enforcing the order dated January 30, 2008
which declared him in contempt and directed his arrest and
detention.
Petitioner then filed his Supplemental Petition for Certiorari (with
Urgent Application for TRO/Preliminary Injunction) on February
1, 2008. In the Courts Resolution dated February 4, 2008, the
parties were required to observe the status quo prevailing prior
to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari
on two grounds: first, the communications elicited by the three
(3) questions were covered by executive privilege; and second,
respondent Committees committed grave abuse of discretion in
issuing the contempt order. Anent the first ground, we
considered the subject communications as falling under the
presidential communications privilege because (a) they
related to a quintessential and non-delegable power of the
President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately
show a compelling need that would justify the limitation of the
privilege and the unavailability of the information elsewhere by
an appropriate investigating authority. As to the second ground,
we found that respondent Committees committed grave abuse
of discretion in issuing the contempt order because (a) there
was a valid claim of executive privilege, (b) their invitations to
petitioner did not contain the questions relevant to the inquiry,
(c) there was a cloud of doubt as to the regularity of the
proceeding that led to their issuance of the contempt order, (d)
they violated Section 21, Article VI of the Constitution because
their inquiry was not in accordance with the "duly published

EVIDENCE

rules of procedure," and (e) they issued the contempt order

arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present
motion for reconsideration, anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURTS
DECISION, THERE IS NO DOUBT THAT THE
ASSAILED
ORDERS
WERE
ISSUED
BY
RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER,
AND
NOT
MERELY
THEIR
OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS
DECISION, THERE CAN BE NO PRESUMPTION
THAT THE INFORMATION WITHHELD IN THE
INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS
DECISION, THERE IS NO FACTUAL OR LEGAL
BASIS TO HOLD THAT THE COMMUNICATIONS
ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE
PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS
FOR WHICH EXECUTIVE PRIVILEGE IS
CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS
HONORABLE COURT IN THE DECISION IS
APPLIED, THERE IS NO SHOWING THAT THE
ELEMENTS
OF
PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE
SHOWING OF A COMPELLING NEED TO
JUSTIFY
THE
DISCLOSURE
OF
THE
INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE
PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS
PERFORMANCE OF THEIR PRIMARY FUNCTION
TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF
THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL
POLICIES
ON
PUBLIC
ACCOUNTABILITY
AND
TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE
PRIVILEGE.
IV

AGUSTIN, E.P. | 49

CONTRARY TO THIS HONORABLE COURTS

DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING
THE
ASSAILED
CONTEMPT
ORDER,
CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF
EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE
SUPPOSED REQUIREMENTS LAID DOWN IN
SENATE V. ERMITA.
C.
RESPONDENTS
DULY
ISSUED
THE
CONTEMPT ORDER IN ACCORDANCE WITH
THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE
REQUIREMENTS UNDER ARTICLE VI, SECTION
21 OF THE CONSTITUTION REQUIRING THAT
ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS
WHEN THE COURT CONSIDERED THE OSGS
INTERVENTION ON THIS ISSUE WITHOUT
GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.

communications enjoy a presumptive privilege against disclosure

as earlier held in Almonte v. Vasquez9 and Chavez v. Public
Estates Authority (PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because
all the elements of the presidential communications privilege are
present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under
existing law and jurisprudence; (5) the failure of the present
Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution
dated March 18, 2008 (granting the Office of the Solicitor
Generals Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this
case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective
contentions of the opposing parties are as follows:
(1) whether or not there is a recognized presumptive
presidential communications privilege in our legal
system;
(2) whether or not there is factual or legal basis to
hold that the communications elicited by the three (3)
questions are covered by executive privilege;

E.
RESPONDENTS
ISSUANCE
OF
THE
CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE.
In his Comment, petitioner charges respondent Committees with
exaggerating and distorting the Decision of this Court. He avers
that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional
questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision
did not reverse the presumption against executive secrecy laid
down in Senate v. Ermita; second, respondent Committees
failed to overcome the presumption of executive privilege
because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they
admitted that they could dispense with petitioners testimony if
certain NEDA documents would be given to them; third, the
requirement of specificity applies only to the privilege for State,
military and diplomatic secrets, not to the necessarily broad and
all-encompassing presidential communications privilege; fourth,
there is no right to pry into the Presidents thought processes or
exploratory exchanges; fifth, petitioner is not covering up or
hiding anything illegal; sixth, the Court has the power and duty
to annul the Senate Rules; seventh, the Senate is not a
continuing body, thus the failure of the present Senate to
publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of
questions comports with due process and the constitutional
mandate that the rights of witnesses be respected; and ninth,
neither petitioner nor respondent has the final say on the matter
of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that:
(1) there is no categorical pronouncement from the Court that
the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason
for them "to make much" of the distinction between Sections 21
and 22, Article VI of the Constitution; (2) presidential

EVIDENCE

(3) whether or not respondent Committees have

shown that the communications elicited by the three
(3) questions are critical to the exercise of their
functions; and
(4) whether or not respondent Committees
committed grave abuse of discretion in issuing the
contempt order.
We shall discuss these issues seriatim.
I

There Is a Recognized Presumptive

Presidential Communications Privilege
Respondent Committees ardently argue that the Courts
declaration that presidential communications are presumptively
privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in
favor of disclosure." Respondent Committees then claim that the
Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the
presumption in favor of the presidential communications
privilege is mentioned and adopted in our legal system. That is
far from the truth. The Court, in the earlier case of Almonte v.
Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita,13 the case relied upon by
respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive
privilege was recognized, among them Almonte v. Chavez,

Chavez v. Presidential Commission on Good Government

(PCGG),14 and Chavez v. PEA.15 The Court articulated in these

cases that "there are certain types of information which the

AGUSTIN, E.P. | 50

government may withhold from the public,16" that there is a

"governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national
security matters";17 and that "the right to information does
not extend to matters recognized as privileged
information under the separation of powers, by which
the
Court
meant
Presidential
conversations,
correspondences, and discussions in closed-door Cabinet
meetings."18
Respondent Committees observation that this Courts Decision
reversed the "presumption that inclines heavily against executive
secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly
held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and
resorted to, but the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of
the circumstances obtaining in Senate v. Ermita, which declared
void Sections 2(b) and 3 of Executive Order (E.O.) No. 464,
Series of 2005. The pertinent portion of the decision in the said
case reads:
From the above discussion on the meaning and scope
of executive privilege, both in the United States and
in this jurisprudence, a clear principle emerges.
Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only
in relation to certain types of information of a
sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid
or not depending on the ground invoked to justify it
and the context in which it is made. Noticeably absent
is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact
of
being
executive
officials.
Indeed,
the
extraordinary character of the exemptions
indicates that the presumption inclines heavily
against executive secrecy and in favor of
disclosure. (Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in
Senate v. Ermita refers to the "exemption" being claimed by the
executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This
means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be
exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the
President to said executive official, such that the presumption
in this situation inclines heavily against executive secrecy and in
favor of disclosure.

Senate v. Ermita

ruling in this wise:

20

expounds on the premise of the foregoing

Section 2(b) in relation to Section 3 virtually provides

that, once the head of office determines that a certain
information is privileged, such determination is
presumed to bear the Presidents authority and has
the effect of prohibiting the official from appearing
before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus
allow the President to authorize claims of privilege by
mere silence.

EVIDENCE

Such presumptive authorization, however, is contrary

to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with
respect to information the confidential nature of
which is crucial to the fulfillment of the unique role
and responsibilities of the executive branch, or in
those instances where exemption from disclosure is
necessary to the discharge of highly important
executive responsibilities. The doctrine of executive
privilege is thus premised on the fact that certain
information must, as a matter of necessity, be
kept confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the
obligation to disclose information, in this case to
Congress, the necessity must be of such high degree
as to outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the
privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may
of course authorize the Executive Secretary to invoke
the privilege on her behalf, in which case the
Executive Secretary must state that the authority is
"By order of the President", which means that he
personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other
words, the President may not authorize her
subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant
case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is
further invalid on this score.
The constitutional infirmity found in the blanket authorization to
invoke executive privilege granted by the President to executive
officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive
Secretary Ermita, who invoked executive privilege on a specific
matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3)
questions propounded to petitioner Neri in the course of the
Senate Committees investigation. Thus, the factual setting of
this case markedly differs from that passed upon in Senate v.
Ermita.
Moreover, contrary to the claim of respondents, the Decision in
this present case hews closely to the ruling in Senate v. Ermita,21
to wit:

Executive privilege
The phrase "executive privilege" is not new in
this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of
American origin, it is best understood in light of how
it has been defined and used in the legal literature of
the United States.
Schwart defines executive privilege as "the power of
the Government to withhold information from
the public, the courts, and the Congress.
Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to
withhold information from Congress, the courts, and

AGUSTIN, E.P. | 51

ultimately the public." x x x In this jurisdiction, the

doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez. Almonte used the term
in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision
which explains the basis for the privilege:
"The

expectation

confidentiality of
correspondences,

of

his

President

to

conversations

the

and

like
the
claim
of
confidentiality of judicial deliberations, for
example, he has all the values to which we accord
deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A

President and those who assist him must be free to

explore alternatives in the process of shaping policies
and making decisions and to do so in a way many
would be unwilling to express except privately. These

are the considerations justifying a presumptive

privilege for Presidential communications. The
privilege is fundamental to the operation of
government and inextricably rooted in the
separation of powers under the Constitution x
x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a
presumptive privilege for Presidential communication," which
was recognized early on in Almonte v. Vasquez. To construe the
passage in Senate v. Ermita adverted to in the Motion for
Reconsideration of respondent Committees, referring to the nonexistence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive
privilege "inclines heavily against executive secrecy and in favor
of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning

of the relationship between the Executive Department and the

Legislative Department to explain why there should be no
implied authorization or presumptive authorization to invoke
executive privilege by the Presidents subordinate officials, as
follows:
When Congress exercises its power of inquiry,
the only way for department heads to exempt
themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact
that they are department heads. Only one
executive official may be exempted from this power the President on whom executive power is vested,
hence, beyond the reach of Congress except through
the power of impeachment. It is based on he being
the highest official of the executive branch, and the
due respect accorded to a co-equal branch of
governments which is sanctioned by a long-standing
custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of
presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given
preference or priority, in the absence of proof of a compelling or
critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence
in favor of executive privilege. In fact, Senate v. Ermita

EVIDENCE

reiterates jurisprudence citing "the considerations justifying a

presumptive privilege for Presidential communications."23
II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited
by the three (3) questions are not covered by executive privilege
because the elements of the presidential communications
privilege are not present.

A. The power to enter into an executive agreement is a

"quintessential and non-delegable presidential power."
First, respondent Committees contend that the power to secure

a foreign loan does not relate to a "quintessential and nondelegable presidential power," because the Constitution does not
vest it in the President alone, but also in the Monetary Board
which is required to give its prior concurrence and to report to
Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another
entity does not make such power less executive. "Quintessential"
is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "nondelegable" means that a power or duty cannot be delegated to
another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in
essence an executive power. This authority of the President to
enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine
jurisprudence.26 Now, the fact that the President has to secure
the prior concurrence of the Monetary Board, which shall submit
to Congress a complete report of its decision before contracting
or guaranteeing foreign loans, does not diminish the executive
nature of the power.
The inviolate doctrine of separation of powers among the
legislative, executive and judicial branches of government by no
means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by
the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three
branches. Thus, by analogy, the fact that certain legislative acts
require action from the President for their validity does not
render such acts less legislative in nature. A good example is the
power to pass a law. Article VI, Section 27 of the Constitution
mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve
or veto the same. The fact that the approval or vetoing of the
bill is lodged with the President does not render the power to
pass law executive in nature. This is because the power to pass
law is generally a quintessential and non-delegable power of the
Legislature. In the same vein, the executive power to enter or
not to enter into a contract to secure foreign loans does not
become less executive in nature because of conditions laid down
in the Constitution. The final decision in the exercise of the said
executive power is still lodged in the Office of the President.

AGUSTIN, E.P. | 52

B. The "doctrine of operational proximity" was laid down

precisely to limit the scope of the presidential
communications privilege but, in any case, it is not
conclusive.
Second, respondent Committees also seek reconsideration of

the application of the "doctrine of operational proximity" for the

reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications
between those who are operationally proximate to the President
but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity"
was laid down in In re: Sealed Case27precisely to limit the scope
of the presidential communications privilege. The U.S. court was
aware of the dangers that a limitless extension of the privilege
risks and, therefore, carefully cabined its reach by explicitly
confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has
"operational proximity" to direct presidential decision-making,
thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to
a large swath of the executive branch a privilege that
is bottomed on a recognition of the unique role of the
President. In order to limit this risk, the presidential
communications privilege should be construed as
narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making
process is adequately protected. Not every person
who plays a role in the development of
presidential advice, no matter how remote and
removed from the President, can qualify for the
privilege. In particular, the privilege should not
extend to staff outside the White House in
executive branch agencies. Instead, the privilege
should apply only to communications authored or
solicited and received by those members of an
immediate White House advisors staff who have
broad and significant responsibility for investigation
and formulating the advice to be given the President
on the particular matter to which the communications
relate. Only communications at that level are
close enough to the President to be revelatory
of his deliberations or to pose a risk to the
candor of his advisers. See AAPS, 997 F.2d at
910 (it is "operational proximity" to the
President that matters in determining whether
"[t]he Presidents confidentiality interests" is
implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a
large swath of the executive branch" (a fear apparently
entertained by respondents) is absent because the official
involved here is a member of the Cabinet, thus, properly within
the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in
which the official involved is far too remote, this Court also
mentioned in the Decision the organizational test laid down in
Judicial Watch, Inc. v. Department of Justice.28 This goes to
show that the operational proximity test used in the Decision is
not considered conclusive in every case. In determining which
test to use, the main consideration is to limit the availability of
executive privilege only to officials who stand proximate to the
President, not only by reason of their function, but also by
reason of their positions in the Executives organizational
structure. Thus, respondent Committees fear that the scope of

EVIDENCE

the privilege would be unnecessarily expanded with the use of

the operational proximity test is unfounded.

C. The Presidents claim of executive privilege is not

merely based on a generalized interest; and in balancing
respondent Committees and the Presidents clashing
interests, the Court did not disregard the 1987
Constitutional provisions on government transparency,
accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in

upholding the Presidents invocation, through the Executive

Secretary, of executive privilege because (a) between
respondent Committees specific and demonstrated need and the
Presidents generalized interest in confidentiality, there is a need
to strike the balance in favor of the former; and (b) in the
balancing of interest, the Court disregarded the provisions of the
1987 Philippine Constitution on government transparency,
accountability and disclosure of information, specifically, Article
III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI,
Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34
and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive
privilege is not merely founded on her generalized interest in
confidentiality. The Letter dated November 15, 2007 of
Executive
Secretary
Ermita
specified
presidential
communications privilege in relation to diplomatic and
economic relations with another sovereign nation as the
bases for the claim. Thus, the Letter stated:
The context in which executive privilege is
being invoked is that the information sought to
be disclosed might impair our diplomatic as
well as economic relations with the Peoples
Republic of China. Given the confidential nature in
which this information were conveyed to the
President, he cannot provide the Committee any
further details of these conversations, without
disclosing the very thing the privilege is designed to
protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not
require the Executive to state the reasons for the claim with
such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of
respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of
the Presidents communication with her advisor. The NBN Project
involves a foreign country as a party to the agreement. It was
actually a product of the meeting of minds between officials of
the Philippines and China. Whatever the President says about
the agreement - particularly while official negotiations are
ongoing - are matters which China will surely view with
particular interest. There is danger in such kind of exposure. It
could adversely affect our diplomatic as well as economic
relations with the Peoples Republic of China. We reiterate the
importance of secrecy in matters involving foreign negotiations
as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution,
and their success must often depend on secrecy, and
even when brought to a conclusion, a full disclosure
of all the measures, demands, or eventual
concessions which may have been proposed or
contemplated would be extremely impolitic, for this

AGUSTIN, E.P. | 53

might have a pernicious influence on future

negotiations or produce immediate inconveniences,
perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy
was one cogent reason for vesting the power of
making treaties in the President, with the advice and
consent of the Senate, the principle on which the
body was formed confining it to a small number of
members. To admit, then, a right in the House of
Representatives to demand and to have as a matter
of course all the papers respecting a negotiation with
a foreign power would be to establish a dangerous
precedent.
US jurisprudence clearly guards against the dangers of allowing
Congress access to all papers relating to a negotiation with a
foreign power. In this jurisdiction, the recent case of Akbayan
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld
the privileged character of diplomatic negotiations. In Akbayan,
the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations
has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court
in Chavez v. PCGG held that "information on intergovernment exchanges prior to the conclusion of
treaties and executive agreements may be subject to
reasonable safeguards for the sake of national
interest." Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons
for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were
seeking
information
from
the
Presidents
representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement.
The Court denied the petition, stressing that
"secrecy of negotiations with foreign countries
is not violative of the constitutional provisions of
freedom of speech or of the press nor of the
freedom of access to information." The
Resolution went on to state, thus:
The nature of diplomacy requires
centralization
of
authority
and
expedition of decision which are
inherent in executive action. Another
essential characteristic of diplomacy
is its confidential nature. Although
much has been said about "open" and
"secret" diplomacy, with disparagement of
the latter, Secretaries of State Hughes and
Stimson have clearly analyzed and justified
the practice. In the words of Mr. Stimson:
"A complicated negotiation
cannot be carried through
without many, many private
talks and discussion, man to
man;
many
tentative
suggestions and proposals.
Delegates
from
other
countries come and tell you
in
confidence
of
their
troubles at home and of

EVIDENCE

their differences with other

countries and with other
delegates; they tell you of
what they would do under
certain circumstances and
would not do under other
circumstances If these
reports should become
public who would ever
trust American Delegations
in
another
conference?
(United States Department of
State, Press Releases, June 7,
1930, pp. 282-284)
xxxx
There is frequent criticism of the
secrecy in which negotiation with
foreign powers on nearly all subjects
is concerned. This, it is claimed, is
incompatible with the substance of
democracy. As expressed by one writer,
"It can be said that there is no more rigid
system of silence anywhere in the world."
(E.J.
Young,
Looking
Behind
the
Censorship, J. B. Lipincott Co., 1938)
President Wilson in starting his efforts for
the conclusion of the World War declared
that we must have "open covenants,
openly arrived at." He quickly abandoned
his thought.
No one who has studied the question
believes that such a method of publicity is
possible.
In
the
moment
that
negotiations are started, pressure
groups attempt to "muscle in." An illtimed speech by one of the parties or
a frank declaration of the concession
which are exacted or offered on both
sides would quickly lead to a
widespread propaganda to block the
negotiations. After a treaty has been
drafted and its terms are fully
published, there is ample opportunity
for discussion before it is approved.
(The New American Government and Its
Works, James T. Young, 4th Edition, p.
194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the
doctrine in U.S. v. Curtiss-Wright Export Corp. that
the President is the sole organ of the nation in its
negotiations with foreign countries,viz:
"x x x In this vast external realm, with its
important, complicated, delicate and
manifold problems, the President alone has
the power to speak or listen as a
representative of the nation. He makes
treaties with the advice and consent of the
Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot
intrude; and Congress itself is powerless to
invade it. As Marshall said in his great
arguments of March 7, 1800, in the House
of Representatives, "The President is the

AGUSTIN, E.P. | 54

sole organ of the nation in its

external relations, and its sole
representative with foreign nations."
Annals, 6th Cong., col. 613 (Emphasis
supplied; underscoring in the original)
Considering that the information sought through the three (3)
questions subject of this Petition involves the Presidents
dealings with a foreign nation, with more reason, this Court is
wary of approving the view that Congress may peremptorily
inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her close
advisors on the pretext that said questions serve some vague
legislative need. Regardless of who is in office, this Court can
easily foresee unwanted consequences of subjecting a Chief
Executive to unrestricted congressional inquiries done with
increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of
intense and unchecked legislative incursion into the core of the
Presidents decision-making process, which inevitably would
involve her conversations with a member of her Cabinet.
With respect to respondent Committees invocation of
constitutional prescriptions regarding the right of the people to
information and public accountability and transparency, the
Court finds nothing in these arguments to support respondent
Committees case.
There is no debate as to the importance of the constitutional
right of the people to information and the constitutional policies
on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic
government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public
accountability and democratic government would certainly be
mere empty words if access to such information of public
concern is denied.
In the case at bar, this Court, in upholding executive privilege
with respect to three (3) specific questions, did not in any way
curb the publics right to information or diminish the importance
of public accountability and transparency.
This Court did not rule that the Senate has no power to
investigate the NBN Project in aid of legislation. There is nothing
in the assailed Decision that prohibits respondent Committees
from inquiring into the NBN Project. They could continue the
investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our
Decision merely excludes from the scope of respondents
investigation the three (3) questions that elicit answers covered
by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said
questions. We have discussed the reasons why these answers
are covered by executive privilege. That there is a recognized
public interest in the confidentiality of such information is a
recognized principle in other democratic States. To put it simply,
the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent
Committees do not espouse an absolute right to information. By
their wording, the intention of the Framers to subject such right
to the regulation of the law is unmistakable. The highlighted
portions of the following provisions show the obvious limitations
on the right to information, thus:

EVIDENCE

Article III, Sec. 7. The right of the people to

information on matters of public concern shall be
recognized. Access to official records, and to
documents, and papers pertaining to official records,
and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject
to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable
conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all
its transactions involving public interest. (Emphasis

supplied)

In Chavez v. Presidential Commission on Good Government,40 it

was stated that there are no specific laws prescribing the exact
limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it
enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and
banking transactions, (3) criminal matters, and (4) other
confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as
information on inter-government exchanges prior to the
conclusion of treaties and executive agreements. It was
further held that even where there is no need to protect
such state secrets, they must be "examined in strict
confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of
respondent Committees to obtain information allegedly in aid of
legislation, not the peoples right to public information. This is
the reason why we stressed in the assailed Decision the
distinction between these two rights. As laid down in Senate v.
Ermita, "the demand of a citizen for the production of
documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by
Congress" and "neither does the right to information grant a
citizen the power to exact testimony from government officials."
As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the
parties here are respondent Committees and petitioner Neri and
that there was no prior request for information on the part of
any individual citizen. This Court will not be swayed by attempts
to blur the distinctions between the Legislature's right to
information in a legitimate legislative inquiry and the public's
right to information.
For clarity, it must be emphasized that the assailed
Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from
them is to respect matters that are covered by executive
privilege.
III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees
devote an unusually lengthy discussion on the purported
legislative nature of their entire inquiry, as opposed to an
oversight inquiry.

AGUSTIN, E.P. | 55

At the outset, it must be clarified that the Decision did not pass
upon the nature of respondent Committees inquiry into the NBN
Project. To reiterate, this Court recognizes respondent
Committees power to investigate the NBN Project in aid of
legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation,
the legislative purpose of respondent Committees questions can
be sufficiently supported by the expedient of mentioning statutes
and/or pending bills to which their inquiry as a whole may have
relevance. The jurisprudential test laid down by this Court in
past decisions on executive privilege is that the presumption of
privilege can only be overturned by a showing of compelling
need for disclosure of the information covered by executive
privilege.
In the Decision, the majority held that "there is no adequate
showing of a compelling need that would justify the limitation of
the privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority." In the
Motion for Reconsideration, respondent Committees argue that
the information elicited by the three (3) questions are necessary
in the discharge of their legislative functions, among them, (a)
to consider the three (3) pending Senate Bills, and (b) to curb
graft and corruption.

xxx xxx xxx

The right to the production of all evidence at a
criminal trial similarly has constitutional dimensions.
The Sixth Amendment explicitly confers upon every
defendant in a criminal trial the right 'to be
confronted with the witness against him' and
'to have compulsory process for obtaining
witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall
be deprived of liberty without due process of
law. It is the manifest duty of the courts to
vindicate those guarantees, and to accomplish
that it is essential that all relevant and admissible
evidence be produced.
In this case we must weigh the importance of
the general privilege of confidentiality of
Presidential communications in performance of
the President's responsibilities against the
inroads of such a privilege on the fair
administration of criminal justice. (emphasis

supplied)

xxx xxx xxx

We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is
subject to balancing against other interests and it is necessary to
resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed
between presidential privilege and the legitimate claims of the
judicial process. In giving more weight to the latter, the Court
ruled that the President's generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a
pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege
would stand in the way of the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted
in the Honorable Chief Justice Puno's dissenting opinion, as
follows:
"... this presumptive privilege must be considered in
light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our
view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v.
United States, 295 U.S., at 88, 55 S.Ct., at 633. We
have elected to employ an adversary system of
criminal justice in which the parties contest all issues
before a court of law. The need to develop all
relevant facts in the adversary system is both
fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments
were to be founded on a partial or speculative
presentation of the facts. The very integrity of
the judicial system and public confidence in the
system depend on full disclosure of all the
facts, within the framework of the rules of
evidence. To ensure that justice is done, it is
imperative to the function of courts that
compulsory process be available for the
production of evidence needed either by the
prosecution or by the defense.

EVIDENCE

...the allowance of the privilege to withhold evidence

that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due
process of law and gravely impair the basic
function of the courts. A
President's
acknowledged need for confidentiality in the
communications of his office is general in nature,
whereas the constitutional need for production
of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a
particular criminal case in the administration of
justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The
President's broad interest in confidentiality of
communication will not be vitiated by disclosure
of a limited number of conversations
preliminarily shown to have some bearing on
the pending criminal cases.
We conclude that when the ground for asserting
privilege as to subpoenaed materials sought for use in
a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over
the fundamental demands of due process of
law in the fair administration of criminal
justice. The generalized assertion of privilege must
yield to the demonstrated, specific need for
evidence in a pending criminal trial. (emphasis

supplied)

In the case at bar, we are not confronted with a courts need for
facts in order to adjudge liability in a criminal case but rather
with the Senates need for information in relation to its
legislative functions. This leads us to consider once again just
how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is on
the respondent Committees, since they seek to intrude into the
sphere of competence of the President in order to gather
information which, according to said respondents, would "aid"
them in crafting legislation.

AGUSTIN, E.P. | 56

Senate Select Committee on Presidential Campaign Activities v.

Nixon41 expounded on the nature of a legislative inquiry in aid of
legislation in this wise:

The sufficiency of the Committee's showing of need

has come to depend, therefore, entirely on whether
the subpoenaed materials are critical to the
performance of its legislative functions. There is a
clear difference between Congress' legislative tasks
and the responsibility of a grand jury, or any
institution engaged in like functions. While factfinding by a legislative committee is undeniably
a part of its task, legislative judgments
normally depend more on the predicted
consequences of proposed legislative actions
and their political acceptability, than on precise
reconstruction of past events; Congress
frequently legislates on the basis of conflicting
information provided in its hearings. In contrast, the
responsibility of the grand jury turns entirely on its
ability to determine whether there is probable cause
to believe that certain named individuals did or did
not commit specific crimes. If, for example, as in
Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the
grand jury's need for the most precise evidence, the
exact text of oral statements recorded in their original
form, is undeniable. We see no comparable need
in the legislative process, at least not in the
circumstances of this case. Indeed, whatever
force there might once have been in the Committee's
argument that the subpoenaed materials are
necessary to its legislative judgments has been
substantially undermined by subsequent events.
(Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be
equated with the compelling or demonstratively critical and
specific need for facts which is so essential to the judicial power
to adjudicate actual controversies. Also, the bare standard of
"pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between
two (2) separate, co-equal and coordinate Branches of the
Government.
Whatever test we may apply, the starting point in resolving the
conflicting claims between the Executive and the Legislative
Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in
the Dissenting Opinion of the Honorable Chief Justice Puno,
which states:
A hard look at Senate v. Ermita ought to yield the
conclusion that it bestowed a qualified presumption in
favor of the Presidential communications privilege. As
shown in the previous discussion, U.S. v. Nixon, as
well as the other related Nixon cases Sirica and
Senate Select Committee on Presidential
Campaign Activities, et al., v. Nixon in the D.C.
Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in
favor of Presidential communications. The Almonte
case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential
communications.

the presumption by demonstrating their specific need for the

information to be elicited by the answers to the three (3)
questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information
is pertinent to the exercise of the power to legislate and a broad
and non-specific reference to pending Senate bills. It is not clear
what matters relating to these bills could not be determined
without the said information sought by the three (3) questions.
As correctly pointed out by the Honorable Justice Dante O. Tinga
in his Separate Concurring Opinion:
If respondents are operating under the
premise that the president and/or her
executive
officials
have
committed
wrongdoings that need to be corrected or
prevented
from
recurring
by
remedial
legislation, the answer to those three questions
will not necessarily bolster or inhibit
respondents from proceeding with such
legislation. They could easily presume the
worst of the president in enacting such
legislation.
For sure, a factual basis for situations covered by bills is not
critically needed before legislatives bodies can come up with
relevant legislation unlike in the adjudication of cases by courts
of law. Interestingly, during the Oral Argument before this Court,
the counsel for respondent Committees impliedly admitted that
the Senate could still come up with legislations even without
petitioner answering the three (3) questions. In other words, the
information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are
these questions to the lawmaking function
of the Senate. For instance, question
Number 1 whether the President followed
up the NBN project. According to the other
counsel this question has already been
asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it
was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this
to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN

The presumption in favor of Presidential communications puts

the burden on the respondent Senate Committees to overturn

EVIDENCE

AGUSTIN, E.P. | 57

For instance, with respect to the proposed

Bill of Senator Miriam Santiago, she would
like to indorse a Bill to include Executive
Agreements had been used as a device to
the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question,
Your Honor, because if we look at this
problem in its factual setting as counsel for
petitioner has observed, there are
intimations of a bribery scandal involving
high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were
you dictated to prioritize this ZTE, is that
critical to the lawmaking function of the
Senate? Will it result to the failure of the
Senate to cobble a Bill without this
question?
ATTY. AGABIN
I think it is critical to lay the factual
foundations for a proposed amendment to
the Procurement Law, Your Honor,
because the petitioner had already testified
that he was offered a P200 Million bribe,
so if he was offered a P200 Million bribe it
is possible that other government officials
who had something to do with the
approval of the contract would be offered
the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the
investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the
President said to go ahead and approve
the project after being told about the
alleged bribe. How critical is that to the
lawmaking function of the Senate? And the
question is may they craft a Bill a remedial
law without forcing petitioner Neri to
answer this question?
ATTY. AGABIN

EVIDENCE

Well, they can craft it, Your Honor,

based on mere speculation. And sound
legislation requires that a proposed Bill
should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint
the specific need for the information sought or how the
withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the
above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the
presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption,
like any other, is to dispense with the burden of proof as to
whether the disclosure will significantly impair the Presidents
performance of her function. Needless to state this is assumed,
by virtue of the presumption.
Anent respondent Committees bewailing that they would have
to "speculate" regarding the questions covered by the privilege,
this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential
Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability than on a precise reconstruction of past events. It
added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot
subscribe to the respondent Committees self-defeating
proposition that without the answers to the three (3) questions
objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be
stressed that respondent Committees need for information in
the exercise of this function is not as compelling as in instances
when the purpose of the inquiry is legislative in nature. This is
because curbing graft and corruption is merely an oversight
function of Congress.44 And if this is the primary objective of
respondent Committees in asking the three (3) questions
covered by privilege, it may even contradict their claim that their
purpose is legislative in nature and not oversight. In any event,
whether or not investigating graft and corruption is a legislative
or oversight function of Congress, respondent Committees
investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court
ruled:
The "allocation of constitutional boundaries" is
a task that this Court must perform under the
Constitution. Moreover, as held in a recent case,
"the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims.
The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution,
although said provision by no means does away with
the applicability of the principle in appropriate
cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated
inquiry by respondent Committee is not really in aid of
legislation because it is not related to a purpose within the
jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section

AGUSTIN, E.P. | 58

5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices

Act, a matter that appears more within the province of
the courts rather than of the Legislature."47 (Emphasis and
underscoring supplied)
The general thrust and the tenor of the three (3) questions is to
trace the alleged bribery to the Office of the President.48 While it
may be a worthy endeavor to investigate the potential culpability
of high government officials, including the President, in a given
government transaction, it is simply not a task for the Senate to
perform. The role of the Legislature is to make laws, not to
determine anyones guilt of a crime or wrongdoing. Our
Constitution has not bestowed upon the Legislature the latter
role. Just as the Judiciary cannot legislate, neither can the
Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an
inquiry in aid of legislation and a "search for truth," which in
respondent Committees view appears to be equated with the
search for persons responsible for "anomalies" in government
contracts.
No matter how noble the intentions of respondent Committees
are, they cannot assume the power reposed upon our
prosecutorial bodies and courts. The determination of who is/are
liable for a crime or illegal activity, the investigation of the role
played by each official, the determination of who should be
haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially
the determination of criminal guilt, are not functions of the
Senate. Congress is neither a law enforcement nor a trial
agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate
task of the Congress, i.e. legislation. Investigations conducted
solely to gather incriminatory evidence and "punish" those
investigated are indefensible. There is no Congressional power
to expose for the sake of exposure.49 In this regard, the
pronouncement in Barenblatt v. United States50 is instructive,
thus:
Broad as it is, the power is not, however,
without limitations. Since Congress may only
investigate into the areas in which it may potentially
legislate or appropriate, it cannot inquire into matters
which are within the exclusive province of one of the
other branches of the government. Lacking the
judicial power given to the Judiciary, it cannot inquire
into matters that are exclusively the concern of the
Judiciary. Neither can it supplant the Executive in
what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating
to the NBN Project have already been filed against President
Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution, it is the Ombudsman who
has the duty "to investigate any act or omission of any
public official, employee, office or agency when such act
or omission appears to be illegal, unjust, improper, or
inefficient."51 The Office of the Ombudsman is the body
properly equipped by the Constitution and our laws to
preliminarily determine whether or not the allegations of
anomaly are true and who are liable therefor. The same holds
true for our courts upon which the Constitution reposes the duty
to determine criminal guilt with finality. Indeed, the rules of
procedure in the Office of the Ombudsman and the courts are
well-defined and ensure that the constitutionally

EVIDENCE

guaranteed rights of all persons, parties and witnesses

alike, are protected and safeguarded.
Should respondent Committees uncover information related to a
possible crime in the course of their investigation, they have the
constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislatures need for
information in an investigation of graft and corruption cannot be
deemed compelling enough to pierce the confidentiality of
information validly covered by executive privilege. As discussed
above, the Legislature can still legislate on graft and corruption
even without the information covered by the three (3) questions
subject of the petition.
Corollarily, respondent Committees justify their rejection of
petitioners claim of executive privilege on the ground that there
is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an
administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required
to overcome the presumption favoring confidentiality turned,
not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the
nature and appropriateness of the function in the
performance of which the material was sought, and the
degree to which the material was necessary to its
fulfillment.
Respondent Committees assert that Senate Select Committee on
Presidential Campaign Activities v. Nixon does not apply to the
case at bar because, unlike in the said case, no impeachment
proceeding has been initiated at present. The Court is not
persuaded. While it is true that no impeachment proceeding has
been initiated, however, complaints relating to the NBN Project
have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. As the Court
has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the
Constitution and our laws to determine whether or not the
allegations of anomaly in the NBN Project are true and, if so,
who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to
the exacting standards of evidence essential to arrive at accurate
factual findings to which to apply the law. Hence, Section 10 of
the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation provides that "technical rules of evidence applicable
to judicial proceedings which do not affect substantive rights
need not be observed by the Committee." Court rules which
prohibit leading, hypothetical, or repetitive questions or
questions calling for a hearsay answer, to name a few, do not
apply to a legislative inquiry. Every person, from the highest
public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by
a competent court or body.
IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave
abuse of discretion in issuing the contempt order because (1)
there is no legitimate claim of executive privilege; (2) they did
not violate the requirements laid down in Senate v. Ermita; (3)
they issued the contempt order in accordance with their internal
Rules; (4) they did not violate the requirement under Article VI,

AGUSTIN, E.P. | 59

Section 21 of the Constitution requiring the publication of their

Rules; and (5) their issuance of the contempt order is not
arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been
fully discussed in the preceding pages, we see no reason to
discuss it once again.
Respondent Committees second argument rests on the view
that the ruling in Senate v. Ermita, requiring invitations or
subpoenas to contain the "possible needed statute which
prompted the need for the inquiry" along with the "usual
indication of the subject of inquiry and the questions relative to
and in furtherance thereof" is not provided for by the
Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of
compliance with these requirements.
An unconstrained congressional investigative power, like an
unchecked Executive, generates its own abuses. Consequently,
claims that the investigative power of Congress has been abused
(or has the potential for abuse) have been raised many times.53
Constant exposure to congressional subpoena takes its toll on
the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest
mechanisms that would not unduly limit Congress power. The
legislative inquiry must be confined to permissible areas and
thus, prevent the "roving commissions" referred to in the U.S.
case, Kilbourn v. Thompson.54 Likewise, witnesses have their
constitutional right to due process. They should be adequately
informed what matters are to be covered by the inquiry. It will
also allow them to prepare the pertinent information and
documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed
vis--vis the immensity of its power of inquiry. The logic of these
requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:
A second concern that might be addressed is that the
current system allows committees to continually
investigate the Executive without constraint. One
process solution addressing this concern is to
require each investigation be tied to a clearly
stated purpose. At present, the charters of some
congressional committees are so broad that virtually
any matter involving the Executive can be construed
to
fall
within
their
province.
Accordingly,
investigations can proceed without articulation of
specific need or purpose. A requirement for a more
precise charge in order to begin an inquiry should
immediately work to limit the initial scope of the
investigation and should also serve to contain the
investigation once it is instituted. Additionally, to
the extent clear statements of rules cause
legislatures to pause and seriously consider the
constitutional implications of proposed courses
of action in other areas, they would serve that
goal in the context of congressional
investigations as well.
The key to this reform is in its details. A system
that allows a standing committee to simply
articulate its reasons to investigate pro forma
does no more than imposes minimal drafting

EVIDENCE

burdens. Rather, the system must be designed

in a manner that imposes actual burdens on
the committee to articulate its need for
investigation and allows for meaningful debate
about the merits of proceeding with the
investigation. (Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of
questions is a reasonable demand that should have been
granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November
13, 2007 made no specific reference to any pending Senate bill.
It did not also inform petitioner of the questions to be asked. As
it were, the subpoena merely commanded him to "testify on
what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that
their Rules of Procedure Governing Inquiries in Aid of Legislation
(the "Rules") are beyond the reach of this Court. While it is true
that this Court must refrain from reviewing the internal
processes of Congress, as a co-equal branch of government,
however, when a constitutional requirement exists, the Court
has the duty to look into Congress compliance therewith. We
cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in
Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the rights of private
individuals.

United States v. Ballin, Joseph & Co., the rule was

stated thus: The Constitution empowers each House
to determine its rules of proceedings. It may not by
its rules ignore constitutional restraints or
violate fundamental rights, and there should be
a reasonable relation between the mode or
method of proceeding established by the rule
and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial
review is warranted because there appears to be a clear abuse
of the power of contempt on the part of respondent Committees.
Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its
members, may punish for contempt any witness
before it who disobey any order of the Committee or
refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members."

(Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt

as to the validity of the contempt order because during the
deliberation of the three (3) respondent Committees, only seven
(7) Senators were present. This number could hardly fulfill the
majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent
Committee on National Defense and Security which has a
membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a

AGUSTIN, E.P. | 60

membership of nine (9) Senators, only three (3) members were

present.57 These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino
Pimentel, Jr. whereby the former raised the issue of lack of the
required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing
before this Court, Senator Francis Pangilinan stated that any
defect in the committee voting had been cured because twothirds of the Senators effectively signed for the Senate in plenary
session.58
Obviously the deliberation of the respondent Committees that
led to the issuance of the contempt order is flawed. Instead of
being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and
thereafter presented to the other members for signing. As a
result, the contempt order which was issued on January 30,
2008 was not a faithful representation of the proceedings that
took place on said date. Records clearly show that not all of
those who signed the contempt order were present during the
January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid
of legislation in accordance with its duly
published rules of procedure. The rights of
person appearing in or affected by such
inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part
of the witness settled expectation. If the limitations are not
observed, the witness settled expectation is shattered. Here,
how could there be a majority vote when the members in
attendance are not enough to arrive at such majority? Petitioner
has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has
been fully deliberated upon. There is a greater measure of
protection for the witness when the concerns and objections of
the members are fully articulated in such proceeding. We do not
believe that respondent Committees have the discretion to set
aside their rules anytime they wish. This is especially true here
where what is involved is the contempt power. It must be
stressed that the Rules are not promulgated for their benefit.
More than anybody else, it is the witness who has the highest
stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to
respondent Committees fourth argument. Respondent
Committees argue that the Senate does not have to publish its
Rules because the same was published in 1995 and in 2006.
Further, they claim that the Senate is a continuing body; thus, it
is not required to republish the Rules, unless the same is
repealed or amended.
On the nature of the Senate as a "continuing body," this Court
sees fit to issue a clarification. Certainly, there is no debate that
the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in
the composition of its members. However, in the conduct of its
day-to-day business the Senate of each Congress acts separately
and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states:

EVIDENCE

RULE
UNFINISHED BUSINESS

XLIV

SEC. 123. Unfinished business at the end of the

session shall be taken up at the next session in the
same status.
All pending matters and proceedings shall
terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding
Congress as if present for the first time. (emphasis
supplied)
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the
Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should
not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending matters
will not be deemed terminated with the expiration of one
Congress but will, as a matter of course, continue into the next
Congress with the same status.
This dichotomy of the continuity of the Senate as an institution
and of the opposite nature of the conduct of its business is
reflected in its Rules. The Rules of the Senate (i.e. the Senates
main rules of procedure) states:
RULE
LI
AMENDMENTS TO, OR REVISIONS OF, THE
RULES
SEC. 136. At the start of each session in which the
Senators elected in the preceding elections shall begin
their term of office, the President may endorse the
Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a
motion which should be presented at least one day
before its consideration, and the vote of the majority
of the Senators present in the session shall be
required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date
of their adoption and shall remain in force until they
are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into
account the new composition of the Senate after an election and
the possibility of the amendment or revision of the Rules at the
start of each session in which the newly elected Senators shall
begin their term.

AGUSTIN, E.P. | 61

However, it is evident that the Senate has determined that its

main rules are intended to be valid from the date of their
adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state
"(t)hese Rules shall take effect seven (7) days after publication
in two (2) newspapers of general circulation."59 The latter does
not explicitly provide for the continued effectivity of such rules
until they are amended or repealed. In view of the difference in
the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue
into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come
within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution
requiring that the inquiry be conducted in accordance with the
duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative
inquiries in each Congress or otherwise make the published rules
clearly state that the same shall be effective in subsequent
Congresses or until they are amended or repealed to sufficiently
put public on notice.
If it was the intention of the Senate for its present rules on
legislative inquiries to be effective even in the next Congress, it
could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed
that not all orders issued or proceedings conducted pursuant to
the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and
void, considering that the rationale for the publication is to
protect the rights of witnesses as expressed in Section 21, Article
VI of the Constitution. Sans such violation, orders and
proceedings are considered valid and effective.
Respondent Committees last argument is that their issuance of
the contempt order is not precipitate or arbitrary. Taking into
account the totality of circumstances, we find no merit in their
argument.
As we have stressed before, petitioner is not an unwilling
witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had
any other questions for him. He repeatedly manifested his
willingness to attend subsequent hearings and respond to new
matters. His only request was that he be furnished a copy of the
new questions in advance to enable him to adequately prepare
as a resource person. He did not attend the November 20, 2007
hearing because Executive Secretary Ermita requested
respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an
executive official under the direct control and supervision of the
Chief Executive. Why punish petitioner for contempt when he
was merely directed by his superior? Besides, save for the three
(3) questions, he was very cooperative during the September 26,
2007 hearing.
On the part of respondent Committees, this Court observes their
haste and impatience. Instead of ruling on Executive Secretary
Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could
have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration.
After all, he is not just an ordinary witness; he is a high- ranking
official in a co-equal branch of government. He is an alter ego of
the President. The same haste and impatience marked the

EVIDENCE

issuance of the contempt order, despite the absence of

majority of the members of the respondent Committees,
their subsequent disregard of petitioners motion
reconsideration alleging the pendency of his petition
certiorari before this Court.

the
and
for
for

On a concluding note, we are not unmindful of the fact that the

Executive and the Legislature are political branches of
government. In a free and democratic society, the interests of
these branches inevitably clash, but each must treat the other
with official courtesy and respect. This Court wholeheartedly
concurs with the proposition that it is imperative for the
continued health of our democratic institutions that we preserve
the constitutionally mandated checks and balances among the
different branches of government.
In the present case, it is respondent Committees contention that
their determination on the validity of executive privilege should
be binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be
inquired into by this Court supposedly in accordance with the
principle of respect between co-equal branches of government.
Interestingly, it is a courtesy that they appear to be unwilling to
extend to the Executive (on the matter of executive privilege) or
this Court (on the matter of judicial review). It moves this Court
to wonder: In respondent Committees paradigm of checks and
balances, what are the checks to the Legislatures allencompassing, awesome power of investigation? It is a power,
like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees wellintentioned efforts to ferret out corruption, even in the highest
echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and
granted instead to the other branches of government.
There is no question that any story of government malfeasance
deserves an inquiry into its veracity. As respondent Committees
contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a
"search for truth" by the general public, the religious community
and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power.
However, the best venue for this noble undertaking is not in the
political branches of government. The customary partisanship
and the absence of generally accepted rules on evidence are too
great an obstacle in arriving at the truth or achieving justice that
meets the test of the constitutional guarantee of due process of
law. We believe the people deserve a more exacting "search for
truth" than the process here in question, if that is its objective.
WHEREFORE,
respondent
Committees
Motion
Reconsideration dated April 8, 2008 is hereby DENIED.

for

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario,
Velasco, Jr., Nachura, Reyes, Brion, JJ., concur

AGUSTIN, E.P. | 62

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 112443

January 25, 2002

TERESITA P. BORDALBA, petitioner,

vs.
COURT OF APPEALS, HEIRS OF NICANOR JAYME, namely,
CANDIDA FLORES, EMANNUEL JAYME, DINA JAYME
DEJORAS, EVELIA JAYME, and GESILA JAYME; AND
HEIRS OF ASUNCION JAYME-BACLAY, namely, ANGELO
JAYME-BACLAY, CARMEN JAYME-DACLAN and ELNORA
JAYME BACLAY, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court
seeking to set aside the October 20, 1992 Decision of the Court
of Appeals1 in CA-G.R. CV No. 27419, which affirmed with
modification the Decision2 of the Regional Trial Court of
Mandaue, Branch 28, in Civil Case No. MAN-386.
The instant controversy stemmed from Lot No. 1242 (Lot No.
799-C) with an area of 1,853 square meters and located at
Barrio Looc, Mandaue City. The subject lot is part of a parcel of
land situated on the corner of Mabini and Plaridel Streets in
Mandaue City, and originally owned by the late spouses
Carmeno Jayme and Margarita Espina de Jayme. In 1947, an
extra-judicial partition,3 written in the Spanish language was
executed, describing said parcel of land as
2. otra parcela de terreno urbano en el barrio de
Look, Mandawe, Cebu, que linda al N. con la Calle
Mabini y propiodades de F. Jayme; al E. linda con
propiodades de Fernando Antigua; al S. linda con
propiodades de Lucas y Victoriano Jayme, y al O.
linda con la Calle Plaridel. La propiodad descrita esta
avaluada, con todas sus mejoras, en la cantidad de
MIL Y CINCUENTA PESOS ----------------------------------------------- P1,050.00.4
and disposing, inter alia, the same parcel of land as follows:
1) 1/3 in favor of - (a) their grandchild Nicanor
Jayme, the deceased spouse of private respondent
Candida Flores and the father of private respondents
Emmanuel, Dina, Evelia and Gesila, all surnamed
Jayme; and (b) their grandchild Asuncion JaymeBaclay, whose heirs are private respondents Agelio
Baclay, Elnora Baclay and Carmen Jayme-Daclan;
2) 1/3 to their daughter Elena Jayme Vda. de Perez,
mother of petitioner Teresita P. Bordalba; and

an amended application for the registration5 of the lot described

with the following boundaries:
N - Fruelana Jayme & Road
S - Felicitas de Latonio
E - Agustin de Jayme
W - Porfirio Jayme, Lot No. 1 and Vivencio Abellana
Elena Jayme Vda. de Perez alleged that the lot sought to be
registered was originally a part of a land owned by her late
parents, the spouses Carmeno Jayme and Margarita Espina de
Jayme; and that 1/3 of said land was adjudicated to her in an
extra-judicial partition. She further stated that a portion of the
lot for which title is applied for is occupied by Nicanor Jayme
with her permission.
Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed
their opposition6 contending that said application included the
1/3 portion inherited by them in the 1947 extra-judicial partition.
The case was, however, dismissed for lack of interest of the
parties.
Subsequently, petitioner filed with the Bureau of Lands of Cebu
City an application7 dated January 10, 1979, seeking the
issuance of a Free Patent over the same lot subject of the
aborted application of her mother, Elena Jayme, now known as
Lot No. 1242 (799-C), described as follows:
North: Froilan Jayme and Road
East: Agustin Jayme
South: Alfredo Alivio and Spouses Hilario Gandecila
West: Hilario Gandecila Porferio Jayme and Heirs of
Vevencio Abellanosa8
On April 16, 1980, petitioner was successfully granted Free
Patent No. (VII-I) 11421 and Original Certificate of Title No. 0571 (FP) over said lot.9 Thereafter, petitioner caused the
subdivision and titling of Lot No. 1242 (799-C), into 6 lots,10 as
well as the disposition of two parcels thereof, thus:
1) Lot No. 1242-A with an area of 581 square meters
covered by Transfer Certificate of Title No. 22771 (FP)
in the name of spouses Genaro U. Cabahug and Rita
Capala, to whom petitioner sold said lot;
2) Lot No. 1242-B with an area of 420 square meters
covered by TCT No. 22772 in the name of Teresita P.
Bordalba, and which the latter mortgaged with the
Rural Bank of Mandaue;

3) 1/3 to an unidentified party.

Built on the land adjudicated to the heirs of the spouses is
Nicanor Jaymes house, which his family occupied since 1945.

3) Lot No. 1242-C with an area of 210 square meters

covered by TCT 22773 in the name of Teresita P.
Bordalba;

Sometime in July 1964, Elena Jayme Vda. de Perez, petitioners

mother, filed with the Regional Trial Court of Cebu, Branch IV,

EVIDENCE

AGUSTIN, E.P. | 63

4) Lot No. 1242-D with an area of 210 square meters

covered by TCT 22774 in the name of Teresita
Bordalba;

subdivision of Lot No. 1242 except TCT NO. 22771

(FP) as null and void and ordering the Register of
Deeds of Mandaue City to cancel them;

5) Lot No. 1242-E with an area of 216 square meters

covered by TCT 22775 in the name of Teresita P.
Bordalba;

2) declaring spouses defendants Genaro U. Cabahug

and Rita Capala as buyers in good faith and are the
legal and rightful owners of Lot No. 1242-A as
described in TCT No. 22771 (FP);

6) Lot No. 1242-F with an area of 216 square meters

and covered by TCT No. 22776 in the name of
Teresita P. Bordalba.
Upon learning of the issuance in favor of petitioner of the
aforesaid Free Patent and Original Certificate of Title over Lot
No. 1242, as well as the conveyances made by petitioner
involving the lot subject of the controversy, private respondents
filed with the Regional Trial Court of Mandaue City, Branch 28,
the instant complaint against petitioner Teresita Bordalba,
spouses Genaro U. Cabahug, and Rita Capala, Rural Bank of
Mandaue and the Director of the Bureau of Lands.
In the said complaint, private respondents prayed that Free
Patent No. (VII-I) 11421 and OCT No. 0-571 (FP), as well as
TCT Nos. 22771-22776 be declared void and ordered cancelled.
Private respondents also prayed that they be adjudged owners
of Lot No. 1242 (799-C), and that spouses Genaro V. Cabahug
and Rita Capala as well as the Rural Bank of Mandaue be
declared buyers and mortgagee in bad faith, respectively. In
addition, they asked the court to award them actual,
compensatory, and moral damages plus attorneys fees in the
amount of P20,000.00.
Petitioner, on the other hand, averred that Lot No. 1242 (799-C)
was acquired by her through purchase from her mother,11 who
was in possession of the lot in the concept of an owner since
1947. In her answer, petitioner traced her mothers ownership of
the lot partly from the 1947 deed of extra-judicial partition
presented by private respondents,12 and claimed that Nicanor
Jayme, and Candida Flores occupied a portion of Lot No. 1242
(799-C) by mere tolerance of her mother. On cross-examination,
petitioner admitted that the properties of the late Carmeno
Jayme and Margarita Espina de Jayme were partitioned by their
heirs in 1947, but claimed that she was not aware of the
existence of said Deed of Extra-judicial Partition. She, however,
identified one of the signatures in the said Deed to be the
signature of her mother.13
On May 28, 1990, the trial court, finding that fraud was
employed by petitioner in obtaining Free Patent No. (VII-I)
11421 and OCT No. 0-571 (FP), declared said patent and title
void and ordered its cancellation. However, it declared that
spouses Genaro U. Cabahug and Rita Capala as well as the Rural
Bank of Mandaue are purchasers and mortgagee in good faith,
respectively; and consequently upheld as valid the sale of Lot
No. 1242-A covered by Transfer Certificate of Title No. 22771
(FP) to spouses Genaro U. Cabahug and Rita Capala, and the
mortgage of Lot No. 1242-B covered by TCT No. 22772 in favor
of the Rural Bank of Mandaue. The dispositive portion of the
decision reads:
WHEREFORE,
foregoing
premises
considered,
Decision is hereby rendered in favor of the plaintiffs
by:
1) declaring Free Patent No. (VII-I) 11421 as well as
the Original Certificate of Title No. 0-57 (FP) and all
subsequent certificates of title as a result of the

EVIDENCE

3) declaring the Rural Bank of Mandaue, Inc. as

mortgagee in good faith and the mortgage lien in its
favor be carried over to and be annotated in the new
certificate of title to be issued under the names of the
plaintiffs;
4) declaring the plaintiffs as the legal and rightful
owners of Lot 1242 and ordering the issuance of the
certificate of title in their names;
5) dismissing the claims of the defendant spouses
Cabahug and Capala and the defendant Rural Bank of
Mandaue, Inc. for lack of merit;
6) ordering the defendant Teresita Bordalba to pay
plaintiffs the following amounts:
(a) P5,000.00 as actual and litigation
expenses;
(b) P20,000.00 as attorneys fees, and,
7) ordering defendant Bordalba to pay the costs.
SO ORDERED.14
Both petitioner Teresita Bordalba and private respondents
appealed to the Court of Appeals, which affirmed with
modification the decision of the trial court. It ruled that since
private respondents are entitled only to 1/3 portion of Lot No.
1242 (799-C), petitioner should be ordered to reconvey 1/3 of
Lot No. 1242 (799-C) to private respondents. The decretal
portion of the respondent court's decision states:
WHEREFORE, the challenged decision is MODIFIED to
order the reconveyance of one-third of the subject
land in favor of the plaintiff-appellees in lieu of the
cancellation of the Certificates of Title issued and
their declaration as the owners of Lot No. 1242 in its
entirety. The rest is AFFIRMED in toto.
SO ORDERED.15
Thus, petitioner filed the instant petition, assailing the decision
of the Court of Appeals. Petitioner contends that the testimonies
given by the witnesses for private respondents which touched on
matters occurring prior to the death of her mother should not
have been admitted by the trial court, as the same violated the
dead mans statute. Likewise, petitioner questions the right of
private respondents to inherit from the late Nicanor Jayme and
Asuncion Jayme-Baclay, as well as the identity between the
disputed lot and the parcel of land adjudicated in the Deed of
Extra-judicial Partition.

AGUSTIN, E.P. | 64

The contentions are without merit. It is doctrinal that findings of

facts of the Court of Appeals upholding those of the trial court
are binding upon this Court. While there are exceptions to this
rule, petitioner has not convinced us that this case falls under
one of them.16
The Court sees no reason to deviate from the findings of the trial
court that petitioner resorted to fraud and misrepresentation in
obtaining a free patent and title over the lot under scrutiny. The
Court of Appeals correctly pointed out that misrepresentation
tainted petitioners application, insofar as her declaration that
the land applied for was not occupied or claimed by any other
person. Her declaration is belied by the extra-judicial partition
which she acknowledged, her mothers aborted attempt to have
the lot registered, private respondents predecessors-in-interests
opposition thereto, and by the occupancy of a portion of the said
lot by Nicanor Jayme and his family since 1945.
It is a settled rule that the Land Registration Act protects only
holders of title in good faith, and does not permit its provision to
be used as a shield for the commission of fraud, or as a means
to enrich oneself at the expense of others.17
As to the alleged violation of the dead mans statute,18 suffice it
to state that said rule finds no application in the present case.
The dead mans statute does not operate to close the mouth of
a witness as to any matter of fact coming to his knowledge in
any other way than through personal dealings with the deceased
person, or communication made by the deceased to the
witness.19
Since the claim of private respondents and the testimony of their
witnesses in the present case is based, inter alia, on the 1947
Deed of Extra-judicial Partition and other documents, and not on
dealings and communications with the deceased, the questioned
testimonies were properly admitted by the trial court.
Likewise untenable is the claim of petitioner that private
respondents are not legal heirs of Nicanor Jayme and Asuncion
Jayme-Baclay. Other than their bare allegations to dispute their
heirship, no hard evidence was presented by them to
substantiate their allegations. Besides, in order that an heir may
assert his right to the property of a deceased, no previous
judicial declaration of heirship is necessary.20
Anent the issue of identity, the disparity in the boundaries of Lot
No. 1242 (799-C) vis--vis the boundaries of the lot referred to
in the 1947 Deed of Extra-judicial Partition can be explained by
the fact that Lot No. 1242 (799-C) is only a portion of the entire
parcel of land described in the Deed, a 1/3 pro-indiviso portion
of which was adjudicated each to, first, petitioners mother,
second, to the predecessors-in-interest of private respondents,
and third, to an unidentified party. Logically therefore, their
boundaries will not be similar. At any rate, the records show that
the parcel of land adjudicated to the predecessors-in-interest of
the parties herein was the lot found on the corner of Plaridel and
Mabini Streets in Looc, Mandaue City. As admitted further by
both parties, Lot No. 1242 (799-C) was part of the land allotted
to their predecessors-in-interest in the 1947 Deed of Extrajudicial Partition. Moreover, petitioners mother acknowledged in
her application for registration of Lot No. 1242 that the Deed of
Extra-judicial Partition was the source of her claim over the lot
sought to be registered. She further admitted that the lot now
known as Lot No. 1242 (799-C) was part of the parcel of land
inherited by her and her co-heirs, to the extent of 1/3 share
each. Under Section 31, Rule 130, of the Revised Rules on
Evidence, where one derives title to property from another, the

EVIDENCE

act, declaration, or omission of the latter, while holding the title,

in relation to the property, is evidence against the former.
Considering that Lot No.1242 (799-C) is part of the parcel of
land over which private respondents predecessors-in-interest is
entitled to 1/3 pro-indiviso share, which was disregarded by
petitioner when she secured a Free Patent and Original
Certificate of Title in her name, to the exclusion of private
respondents predecessors-in-interest, the trial court and the
Court of Appeals, therefore, did not err in upholding the right of
private respondents as co-owners, and ordering the petitioner to
reconvey 1/3 of the lot in question to them.
Notwithstanding the foregoing, however, the Court is unable to
determine what part of Lot No. 1242 (799-C) is within the
boundaries of the parcel of land inherited in the 1947 Deed of
Extra-judicial Partition by the predecessors-in-interest of the
parties herein. This is so because private respondents did not
show the extent of the said land mentioned in the 1947 Deed of
Extra-judicial Partition in relation to Lot No. 1242 (799-C). While
they presented the boundaries of the parcel of land adjudicated
in the Deed, to wit:
North: Calle Mabini y propiodades de F. Jayme
East: Propiodades de Fernando Antigua
South: Propiodades de Lucas y Victoriano Jayme
West: Calle Plaridel
they did not, however, show where these boundaries are found
in relation to the boundaries of Lot No. 1242 (799-C). Absent a
fixed boundary of the parcel of land adjudicated in the Deed,
which they claim Lot No. 1242 (799-C) is a part of, the Court
cannot determine the extent to which the lot now known as Lot
No. 1242 (799-C) is included. Admittedly, the north boundary of
Lot No. 1242 (799-C) (Property of Froilan Jaime and Mabini
Street) is similar to the north boundary of the land mentioned in
the Deed. With only one reference point, however, the south,
east and west boundaries of Lot No. 1242 (799-C) cannot be
established with certainty to be within the parcel of land
described in the Deed of Extra-judicial Partition.
In Beo v. Court of Appeals,21 the Court held that in order that an
action for recovery of possession may prosper, it is indispensable
that he who brings the action must fully prove not only his
ownership but also the identity of the property claimed by
describing the location, area and boundaries thereof. So that
when the record does not show that the land subject matter of
the action has been exactly determined, the action cannot
prosper, inasmuch as the plaintiff's ownership rights in the land
claimed do not appear satisfactorily and conclusively proven at
the trial.
In the present case, while it is true that private respondents
were not able to show the extent of their 1/3 pro indiviso right
over Lot No. 1242 (799-C), they have nevertheless established
their claim over the said lot. Hence, in line with our ruling in the
case of Laluan v. Malpaya,22 the prudent recourse would be to
remand the case to the lower court for a new trial.
WHEREFORE, in view of all the foregoing, the October 20,
1992 Decision of the Court of Appeals in CA-G.R. CV No. 27419,
and the May 28, 1990 Decision of the Regional Trial Court of
Mandaue City, Branch 28, in Civil Case No. MAN-386, insofar as

AGUSTIN, E.P. | 65

it relates to the recognition of the 1/3 share of private

respondents over Lot No. 1242 (799-C) is AFFIRMED. The case
is remanded to the trial court in order to determine what part of
Lot No. 1242 (799-C) is included in the parcel of land
adjudicated in the 1947 Deed of Extrajudicial Partition to the
predecessors-in-interest of the parties herein.
SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ.,

concur.

EVIDENCE

AGUSTIN, E.P. | 66

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 117740

October 30, 1998

CAROLINA ABAD GONZALES, petitioner,

vs.
COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H.
ABAD, MARIAN H. ABAD and ROSEMARIE S. ABAD,
respondents.
ROMERO, J.:
Before us is a petition for certiorari to annul the decision of the
Court of Appeals dated October 19, 1994, finding private
respondents as the heirs of Ricardo de Mesa Abad as well as
annulling petitioners' extra-judicial partition of the decedent's
estate.
The facts are as follows:
On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores
de Mesa Abad and Cesar de Mesa Tioseco sought the settlement
of the intestate estate of their brother, Ricardo de Mesa Abad,
before the then Court of First Instance of Manila. In their
petition, docketed as Special Proceedings No. 86792, petitioners
claimed that they were the only heirs of Ricardo de Mesa Abad,
as the latter allegedly died a bachelor, leaving no descendants or
ascendants, whether legitimate or illegitimate. On May 9, 1972,
petitioners amended their petition by alleging that the real
properties covered by TCT Nos. 13530, 53671, and 64021, listed
therein as belonging to the decedent, were actually only
administered by the latter, the true owner being their late
mother, Lucila de Mesa. On June 16, 1972, the trial court
appointed Cesar de Mesa Tioseco as administrator of the
intestate estate of Ricardo de Mesa Abad.
Meanwhile, on May 2, 1972, petitioners executed an extrajudicial
settlement of the estate of their late mother Lucila de Mesa,
copying therein the technical descriptions of the lots covered by
TCT Nos. 13530, 53671, and 64021. By virtue thereof, the
Register of Deeds cancelled the above-mentioned TCTs in the
name of Ricardo Abad and issued, in lieu thereof, TCT No.
108482 in the name of Dolores de Mesa Abad, TCT No. 108483
in the name of Cesar de Mesa Tioseco and TCT No. 108484 in
the name of Carolina Abad Gonzales. The three promptly
executed real estate mortgages over the real properties in favor
of Mrs. Josefina Viola, the wife of their counsel, Escolastico Viola.
On July 7, 1972, private respondents Honoria Empaynado,
Cecilia Abad Empaynado, and Marian Abad Empaynado filed a
motion to set aside proceedings and for leave to file opposition
in Special Proceedings No. 86792. In their motion, they alleged
that Honoria Empaynado had been the common-law wife of
Ricardo Abad for twenty-seven years before his death, or from
1943 to 1971, and that during this period, their union had
produced two children, Cecilia Abad Empaynado and Marian
Abad Empaynado. Private respondents also disclosed the
existence of Rosemarie Abad, a child allegedly fathered by
Ricardo Abad with another woman, Dolores Saracho. As the law
awards the entire estate to the surviving children to the
exclusion of collateral relatives, private respondents charged
petitioners with deliberately concealing the existence of said

EVIDENCE

three children in other to deprive the latter of their rights to the

estate of Ricardo Abad.
On July 24, 1972, private respondents filed a motion to withdraw
their first motion and, in lieu thereof, filed a motion for
reconsideration praying that Cecilia Abad be appointed
administrator instead of Cesar Tioseco. The trial court denied
private respondents' motion to remove Cesar Tioseco as
administrator, but allowed them to appear in the proceedings to
establish their right as alleged heirs of Ricardo Abad.
Private respondents later discovered that petitioners had
managed to cancel TCT Nos. 13530, 53671, and 64021 through
the stratagem of extra-judicially partitioning their mother's
estate. Accordingly, on October 4, 1973, private respondents
filed a motion to annul the extra-judicial partition executed by
petitioners, as well as TCT Nos. 108482, 108483, and 108484,
the Torrens titles issued in substitution of TCT Nos. 13530,
53671, and 64021 and the real estate mortgages constituted by
the latter on said properties.
After due trial, the lower court, on November 2, 1973, rendered
the following judgment:
WHEREFORE, judgment is hereby rendered as follows:
(1) Declaring Cecilia E. Abad, Marian E. Abad and
Rosemarie S. Abad acknowledged natural children of
the deceased Ricardo M. Abad;
(2) Declaring said acknowledged natural children,
namely: Cecilia E. Abad, Marian E. Abad, and
Rosemarie S. Abad the only surviving legal heirs of
the deceased Ricardo M. Abad and as such entitled to
succeed to the entire estate of said deceased, subject
to the rights of Honoria Empaynado, if any, as coowner of any of the property of said estate that may
have been acquired thru her joint efforts with the
deceased during the period they lived together as
husband and wife;
(3) Denying the petition of decedent's collateral
relatives, namely: Dolores M. Abad, Cesar M. Tioseco
and Carolina M. Abad to be declared as heirs and
excluding
them
from
participating
in
the
administration and settlement of the estate of Ricardo
Abad;
(4) Appointing Honoria Empaynado as the
administratrix in this intestacy with a bond of THIRTY
THOUSAND (P30,000.00) PESOS; and
(5) Ordering Cesar Tioseco to surrender to the new
administratrix all property or properties, monies and
such papers that came into his possession by virtue of
his appointment as administrator, which appointment
is hereby revoked. 1
The trial court, likewise, found in favor of private respondents
with respect to the latter's motion for annulment of certain
documents. On November 19, 1974, it rendered the following
judgment:

AGUSTIN, E.P. | 67

WHEREFORE, this Court finds oppositors' Motion for

Annulment, dated October 4, 1973 to be meritorious and
accordingly
1. Declares that the six (6) parcels of land
described in TCT Nos. 13530, 53671 and
64021, all registered in the name of
Ricardo Abad, as replaced by TCT No.
108482 in the name of Dolores de Mesa
Abad, TCT No. 108483 in the name of
Cesar de Mesa Tioseco and TCT No.
108484 in the name of Carolina de Mesa
Abad-Gonzales, and the residential house
situated at 2432 Opalo Street, San Andres
Subdivision, Manila, to be the properties of
the late Ricardo Abad;
2. Declares the deed of Extra Judicial
Settlement of the Estate of the Deceased
Lucila de Mesa, executed on May 2, 1972
(Doc. No. 445, Page No. 86, Book No. VII,
Series of 1972 of the notarial book of
Faustino S. Cruz) by petitioners and
Carolina de Mesa Abad-Gonzales, to be
inexistent and void from the beginning;
3. Declares as null and void the
cancellation of TCT Nos. 13530, 53671 and
64021 and issuance in lieu thereof, of TCT
Nos. 108482, 108483 and 108484;
4. Orders the Register of Deeds of Manila
to cancel TCT No. 108482 of Dolores de
Mesa Abad; TCT No. 108483 of Cesar de
Mesa Tioseco; and TCT No. 108484 of
Carolina de Mesa Abad-Gonzales and in
lieu thereof, restore and/or issue the
corresponding certificate of title in the
name of Ricardo Abad;
5. Declares as inexistent and void from the
beginning the three (3) real estate
mortgages executed on July 7, 1972
executed by (a) petitioner Dolores de Mesa
Abad, identified as Doc. No. 145, Page No.
30, Book No. XX, Series of 1972, (b)
petitioner Cesar de Mesa Tioseco,
identified as Doc. No. 146, Page 31, Book
No. XX, Series of 1972; and (c) Carolina de
Mesa Abad-Gonzales, identified as Doe.
No. 144, Page No. 30, Book No. XX, Series
of 1972, all of the notarial book of Ricardo
P. Yap of Manila, in favor of Mrs. Josefina
C. Viola, and orders the Register of Deeds
of Manila to cancel the registration or
annotation thereof from the back of the
torrens title of Ricardo Abad; and
6. Orders Atty. Escolastico R. Viola and his
law associate and wife, Josefina C. Viola,
to surrender to the new administratrix,
Honoria Empaynado, TCT Nos. 108482,
108483, and 108484 within five (5) days
from receipt hereof.

Petitioners' motion for reconsideration of the November 2, 1973

decision was denied by the trial court. Their notice of appeal was
likewise denied on the ground that the same had been filed out
of time. Because of this ruling, petitioners, instituted certiorari
and mandamus proceedings with the Court of Appeals, docketed
there as C.A.-G.R. No. SP-03268-R. On November 2, 1974, the
appellate court granted petitioners' petition and ordered the
lower court to give due course to the latter's appeal. The trial
court, however, again dismissed petitioners' appeal on the
ground that their record on appeal was filed out of time.
Likewise, on January 4, 1975, petitioners filed their notice of
appeal of the November 19, 1974 ruling of the trial court. On
March 21, 1975, this appeal was similarly denied on the ground
that it had been filed out of time.
Due to the dismissal of their two appeals, petitioners again
instituted certiorari and mandamus proceedings with the Court
of Appeals, docketed therein as C.A.-G.R. No. SP-04352. The
appellate court affirmed the dismissal of the two appeals,
prompting petitioners to appeal to the Supreme Court. On July
9, 1985, this Court directed the trial court to give due course to
petitioners' appeal from the order of November 2, 1973 declaring
private respondents heirs of the deceased Ricardo Abad, and the
order dated November 19, 1974, annulling certain documents
pertaining to the intestate estate of deceased.
The two appeals were accordingly elevated by the trial court to
the appellate court. On October 19, 1994, the Court of Appeals
rendered judgment as follows:
WHEREFORE, all the foregoing considered, the instant
appeal is DENIED for lack of merit. The orders of the
court a quo in SP No. 86792, to wit:
1. Order dated November 2, 1973,
declaring in substance that Cecilia, Marian
and Rosemarie, all surnamed Abad as the
acknowledged natural children and the
only surviving heirs of the deceased
Ricardo Abad;
2. Order dated November 19, 1974,
declaring in substance that the six (6)
parcels of land described in TCT Nos.
13530, 53671 and 64021 are the
properties of Ricardo Abad; that the extrajudicial partition of the estate of the
deceased Lucila de Mesa executed on May
2, 1972 is inexistent and void from the
beginning, the cancellation of the
aforementioned TCTs is null and void; the
Register of Deeds be ordered to restore
and/or issue the corresponding Certificates
of Title in the name of Ricardo Abad; and
3. Order dated March 21, 1975 denying the
appeal of Dolores de Mesa Abad and Cesar
de Mesa Tioseco from the latter Order, for
being filed out of time, are all AFFIRMED in
toto. With costs against petitionerappellants.
SO ORDERED.

SO ORDERED.

EVIDENCE

AGUSTIN, E.P. | 68

Petitioners now seek to annul the foregoing judgment on the

following grounds:
I. THE COURT OF APPEALS AND THE
TRIAL COURT GRAVELY ERRED IN
HOLDING THAT RESPONDENTS CECILIA E.
ABAD, MARIAN E. ABAD AND ROSEMARIE
S. ABAD ARE THE ACKNOWLEDGED
NATURAL CHILDREN OF THE DECEASED
RICARDO DE MESA ABAD.
II. PETITIONERS ARE ENTITLED TO THE
SUBJECT ESTATE WHETHER THE SAME IS
OWNED BY THE DECEASED RICARDO DE
MESA ABAD OR BY LUCILA DE MESA, THE
MOTHER OF PETITIONERS AND RICARDO
DE MESA ABAD.
We are not persuaded.
Petitioners, in contesting Cecilia, Marian and Rosemarie Abad's
filiation, submit the startling theory that the husband of Honoria
Empaynado, Jose Libunao, was still alive when Cecilia and
Marian Abad were born in 1948 and 1954, respectively.
It is undisputed that prior to her relationship with Ricardo Abad,
Honoria Empaynado was married to Jose Libunao, their union
having produced three children, Angelita, Cesar, and Maria Nina,
prior to the birth of Cecilia and Marian. But while private
respondents claim that Jose Libunao died in 1943, petitioners
claim that the latter died sometime in 1971.
The date of Jose Libunao's death is important, for if he was still
alive in 1971, and given that he was legally married to Honoria
Empaynado, the presumption would be that Cecilia and Marian
are not Ricardo Abad's children with the latter, but of Jose
Libunao and Honoria Empaynado. Article 256, the applicable
provision of the Civil Code, provides:
Art. 256. The child shall be presumed
legitimate, although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress. 4
To bolster their theory, petitioners presented in evidence the
application for enrolment at Mapua Institute of Technology of
Angelita Libunao, accomplished in 1956, which states:
Father's Name: Jose
Libunao
Occupation: engineer
(mining)
Mother's
Name:
Honoria Empaynado 5
as well as Cesar Libunao's 1958 application for
enrolment at the Mapua Institute of Technology,
which states:
Father's Name: Jose
Libunao

EVIDENCE

Occupation: none
Mother's
Name:
Honoria Empaynado 6
Petitioners claim that had Jose Libunao been dead during the
time when said applications were accomplished, the enrolment
forms of his children would have stated so. These not being the
case, they conclude that Jose Libunao must have still been alive
in 1956 and 1958.
Additionally, petitioners presented the joint affidavit of Juan
Quiambao and Alejandro Ramos 7 stating that to their
knowledge Jose Libunao had died in 1971, leaving as his widow,
Honoria Empaynado, and that the former had been interred at
the Loyola Memorial Park.
Lastly, petitioners presented the affidavit of Dr. Pedro Arenas, 8
Ricardo Abad's physician, declaring that in 1935, he had
examined Ricardo Abad and found him to be infected with
gonorrhea, and that the latter had become sterile as a
consequence thereof.
With these pieces of evidence, petitioners claim that Cecilia and
Marian Abad are not the illegitimate children of Ricardo Abad,
but rather the legitimate children of the spouses Jose Libunao
and Honoria Empaynado.
At the outset, it must be noted that petitioners are disputing the
veracity of the trial court's finding of facts. It is a fundamental
and settled rule that factual findings of the trial court, adopted
and confirmed by the Court of Appeals, are final and conclusive
and may not be reviewed on appeal. 9 Petitioners, however,
argue that factual findings of the Court of Appeals are not
binding on this Court when there appears in the record of the
case some fact or circumstance of weight and influence which
has been overlooked, or the significance of which has been
misinterpreted, that if considered, would affect the result of the
case. 10
This Court finds no justifiable reason to apply this exception to
the case at bar.
First, the evidence presented by petitioners to prove that Jose
Libunao died in 1971 are, to say the least, far from conclusive.
Failure to indicate on an enrolment form that one's parent is
"deceased" is not necessarily proof that said parent was still
living during the time said form was being accomplished.
Furthermore, the joint affidavit of Juan Quiambao and Alejandro
Ramos as to the supposed death of Jose Libunao in 1971 is not
competent evidence to prove the latter's death at that time,
being merely secondary evidence thereof. Jose Libunao's death
certificate would have been the best evidence as to when the
latter died. Petitioners have, however, inexplicably failed to
present the same, although there is no showing that said death
certificate has been lost or destroyed as to be unavailable as
proof of Jose Libunao's death. More telling, while the records of
Loyola Memorial Park show that a certain Jose Bautista Libunao
was indeed buried there in 1971, this person appears to be
different from Honoria Empaynado's first husband, the latter's
name being Jose Santos Libunao. Even the name of the wife is
different. Jose Bautista Libunao's wife is listed as Josefa Reyes
while the wife of Jose Santos Libunao was Honoria Empaynado.
As to Dr. Arenas' affidavit, the same was objected to by private
respondents as being privileged communication under Section 24

AGUSTIN, E.P. | 69

(c), Rule 130 of the Rules of Court. 11 The rule on confidential

communications between physician and patient requires that: a)
the action in which the advice or treatment given or any
information is to be used is a civil case; b) the relation of
physician and patient existed between the person claiming the
privilege or his legal representative and the physician; c) the
advice or treatment given by him or any information was
acquired by the physician while professionally attending the
patient; d) the information was necessary for the performance of
his professional duty; and e) the disclosure of the information
would tend to blacken the reputation of the patient. 12
Petitioners do not dispute that the affidavit meets the first four
requisites. They assert, however, that the finding as to Ricardo
Abad's "sterility" does not blacken the character of the deceased.
Petitioners conveniently forget that Ricardo Abad's "sterility"
arose when the latter contracted gonorrhea, a fact which most
assuredly blackens his reputation. In fact, given that society
holds virility at a premium, sterility alone, without the attendant
embarrassment of contracting a sexually-transmitted disease,
would be sufficient to blacken the reputation of any patient. We
thus hold the affidavit inadmissible in evidence. And the same
remains inadmissible in evidence, notwithstanding the death of
Ricardo Abad. As stated by the trial court:
In the case of Westover vs. Aetna Life
Insurance Company, 99 N.Y. 59, it was
pointed out that: "The privilege of secrecy
is not abolished or terminated because of
death as stated in established precedents.
It is an established rule that the purpose of
the law would be thwarted and the policy
intended to be promoted thereby would be
defeated, if death removed the seal of
secrecy, from the communications and
disclosures which a patient should make to
his physician. After one has gone to his
grave, the living are not permitted to
impair his name and disgrace his memory
by dragging to light communications and
disclosures made under the seal of the
statute.
Given the above disquisition, it is clearly apparent that
petitioners have failed to establish their claim by the quantum of
evidence required by law. On the other hand, the evidence
presented by private respondents overwhelmingly prove that
they are the acknowledged natural children of Ricardo Abad. We
quote with approval the trial court's decision, thus:
In his individual statements of income and
assets for the calendar years 1958 and
1970, and in all his individual income tax
returns for the years 1964, 1965, 1967,
1968, 1969 and 1970, he has declared
therein as his legitimate wife, Honoria
Empaynado; and as his legitimate
dependent children, Cecilia, Marian (except
in Exh. 12) and Rosemarie Abad (Exhs. 12
to 19; TSN, February 26, 1973, pp. 33-44).
xxx xxx xxx
In December 1959, Ricardo Abad insured
his daughters Cecilia, then eleven (11)
years old, and Marian, then (5) years old,
on [a] twenty (20) year-endowment plan
with the Insular Life Assurance Co., Ltd.

EVIDENCE

and paid for their premiums (Exh. 34 and

34-A; 34-B to C; 35, 35-A to D; TSN,
February 27, 1973, pp. 7-20).
In 1966, he and his daughter Cecilia Abad
opened a trust fund account of
P100,000,00 with the People's Bank and
Trust Company which was renewed until
(sic) 1971, payable to either of them in the
event of death (Exhs. 36-A; 36-E). On
January 5, 1971, Ricardo Abad opened a
trust fund of P100,000.00 with the same
bank, payable to his daughter Marian (Exh.
37-A). On January 4, 1971, Ricardo Abad
and his sister Dolores Abad had (sic)
agreed to stipulate in their PBTC Trust
Agreement that the 9% income of their
P100,000.00 trust fund shall (sic) be paid
monthly to the account reserved for
Cecilia, under PBTC Savings Account No.
49053 in the name of Ricardo Abad and/or
Cecilia Abad (Exh. 38) where the income of
the trust fund intended for Cecilia was also
deposited monthly (TSN, February 27,
1973, pp. 21-36). Ricardo Abad had also
deposited (money) with the Monte de
Piedad and Savings Bank in the name of
his daughter Marian, represented by him,
as father, under Savings Account 17348
which has (sic) a balance of P34,812.28 as
of June 30, 1972. (Exh. 60-B). . .
With the finding that private respondents are the illegitimate
children of Ricardo Abad, petitioners are precluded from
inheriting the estate of their brother. The applicable provisions
are:
Art. 988. In the absence of legitimate
descendants or ascendants, the illegitimate

children shall succeed to the entire estate

of the deceased.

Art. 1003. If there are no . . . illegitimate

children, or a surviving spouse, the
collateral relatives shall succeed to the
entire estate of the deceased in
accordance with the following articles.
(Emphasis supplied).
As to petitioners' claim that the properties m the name of
Ricardo Abad actually belong to their mother Lucila de Mesa,
both the trial court and the appellate court ruled that the
evidence presented by private respondents proved that said
properties in truth belong to Ricardo Abad. As stated earlier, the
findings of fact by the trial court are entitled to great weight and
should not be disturbed on appeal, it being in a better position
to examine the real evidence, as well as to observe the
demeanor of the witnesses while testifying in the case. 13 In
fact, petitioners seem to accept this conclusion, their contention
being that they are entitled to the subject estate whether the
same is owned by Ricardo Abad or by Lucila de Mesa.
Digressing from the main issue, in its decision dated October 19,
1994, the Court of Appeals affirmed the trial court's order dated
March 21, 1975 denying the appeal of Dolores de Mesa Abad
and Cesar de Mesa Tioseco on the ground that the same was
filed out of time. This affirmance is erroneous, for on July 9,
1985, this Court had already ruled that the same was not filed

AGUSTIN, E.P. | 70

out of time. Well-settled is the dictum that the rulings of the

Supreme Court are binding upon and may not be reversed by a
lower court.
WHEREFORE, premises considered, the instant petition is hereby
DENIED. The decision of the Court of Appeals in CA-G.R. CV No.
30184 dated October 19, 1994 is AFFIRMED with the
MODIFICATION that the affirmance of the Order dated March
21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar
de Mesa Tioseco for being filed out of time is SET ASIDE. Costs
against petitioners.
SO ORDERED.

Narvasa, Kapunan, Purisima and Pardo, JJ., concur.

EVIDENCE

AGUSTIN, E.P. | 71

Republic of the Philippines

SUPREME COURT
THIRD DIVISION
G.R. No. 143439

October 14, 2005

MAXIMO ALVAREZ, Petitioner,

vs.
SUSAN RAMIREZ, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari1 assailing the
Decision2 of the Court of Appeals dated May 31, 2000 in CA-G.R.
SP No. 56154, entitled "Susan Ramirez, petitioner, versus, Hon.
Benjamin M. Aquino, Jr., as Judge RTC, Malabon, MM, Br. 72,
and Maximo Alvarez, respondents."
Susan Ramirez, herein respondent, is the complaining witness in
Criminal Case No. 19933-MN for arson3 pending before the
Regional Trial Court, Branch 72, Malabon City. The accused is
Maximo Alvarez, herein petitioner. He is the husband of
Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza
Alvarez to the witness stand as the first witness against
petitioner, her husband. Petitioner and his counsel raised no
objection.

burned and together with several articles of the house, including

shoes, chairs and others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q: When you were able to find the source, incidentally what was
the source of that scent?
A: When I stand by the window, sir, I saw a man pouring the
gasoline in the house of my sister (and witness pointing to the
person of the accused inside the court room).
Q: For the record, Mrs. Witness, can you state the name of that
person, if you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify
him?

Esperanza testified as follows:

A: Yes, sir.

"ATTY. ALCANTARA:

Q: If you can see him inside the Court room, can you please
point him?

We are calling Mrs. Esperanza Alvarez, the wife of the

accused, Your Honor.
COURT:
Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the
purpose of proving that the accused Maximo Alvarez committed
all the elements of the crime being charged particularly that
accused Maximo Alvarez pour on May 29, 1998 gasoline in the
house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan,
Navotas, Metro Manila, the house owned by his sister-in-law
Susan Ramirez; that accused Maximo Alvarez after pouring the
gasoline on the door of the house of Susan Ramirez ignited and
set it on fire; that the accused at the time he successfully set the
house on fire (sic) of Susan Ramirez knew that it was occupied
by Susan Ramirez, the members of the family as well as
Esperanza Alvarez, the estranged wife of the accused;
that as a consequence of the accused in successfully setting the
fire to the house of Susan Ramirez, the door of said house was

EVIDENCE

A: Witness pointing to a person and when asked to stand and

asked his name, he gave his name as Maximo Alvarez."4
In the course of Esperanzas direct testimony against petitioner,
the latter showed "uncontrolled emotions," prompting the trial
judge to suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion5 to
disqualify Esperanza from testifying against him pursuant to Rule
130 of the Revised Rules of Court on marital disqualification.
Respondent filed an opposition6 to the motion. Pending
resolution of the motion, the trial court directed the prosecution
to proceed with the presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned
Order disqualifying Esperanza Alvarez from further testifying and
deleting her testimony from the records.7 The prosecution filed a
motion for reconsideration but was denied in the other assailed
Order dated October 19, 1999.8
This prompted respondent Susan Ramirez, the complaining
witness in Criminal Case No. 19933-MN, to file with the Court of
Appeals a petition for certiorari9 with application for preliminary
injunction and temporary restraining order.10

AGUSTIN, E.P. | 72

On May 31, 2000, the Appellate Court rendered a Decision

nullifying and setting aside the assailed Orders issued by the trial
court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can
testify against her husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
"Sec. 22. Disqualification by reason of marriage. During their
marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the
latters direct descendants or ascendants."
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is
consequent danger of perjury;
3. The policy of the law is to guard the security and confidences
of private life, even at the risk of an occasional failure of justice,
and to prevent domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of
punishing one spouse through the hostile testimony of the
other.11
But like all other general rules, the marital disqualification rule
has its own exceptions, both in civil actions between the spouses
and in criminal cases for offenses committed by one against the
other. Like the rule itself, the exceptions are backed by sound
reasons which, in the excepted cases, outweigh those in support
of the general rule. For instance, where the marital and domestic
relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the
reason based upon such harmony and tranquility fails. In such a
case, identity of interests disappears and the consequent danger
of perjury based on that identity is non-existent. Likewise, in
such a situation, the security and confidences of private life,
which the law aims at protecting, will be nothing but ideals,
which through their absence, merely leave a void in the unhappy
home.12

Obviously, the offense of arson attributed to petitioner, directly

impairs the conjugal relation between him and his wife
Esperanza. His act, as embodied in the Information for arson
filed against him, eradicates all the major aspects of marital life
such as trust, confidence, respect and love by which virtues the
conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to the house of his
sister-in-law Susan Ramirez, knowing fully well that his wife was
there, and in fact with the alleged intent of injuring the latter, is
an act totally alien to the harmony and confidences of marital
relation which the disqualification primarily seeks to protect. The
criminal act complained of had the effect of directly and vitally
impairing the conjugal relation. It underscored the fact that the
marital and domestic relations between her and the accusedhusband have become so strained that there is no more
harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In
such a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which
through their absence, merely leave a void in the unhappy
home. (People v. Castaeda, 271 SCRA 504). Thus, there is no
longer any reason to apply the Marital Disqualification Rule."
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner
and his wife was already strained. In fact, they were separated
de facto almost six months before the incident. Indeed, the
evidence and facts presented reveal that the preservation of the
marriage between petitioner and Esperanza is no longer an
interest the State aims to protect.
At this point, it bears emphasis that the State, being interested
in laying the truth before the courts so that the guilty may be
punished and the innocent exonerated, must have the right to
offer the direct testimony of Esperanza, even against the
objection of the accused, because (as stated by this Court in
Francisco14), "it was the latter himself who gave rise to its
necessity."
WHEREFORE, the Decision of the Court of Appeals is
AFFIRMED. The trial court, RTC, Branch 72, Malabon City, is
ordered to allow Esperanza Alvarez to testify against petitioner,
her husband, in Criminal Case No. 19933-MN. Costs against
petitioner.
SO ORDERED.

In Ordoo vs. Daquigan,13 this Court held:

"We think that the correct rule, which may be adopted in this
jurisdiction, is that laid down in Cargil vs. State, 35 ALR 133, 220
Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon
the person is too narrow; and the rule that any offense remotely
or indirectly affecting domestic harmony comes within the
exception is too broad. The better rule is that, when an offense

directly attacks, or directly and vitally impairs, the conjugal

relation, it comes within the exception to the statute that one
shall not be a witness against the other except in a criminal
prosecution for a crime committee (by) one against the other."

EVIDENCE

AGUSTIN, E.P. | 73

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 105938

September 20, 1996

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V.

CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN,
VICTOR P. LAZATIN and EDUARDO U. ESCUETA,
petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, First Division,
REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT,
and RAUL S. ROCO, respondents.
G.R. No. 108113 September 20, 1996
PARAJA G. HAYUDINI, petitioner,
vs.
THE SANDIGANBAYAN and THE REPUBLIC OF THE
PHILIPPINES, respondents.
KAPUNAN, J.:
These case touch the very cornerstone of every State's judicial
system, upon which the workings of the contentious and
adversarial system in the Philippine legal process are based
the sanctity of fiduciary duty in the client-lawyer relationship.
The fiduciary duty of a counsel and advocate is also what makes
the law profession a unique position of trust and confidence,
which distinguishes it from any other calling. In this instance, we
have no recourse but to uphold and strengthen the mantle of
protection accorded to the confidentiality that proceeds from the
performance of the lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of
the Complaint on July 31, 1987 before the Sandiganbayan by the
Republic of the Philippines, through the Presidential Commission
on Good Government against Eduardo M. Cojuangco, Jr., as one
of the principal defendants, for the recovery of alleged ill-gotten
wealth, which includes shares of stocks in the named
corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled
"Republic of the Philippines versus Eduardo Cojuangco, et al." 1
Among the dependants named in the case are herein petitioners
Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
Escueta and Paraja G. Hayudini, and herein private respondent
Raul S. Roco, who all were then partners of the law firm Angara,
Abello, Concepcion, Regala and Cruz Law Offices (hereinafter
referred to as the ACCRA Law Firm). ACCRA Law Firm performed
legal services for its clients, which included, among others, the
organization and acquisition of business associations and/or
organizations, with the correlative and incidental services where
its members acted as incorporators, or simply, as stockholders.
More specifically, in the performance of these services, the
members of the law firm delivered to its client documents which
substantiate the client's equity holdings, i.e., stock certificates
endorsed in blank representing the shares registered in the
client's name, and a blank deed of trust or assignment covering
said shares. In the course of their dealings with their clients, the

EVIDENCE

members of the law firm acquire information relative to the

assets of clients as well as their personal and business
circumstances. As members of the ACCRA Law Firm, petitioners
and private respondent Raul Roco admit that they assisted in the
organization and acquisition of the companies included in Civil
Case No. 0033, and in keeping with the office practice, ACCRA
lawyers acted as nominees-stockholders of the said corporations
involved in sequestration proceedings. 2
On August 20, 1991, respondent Presidential Commission on
Good Government (hereinafter referred to as respondent PCGG)
filed a "Motion to Admit Third Amended Complaint" and "Third
Amended Complaint" which excluded private respondent Raul S.
Roco from the complaint in PCGG Case No. 33 as partydefendant. 3 Respondent PCGG based its exclusion of private
respondent Roco as party-defendant on his undertaking that he
will reveal the identity of the principal/s for whom he acted as
nominee/stockholder in the companies involved in PCGG Case
No. 33. 4
Petitioners were included in the Third Amended Complaint on
the strength of the following allegations:
14. Defendants Eduardo Cojuangco, Jr.,
Edgardo J. Angara, Jose C. Concepcion,
Teodoro Regala, Avelino V. Cruz, Rogelio
A. Vinluan, Eduardo U. Escueta, Paraja G.
Hayudini and Raul Roco of the Angara
Concepcion Cruz Regala and Abello law
offices (ACCRA) plotted, devised, schemed
conspired and confederated with each
other in setting up, through the use of the
coconut levy funds, the financial and
corporate framework and structures that
led to the establishment of UCPB,
UNICOM, COCOLIFE, COCOMARK, CIC,
and more than twenty other coconut levy
funded
corporations,
including
the
acquisition of San Miguel Corporation
shares and its institutionalization through
presidential directives of the coconut
monopoly. Through insidious means and
machinations, ACCRA, being the whollyowned
investment
arm,
ACCRA
Investments Corporation, became the
holder of approximately fifteen million
shares representing roughly 3.3% of the
total outstanding capital stock of UCPB as
of 31 March 1987. This ranks ACCRA
Investments Corporation number 44
among the top 100 biggest stockholders of
UCPB which has approximately 1,400,000
shareholders. On the other hand,
corporate books show the name Edgardo J.
Angara as holding approximately 3,744
shares as of February, 1984. 5
In their answer to the Expanded Amended Complaint, petitioners
ACCRA lawyers alleged that:
4.4
Defendants-ACCRA
lawyers'
participation in the acts with which their
codefendants are charged, was in
furtherance of legitimate lawyering.
4.4.1 In the course of rendering
professional and legal services
to clients, defendants-ACCRA

AGUSTIN, E.P. | 74

lawyers, Jose C. Concepcion,

Teodoro D. Regala, Rogelio A.
Vinluan
and
Eduardo
U.
Escueta, became holders of
shares
of
stock
in
the
corporations listed under their
respective names in Annex "A"
of the expanded Amended
Complaint as incorporating or
acquiring stockholders only and,
as such, they do not claim any
proprietary interest in the said
shares of stock.
4.5 Defendant ACCRA-lawyer Avelino V.
Cruz was one of the incorporators in 1976
of Mermaid Marketing Corporation, which
was organized for legitimate business
purposes not related to the allegations of
the
expanded
Amended
Complaint.
However, he has long ago transferred any
material interest therein and therefore
denies that the "shares" appearing in his
name in Annex "A" of the expanded
Amended Complaint are his assets. 6
Petitioner Paraja Hayudini, who had separated from ACCRA law
firm, filed a separate answer denying the allegations in the
complaint implicating him in the alleged ill-gotten wealth. 7
Petitioners ACCRA lawyers subsequently filed their "COMMENT
AND/OR OPPOSITION" dated October 8, 1991 with CounterMotion that respondent PCGG similarly grant the same treatment
to them (exclusion as parties-defendants) as accorded private
respondent Roco. 8 The Counter-Motion for dropping petitioners
from the complaint was duly set for hearing on October 18, 1991
in accordance with the requirements of Rule 15 of the Rules of
Court.
In its "Comment," respondent PCGG set the following conditions
precedent for the exclusion of petitioners, namely: (a) the
disclosure of the identity of its clients; (b) submission of
documents substantiating the lawyer-client relationship; and (c)
the submission of the deeds of assignments petitioners executed
in
favor
of
its
client
covering
their
respective
shareholdings. 9
Consequently, respondent PCGG presented supposed proof to
substantiate compliance by private respondent Roco of the
conditions precedent to warrant the latter's exclusion as partydefendant in PCGG Case No. 33, to wit: (a) Letter to respondent
PCGG of the counsel of respondent Roco dated May 24, 1989
reiterating a previous request for reinvestigation by the PCGG in
PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed
by private respondent Roco as Attachment to the letter
aforestated in (a); and (c) Letter of the Roco, Bunag, and
Kapunan Law Offices dated September 21, 1988 to the
respondent PCGG in behalf of private respondent Roco originally
requesting the reinvestigation and/or re-examination of the
evidence of the PCGG against Roco in its Complaint in PCGG
Case No. 33. 10
It is noteworthy that during said proceedings, private respondent
Roco did not refute petitioners' contention that he did actually
not reveal the identity of the client involved in PCGG Case No.
33, nor had he undertaken to reveal the identity of the client for
whom he acted as nominee-stockholder. 11

EVIDENCE

On March 18, 1992, respondent Sandiganbayan promulgated the

Resolution, herein questioned, denying the exclusion of
petitioners in PCGG Case No. 33, for their refusal to comply with
the conditions required by respondent PCGG. It held:
xxx xxx xxx
ACCRA lawyers may take the heroic stance
of not revealing the identity of the client
for whom they have acted, i.e. their
principal, and that will be their choice. But
until they do identify their clients,
considerations of whether or not the
privilege claimed by the ACCRA lawyers
exists cannot even begin to be debated.
The ACCRA lawyers cannot excuse
themselves from the consequences of their
acts until they have begun to establish the
basis for recognizing the privilege; the
existence and identity of the client.
This is what appears to be the cause for
which they have been impleaded by the
PCGG as defendants herein.
5. The PCGG is satisfied that defendant
Roco has demonstrated his agency and
that Roco has apparently identified his
principal, which revelation could show the
lack of cause against him. This in turn has
allowed the PCGG to exercise its power
both under the rules of Agency and under
Section 5 of E.O. No. 14-A in relation to
the Supreme Court's ruling in Republic v.
Sandiganbayan (173 SCRA 72).
The PCGG has apparently offered to the
ACCRA lawyers the same conditions
availed of by Roco; full disclosure in
exchange for exclusion from these
proceedings (par. 7, PCGG's COMMENT
dated November 4, 1991). The ACCRA
lawyers have preferred not to make the
disclosures required by the PCGG.
The ACCRA lawyers cannot, therefore,
begrudge the PCGG for keeping them as
party defendants. In the same vein, they
cannot compel the PCGG to be accorded
the same treatment accorded to Roco.
Neither can this Court.
WHEREFORE, the Counter Motion dated
October 8, 1991 filed by the ACCRA
lawyers and joined in by Atty. Paraja G.
Hayudini for the same treatment by the
PCGG as accorded to Raul S. Roco is
DENIED for lack of merit. 12
ACCRA lawyers moved for a reconsideration of the above
resolution but the same was denied by the respondent
Sandiganbayan. Hence, the ACCRA lawyers filed the petition for
certiorari, docketed as G.R. No. 105938, invoking the following
grounds:

AGUSTIN, E.P. | 75

2.
The
factual
disclosures required
by the PCGG are not
limited to the identity
of petitioners ACCRA
lawyers'
alleged
client(s) but extend
to other privileged
matters.

The Honorable Sandiganbayan gravely

abused its discretion in subjecting
petitioners
ACCRA
lawyers
who
undisputably acted as lawyers in serving as
nominee-stockholders,
to
the
strict
application of the law of agency.
II

IV

The Honorable Sandiganbayan committed

grave abuse of discretion in not
considering petitioners ACCRA lawyers and
Mr. Roco as similarly situated and,
therefore, deserving of equal treatment.
1. There is absolutely
no evidence that Mr.
Roco had revealed,
or had undertaken to
reveal, the identities
of the client(s) for
whom he acted as
nominee-stockholder.
2. Even assuming
that Mr. Roco had
revealed, or had
undertaken to reveal,
the identities of the
client(s),
the
disclosure does not
constitute
a
substantial distinction
as would make the
classification
reasonable under the
equal
protection
clause.
3.
Respondent
Sandiganbayan
sanctioned favoritism
and
undue
preference in favor of
Mr. Roco in violation
of
the
equal
protection clause.
III
The Honorable Sandiganbayan committed
grave abuse of discretion in not holding
that, under the facts of this case, the
attorney-client
privilege
prohibits
petitioners ACCRA lawyers from revealing
the identity of their client(s) and the other
information requested by the PCGG.
1. Under the peculiar
facts of this case, the
attorney-client
privilege includes the
identity
of
the
client(s).

EVIDENCE

The Honorable Sandiganbayan committed

grave abuse of discretion in not requiring
that the dropping of party-defendants by
the PCGG must be based on reasonable
and just grounds and with due
consideration to the constitutional right of
petitioners ACCRA lawyers to the equal
protection of the law.
Petitioner Paraja G. Hayudini, likewise, filed his own motion for
reconsideration of the March 18, 1991 resolution which was
denied by respondent Sandiganbayan. Thus, he filed a separate
petition for certiorari, docketed as G.R. No. 108113, assailing
respondent Sandiganbayan's resolution on essentially the same
grounds averred by petitioners in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as
party-defendant in PCGG Case No. 33 grants him a favorable
treatment, on the pretext of his alleged undertaking to divulge
the identity of his client, giving him an advantage over them
who are in the same footing as partners in the ACCRA law firm.
Petitioners further argue that even granting that such an
undertaking has been assumed by private respondent Roco, they
are prohibited from revealing the identity of their principal under
their sworn mandate and fiduciary duty as lawyers to uphold at
all times the confidentiality of information obtained during such
lawyer-client relationship.
Respondent PCGG, through its counsel, refutes petitioners'
contention, alleging that the revelation of the identity of the
client is not within the ambit of the lawyer-client confidentiality
privilege, nor are the documents it required (deeds of
assignment) protected, because they are evidence of nominee
status. 13
In his comment, respondent Roco asseverates that respondent
PCGG acted correctly in excluding him as party-defendant
because he "(Roco) has not filed an Answer. PCGG had therefore
the right to dismiss Civil Case No. 0033 as to Roco 'without an
order of court by filing a notice of dismissal'," 14 and he has
undertaken to identify his principal. 15
Petitioners' contentions are impressed with merit.
I
It is quite apparent that petitioners were impleaded by the PCGG
as co-defendants to force them to disclose the identity of their
clients. Clearly, respondent PCGG is not after petitioners but the
"bigger fish" as they say in street parlance. This ploy is quite
clear from the PCGG's willingness to cut a deal with petitioners
the names of their clients in exchange for exclusion from the
complaint. The statement of the Sandiganbayan in its questioned
resolution dated March 18, 1992 is explicit:

AGUSTIN, E.P. | 76

ACCRA lawyers may take the heroic stance

of not revealing the identity of the client
for whom they have acted, i.e, their
principal, and that will be their choice. But
until they do identify their clients,
considerations of whether or not the
privilege claimed by the ACCRA lawyers
exists cannot even begin to be debated.

The ACCRA lawyers cannot excuse

themselves from the consequences of their
acts until they have begun to establish the
basis for recognizing the privilege; the
existence and identity of the client.
This is what appears to be the cause for
which they have been impleaded by the
PCGG as defendants herein. (Emphasis
ours)

In a closely related case, Civil Case No. 0110 of the

Sandiganbayan, Third Division, entitled "Primavera Farms, Inc.,
et al. vs. Presidential Commission on Good Government"
respondent PCGG, through counsel Mario Ongkiko, manifested at
the hearing on December 5, 1991 that the PCGG wanted to
establish through the ACCRA that their "so called client is Mr.
Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in
corporations included in Annex "A" of the Third Amended
Complaint; that the ACCRA lawyers executed deeds of trust and
deeds of assignment, some in the name of particular persons;
some in blank.
We quote Atty. Ongkiko:
ATTY. ONGKIKO:
With the permission of this Hon. Court. I
propose to establish through these ACCRA
lawyers that, one, their so-called client is
Mr. Eduardo Cojuangco. Second, it was Mr.
Eduardo Cojuangco who furnished all the
monies to these subscription payments of
these corporations who are now the
petitioners in this case. Third, that these
lawyers executed deeds of trust, some in
the name of a particular person, some in
blank. Now, these blank deeds are
important to our claim that some of the
shares are actually being held by the
nominees for the late President Marcos.
Fourth, they also executed deeds of
assignment
and
some
of
these
assignments have also blank assignees.
Again, this is important to our claim that
some of the shares are for Mr. Conjuangco
and some are for Mr. Marcos. Fifth, that
most of thes e corporations are really just
paper corporations. Why do we say that?
One: There are no really fixed sets of
officers, no fixed sets of directors at the
time of incorporation and even up to 1986,
which is the crucial year. And not only
that, they have no permits from the
municipal authorities in Makati. Next,
actually all their addresses now are care of
Villareal Law Office. They really have no
address on records. These are some of the
principal things that we would ask of these

EVIDENCE

nominees stockholders, as they called

themselves. 16
It would seem that petitioners are merely standing in for their
clients as defendants in the complaint. Petitioners are being
prosecuted solely on the basis of activities and services
performed in the course of their duties as lawyers. Quite
obviously, petitioners' inclusion as co-defendants in the
complaint is merely being used as leverage to compel them to
name their clients and consequently to enable the PCGG to nail
these clients. Such being the case, respondent PCGG has no
valid cause of action as against petitioners and should exclude
them from the Third Amended Complaint.
II
The nature of lawyer-client relationship is premised on the
Roman Law concepts of locatio conductio operarum (contract of
lease of services) where one person lets his services and another
hires them without reference to the object of which the services
are to be performed, wherein lawyers' services may be
compensated by honorarium or for hire, 17 and mandato
(contract of agency) wherein a friend on whom reliance could be
placed makes a contract in his name, but gives up all that he
gained by the contract to the person who requested him. 18 But
the lawyer-client relationship is more than that of the principalagent and lessor-lessee.
In modern day perception of the lawyer-client relationship, an
attorney is more than a mere agent or servant, because he
possesses special powers of trust and confidence reposed on
him by his client. 19 A lawyer is also as independent as the judge
of the court, thus his powers are entirely different from and
superior to those of an ordinary agent. 20 Moreover, an attorney
also occupies what may be considered as a "quasi-judicial office"
since he is in fact an officer of the Court 21 and exercises his
judgment in the choice of courses of action to be taken
favorable to his client.
Thus, in the creation of lawyer-client relationship, there are
rules, ethical conduct and duties that breathe life into it, among
those, the fiduciary duty to his client which is of a very delicate,
exacting and confidential character, requiring a very high degree
of fidelity and good faith, 22 that is required by reason of
necessity and public interest 23 based on the hypothesis that
abstinence from seeking legal advice in a good cause is an evil
which is fatal to the administration of justice. 24
It is also the strict sense of fidelity of a
lawyer to his client that distinguishes him
from any other professional in society. This
conception is entrenched and embodies
centuries of established and stable
tradition. 25 In Stockton v. Ford, 26 the U.
S. Supreme Court held:
There are few of the business relations of
life involving a higher trust and confidence
than that of attorney and client, or
generally speaking, one more honorably
and faithfully discharged; few more
anxiously guarded by the law, or governed
by the sterner principles of morality and
justice; and it is the duty of the court to
administer them in a corresponding spirit,
and to be watchful and industrious, to see
that confidence thus reposed shall not be

AGUSTIN, E.P. | 77

used to the detriment or prejudice of the

rights of the party bestowing it. 27
In our jurisdiction, this privilege takes off from the old Code of
Civil Procedure enacted by the Philippine Commission on August
7, 1901. Section 383 of the Code specifically "forbids counsel,
without authority of his client to reveal any communication made
by the client to him or his advice given thereon in the course of
professional employment." 28 Passed on into various provisions
of the Rules of Court, the attorney-client privilege, as currently
worded provides:
Sec. 24. Disqualification by reason of
privileged communication. The following
persons cannot testify as to matters
learned in confidence in the following
cases:
xxx xxx xxx
An attorney cannot, without the consent of
his client, be examined as to any
communication made by the client to him,
or his advice given thereon in the course
of, or with a view to, professional
employment, can an attorney's secretary,
stenographer, or clerk be examined,
without the consent of the client and his
employer, concerning any fact the
knowledge of which has been acquired in
such capacity. 29
Further, Rule 138 of the Rules of Court states:
Sec. 20. It is the duty of an attorney: (e)
to maintain inviolate the confidence, and at
every peril to himself, to preserve the
secrets of his client, and to accept no
compensation in connection with his
client's business except from him or with
his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of
Professional Responsibility which provides that:
Canon 17. A lawyer owes fidelity to the
cause of his client and he shall be mindful
of the trust and confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a
lawyer's fidelity to client:
The lawyers owes "entire devotion to the
interest of the client, warm zeal in the
maintenance and defense of his rights and
the exertion of his utmost learning and
ability," to the end that nothing be taken
or be withheld from him, save by the rules
of law, legally applied. No fear of judicial
disfavor or public popularity should restrain
him from the full discharge of his duty. In
the judicial forum the client is entitled to
the benefit of any and every remedy and
defense that is authorized by the law of
the land, and he may expect his lawyer to
assert every such remedy or defense. But

EVIDENCE

it is steadfastly to be borne in mind that

the great trust of the lawyer is to be
performed within and not without the
bounds of the law. The office of attorney
does not permit, much less does it demand
of him for any client, violation of law or
any manner of fraud or chicanery. He must
obey his own conscience and not that of
his client.
Considerations
favoring
confidentially
in
lawyer-client
relationships are many and serve several constitutional and
policy concerns. In the constitutional sphere, the privilege gives
flesh to one of the most sacrosanct rights available to the
accused, the right to counsel. If a client were made to choose
between legal representation without effective communication
and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to
either opt to stay away from the judicial system or to lose the
right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information would
be curtailed thereby rendering the right practically nugatory. The
threat this represents against another sacrosanct individual right,
the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal
services opens the door to a whole spectrum of legal options
which would otherwise be circumscribed by limited information
engendered by a fear of disclosure. An effective lawyer-client
relationship is largely dependent upon the degree of confidence
which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and
flow of information. It necessarily follows that in order to attain
effective representation, the lawyer must invoke the privilege
not as a matter of option but as a matter of duty and
professional responsibility.
The question now arises whether or not this duty may be
asserted in refusing to disclose the name of petitioners' client(s)
in the case at bar. Under the facts and circumstances obtaining
in the instant case, the answer must be in the affirmative.
As a matter of public policy, a client's identity should not be
shrouded in mystery 30 Under this premise, the general rule in
our jurisdiction as well as in the United States is that a lawyer
may not invoke the privilege and refuse to divulge the name or
identity of this client. 31
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose
privileged information is sought to be protected is flesh and
blood.
Second, the privilege begins to exist only after the attorneyclient relationship has been established. The attorney-client
privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of
the relationship.
Finally, due process considerations require that the opposing
party should, as a general rule, know his adversary. "A party
suing or sued is entitled to know who his opponent is." 32 He
cannot be obliged to grope in the dark against unknown forces.
33

AGUSTIN, E.P. | 78

Notwithstanding these considerations, the general rule is

however qualified by some important exceptions.
1) Client identity is privileged where a strong probability exists
that revealing the client's name would implicate that client in the
very activity for which he sought the lawyer's advice.
34

In Ex-Parte Enzor,
a state supreme court reversed a lower
court order requiring a lawyer to divulge the name of her client
on the ground that the subject matter of the relationship was so
closely related to the issue of the client's identity that the
privilege actually attached to both. In Enzor, the unidentified
client, an election official, informed his attorney in confidence
that he had been offered a bribe to violate election laws or that
he had accepted a bribe to that end. In her testimony, the
attorney revealed that she had advised her client to count the
votes correctly, but averred that she could not remember
whether her client had been, in fact, bribed. The lawyer was
cited for contempt for her refusal to reveal his client's identity
before a grand jury. Reversing the lower court's contempt
orders, the state supreme court held that under the
circumstances of the case, and under the exceptions described
above, even the name of the client was privileged.

U .S. v. Hodge and Zweig, 35 involved the same exception, i.e.

that client identity is privileged in those instances where a strong
probability exists that the disclosure of the client's identity would
implicate the client in the very criminal activity for which the
lawyer's legal advice was obtained.

The Hodge case involved federal grand jury proceedings

inquiring into the activities of the "Sandino Gang," a gang
involved in the illegal importation of drugs in the United States.
The respondents, law partners, represented key witnesses and
suspects including the leader of the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the
IRS issued summons to Hodge and Zweig, requiring them to
produce documents and information regarding payment received
by Sandino on behalf of any other person, and vice versa. The
lawyers refused to divulge the names. The Ninth Circuit of the
United States Court of Appeals, upholding non-disclosure under
the facts and circumstances of the case, held:
A client's identity and the nature of that
client's fee arrangements may be
privileged where the person invoking the
privilege can show that a strong probability
exists that disclosure of such information
would implicate that client in the very
criminal activity for which legal advice was
sought Baird v. Koerner, 279 F. 2d at 680.
While in Baird Owe enunciated this rule as
a matter of California law, the rule also
reflects federal law. Appellants contend
that the Baird exception applies to this
case.
The Baird exception is entirely consonant
with the principal policy behind the
attorney-client privilege. "In order to
promote freedom of consultation of legal
advisors by clients, the apprehension of
compelled disclosure from the legal
advisors must be removed; hence, the law
must prohibit such disclosure except on
the client's consent." 8 J. Wigmore, supra

EVIDENCE

sec. 2291, at 545. In furtherance of this

policy, the client's identity and the nature
of his fee arrangements are, in exceptional
cases,
protected
as
confidential
communications. 36
2) Where disclosure would open the client to civil liability; his
identity is privileged. For instance, the peculiar facts and
circumstances of Neugass v. Terminal Cab Corporation, 37
prompted the New York Supreme Court to allow a lawyer's claim
to the effect that he could not reveal the name of his client
because this would expose the latter to civil litigation.
In the said case, Neugass, the plaintiff, suffered injury when the
taxicab she was riding, owned by respondent corporation,
collided with a second taxicab, whose owner was unknown.
Plaintiff brought action both against defendant corporation and
the owner of the second cab, identified in the information only
as John Doe. It turned out that when the attorney of defendant
corporation appeared on preliminary examination, the fact was
somehow revealed that the lawyer came to know the name of
the owner of the second cab when a man, a client of the
insurance company, prior to the institution of legal action, came
to him and reported that he was involved in a car accident. It
was apparent under the circumstances that the man was the
owner of the second cab. The state supreme court held that the
reports were clearly made to the lawyer in his professional
capacity. The court said:
That his employment came about through
the fact that the insurance company had
hired him to defend its policyholders seems
immaterial. The attorney is such cases is
clearly the attorney for the policyholder
when the policyholder goes to him to
report an occurrence contemplating that it
would be used in an action or claim against
him. 38
xxx xxx xxx
All communications made by a client to his
counsel, for the purpose of professional
advice or assistance, are privileged,
whether they relate to a suit pending or
contemplated, or to any other matter
proper for such advice or aid; . . . And
whenever the communication made,
relates to a matter so connected with the
employment as attorney or counsel as to
afford presumption that it was the ground
of the address by the client, then it is
privileged from disclosure. . .
It appears . . . that the name and address
of the owner of the second cab came to
the attorney in this case as a confidential
communication. His client is not seeking to
use the courts, and his address cannot be
disclosed on that theory, nor is the present
action pending against him as service of
the summons on him has not been
effected. The objections on which the
court reserved decision are sustained. 39
In the case of Matter of Shawmut Mining Company, 40 the lawyer
involved was required by a lower court to disclose whether he

AGUSTIN, E.P. | 79

represented certain clients in a certain transaction. The purpose

of the court's request was to determine whether the unnamed
persons as interested parties were connected with the purchase
of properties involved in the action. The lawyer refused and
brought the question to the State Supreme Court. Upholding the
lawyer's refusal to divulge the names of his clients the court
held:
If it can compel the witness to state, as
directed by the order appealed from, that
he represented certain persons in the
purchase or sale of these mines, it has
made progress in establishing by such
evidence their version of the litigation. As
already suggested, such testimony by the
witness would compel him to disclose not
only that he was attorney for certain
people, but that, as the result of
communications made to him in the course
of such employment as such attorney, he
knew that they were interested in certain
transactions. We feel sure that under such
conditions no case has ever gone to the
length of compelling an attorney, at the
instance of a hostile litigant, to disclose not
only his retainer, but the nature of the
transactions to which it related, when such
information could be made the basis of a
suit against his client. 41
3) Where the government's lawyers have no case against an
attorney's client unless, by revealing the client's name, the said
name would furnish the only link that would form the chain of
testimony necessary to convict an individual of a crime, the
client's name is privileged.
In Baird vs. Korner, 42 a lawyer was consulted by the
accountants and the lawyer of certain undisclosed taxpayers
regarding steps to be taken to place the undisclosed taxpayers in
a favorable position in case criminal charges were brought
against them by the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayers' returns of previous years were
probably incorrect and the taxes understated. The clients
themselves were unsure about whether or not they violated tax
laws and sought advice from Baird on the hypothetical possibility
that they had. No investigation was then being undertaken by
the IRS of the taxpayers. Subsequently, the attorney of the
taxpayers delivered to Baird the sum of $12, 706.85, which had
been previously assessed as the tax due, and another amount of
money representing his fee for the advice given. Baird then sent
a check for $12,706.85 to the IRS in Baltimore, Maryland, with a
note explaining the payment, but without naming his clients. The
IRS demanded that Baird identify the lawyers, accountants, and
other clients involved. Baird refused on the ground that he did
not know their names, and declined to name the attorney and
accountants because this constituted privileged communication.
A petition was filed for the enforcement of the IRS summons.
For Baird's repeated refusal to name his clients he was found
guilty of civil contempt. The Ninth Circuit Court of Appeals held
that, a lawyer could not be forced to reveal the names of clients
who employed him to pay sums of money to the government
voluntarily in settlement of undetermined income taxes, unsued
on, and with no government audit or investigation into that
client's income tax liability pending. The court emphasized the
exception that a client's name is privileged when so much has
been revealed concerning the legal services rendered that the
disclosure of the client's identity exposes him to possible

EVIDENCE

investigation and sanction by government agencies. The Court

held:
The facts of the instant case bring it
squarely within that exception to the
general rule. Here money was received by
the government, paid by persons who
thereby admitted they had not paid a
sufficient amount in income taxes some
one or more years in the past. The names
of the clients are useful to the government
for but one purpose to ascertain which
taxpayers think they were delinquent, so
that it may check the records for that one
year or several years. The voluntary nature
of the payment indicates a belief by the
taxpayers that more taxes or interest or
penalties are due than the sum previously
paid, if any. It indicates a feeling of guilt
for nonpayment of taxes, though whether
it is criminal guilt is undisclosed. But it may
well be the link that could form the chain
of testimony necessary to convict an
individual of a federal crime. Certainly the
payment and the feeling of guilt are the
reasons the attorney here involved was
employed to advise his clients what,
under the circumstances, should be done.
43

Apart from these principal exceptions, there exist other

situations which could qualify as exceptions to the general rule.
For example, the content of any client communication to a
lawyer lies within the privilege if it is relevant to the subject
matter of the legal problem on which the client seeks legal
assistance. 44 Moreover, where the nature of the attorney-client
relationship has been previously disclosed and it is the identity
which is intended to be confidential, the identity of the client has
been held to be privileged, since such revelation would
otherwise result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the
identity of a client may fall within the ambit of the privilege
when the client's name itself has an independent significance,
such that disclosure would then reveal client confidences. 46
The circumstances involving the engagement of lawyers in the
case at bench, therefore, clearly reveal that the instant case falls
under at least two exceptions to the general rule. First,
disclosure of the alleged client's name would lead to establish
said client's connection with the very fact in issue of the case,
which is privileged information, because the privilege, as stated
earlier, protects the subject matter or the substance (without
which there would be not attorney-client relationship).
The link between the alleged criminal offense and the legal
advice or legal service sought was duly establishes in the case at
bar, by no less than the PCGG itself. The key lies in the three
specific conditions laid down by the PCGG which constitutes
petitioners' ticket to non-prosecution should they accede
thereto:
(a) the disclosure of the identity of its
clients;

AGUSTIN, E.P. | 80

(b)
submission
of
substantiating
the
relationship; and

documents
lawyer-client

(c) the submission of the deeds of

assignment petitioners executed in favor of
their clients covering their respective
shareholdings.
From these conditions, particularly the third, we can readily
deduce that the clients indeed consulted the petitioners, in their
capacity as lawyers, regarding the financial and corporate
structure, framework and set-up of the corporations in question.
In turn, petitioners gave their professional advice in the form of,
among others, the aforementioned deeds of assignment
covering their client's shareholdings.
There is no question that the preparation of the aforestated
documents was part and parcel of petitioners' legal service to
their clients. More important, it constituted an integral part of
their duties as lawyers. Petitioners, therefore, have a legitimate
fear that identifying their clients would implicate them in the
very activity for which legal advice had been sought, i.e., the
alleged accumulation of ill-gotten wealth in the aforementioned
corporations.
Furthermore, under the third main exception, revelation of the
client's name would obviously provide the necessary link for the
prosecution to build its case, where none otherwise exists. It is
the link, in the words of Baird, "that would inevitably form the
chain of testimony necessary to convict the (client) of a . . .
crime." 47
An important distinction must be made between a case where a
client takes on the services of an attorney for illicit purposes,
seeking advice about how to go around the law for the purpose
of committing illegal activities and a case where a client thinks
he might have previously committed something illegal and
consults his attorney about it. The first case clearly does not fall
within the privilege because the same cannot be invoked for
purposes illegal. The second case falls within the exception
because whether or not the act for which the client sought
advice turns out to be illegal, his name cannot be used or
disclosed if the disclosure leads to evidence, not yet in the hands
of the prosecution, which might lead to possible action against
him.
These cases may be readily distinguished, because the privilege
cannot be invoked or used as a shield for an illegal act, as in the
first example; while the prosecution may not have a case against
the client in the second example and cannot use the attorney
client relationship to build up a case against the latter. The
reason for the first rule is that it is not within the professional
character of a lawyer to give advice on the commission of a
crime. 48 The reason for the second has been stated in the cases
above discussed and are founded on the same policy grounds
for which the attorney-client privilege, in general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court
therein stated that "under such conditions no case has ever yet
gone to the length of compelling an attorney, at the instance of
a hostile litigant, to disclose not only his retainer, but the nature
of the transactions to which it related, when such information
could be made the basis of a suit against his client." 49
"Communications made to an attorney in the course of any
personal employment, relating to the subject thereof, and which
may be supposed to be drawn out in consequence of the relation

EVIDENCE

in which the parties stand to each other, are under the seal of
confidence and entitled to protection as privileged
communications." 50 Where the communicated information,
which clearly falls within the privilege, would suggest possible
criminal activity but there would be not much in the information
known to the prosecution which would sustain a charge except
that revealing the name of the client would open up other
privileged information which would substantiate the
prosecution's suspicions, then the client's identity is so
inextricably linked to the subject matter itself that it falls within
the protection. The Baird exception, applicable to the instant
case, is consonant with the principal policy behind the privilege,
i.e., that for the purpose of promoting freedom of consultation of
legal advisors by clients, apprehension of compelled disclosure
from attorneys must be eliminated. This exception has likewise
been sustained in In re Grand Jury Proceedings 51 and Tillotson
v. Boughner. 52 What these cases unanimously seek to avoid is
the exploitation of the general rule in what may amount to a
fishing expedition by the prosecution.
There are, after all, alternative source of information available to
the prosecutor which do not depend on utilizing a defendant's
counsel as a convenient and readily available source of
information in the building of a case against the latter.
Compelling disclosure of the client's name in circumstances such
as the one which exists in the case at bench amounts to
sanctioning fishing expeditions by lazy prosecutors and litigants
which we cannot and will not countenance. When the nature of
the transaction would be revealed by disclosure of an attorney's
retainer, such retainer is obviously protected by the privilege. 53
It follows that petitioner attorneys in the instant case owe their
client(s) a duty and an obligation not to disclose the latter's
identity which in turn requires them to invoke the privilege.
In fine, the crux of petitioners' objections ultimately hinges on
their expectation that if the prosecution has a case against their
clients, the latter's case should be built upon evidence
painstakingly gathered by them from their own sources and not
from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about
the nature of the transaction which may or may not be illegal.
The logical nexus between name and nature of transaction is so
intimate in this case the it would be difficult to simply dissociate
one from the other. In this sense, the name is as much
"communication" as information revealed directly about the
transaction in question itself, a communication which is clearly
and distinctly privileged. A lawyer cannot reveal such
communication without exposing himself to charges of violating
a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his client
therefore imposes a strict liability for negligence on the former.
The ethical duties owing to the client, including confidentiality,
loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions
have been zealously sustained. In Milbank, Tweed, Hadley and
McCloy v. Boon, 54 the US Second District Court rejected the plea
of the petitioner law firm that it breached its fiduciary duty to its
client by helping the latter's former agent in closing a deal for
the agent's benefit only after its client hesitated in proceeding
with the transaction, thus causing no harm to its client. The
Court instead ruled that breaches of a fiduciary relationship in
any context comprise a special breed of cases that often loosen
normally stringent requirements of causation and damages, and
found in favor of the client.
To the same effect is the ruling in Searcy, Denney, Scarola,
Barnhart, and Shipley P.A. v. Scheller 55 requiring strict

AGUSTIN, E.P. | 81

obligation of lawyers vis-a-vis clients. In this case, a contingent

fee lawyer was fired shortly before the end of completion of his
work, and sought payment quantum meruit of work done. The
court, however, found that the lawyer was fired for cause after
he sought to pressure his client into signing a new fee
agreement while settlement negotiations were at a critical stage.
While the client found a new lawyer during the interregnum,
events forced the client to settle for less than what was originally
offered. Reiterating the principle of fiduciary duty of lawyers to
clients in Meinhard v. Salmon 56 famously attributed to Justice
Benjamin Cardozo that "Not honesty alone, but the punctilio of
an honor the most sensitive, is then the standard of behavior,"
the US Court found that the lawyer involved was fired for cause,
thus deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyerclient confidentiality privilege and lawyer's loyalty to his client is
evident in the duration of the protection, which exists not only
during the relationship, but extends even after the termination
of the relationship. 57
Such are the unrelenting duties required by lawyers vis-a-vis
their clients because the law, which the lawyers are sworn to
uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an
exacting goddess, demanding of her votaries in intellectual and
moral discipline." The Court, no less, is not prepared to accept
respondents' position without denigrating the noble profession
that is lawyering, so extolled by Justice Holmes in this wise:
Every calling is great when greatly
pursued. But what other gives such scope
to realize the spontaneous energy of one's
soul? In what other does one plunge so
deep in the stream of life so share its
passions its battles, its despair, its
triumphs, both as witness and actor? . . .
But that is not all. What a subject is this in
which we are united this abstraction
called the Law, wherein as in a magic
mirror, we see reflected, not only in our
lives, but the lives of all men that have
been. When I think on this majestic theme
my eyes dazzle. If we are to speak of the
law as our mistress, we who are here know
that she is a mistress only to be won with
sustained and lonely passion only to be
won by straining all the faculties by which
man is likened to God.
We have no choice but to uphold petitioners' right not to reveal
the identity of their clients under pain of the breach of fiduciary
duty owing to their clients, because the facts of the instant case
clearly fall within recognized exceptions to the rule that the
client's name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client
confidential privilege under the circumstances obtaining here
does not cover the identity of the client, then it would expose
the lawyers themselves to possible litigation by their clients in
view of the strict fiduciary responsibility imposed on them in the
exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the
defendants therein, including herein petitioners and
Eduardo Cojuangco, Jr. conspired with each other in
setting up through the use of coconut levy funds the
financial and corporate framework and structures that
led to the establishment of UCPB, UNICOM and others

EVIDENCE

and that through insidious means and machinations,

ACCRA, using its wholly-owned investment arm,
ACCRA Investment Corporation, became the holder of
approximately fifteen million shares representing
roughly 3.3% of the total capital stock of UCPB as of
31 March 1987. The PCGG wanted to establish
through the ACCRA lawyers that Mr. Cojuangco is
their client and it was Cojuangco who furnished all
the monies to the subscription payment; hence,
petitioners acted as dummies, nominees and/or
agents by allowing themselves, among others, to be
used as instrument in accumulating ill-gotten wealth
through government concessions, etc., which acts
constitute gross abuse of official position and
authority, flagrant breach of public trust, unjust
enrichment, violation of the Constitution and laws of
the Republic of the Philippines.
By compelling petitioners, not only to reveal the
identity of their clients, but worse, to submit to the
PCGG documents substantiating the client-lawyer
relationship, as well as deeds of assignment
petitioners executed in favor of its clients covering
their respective shareholdings, the PCGG would exact
from petitioners a link "that would inevitably form the
chain of testimony necessary to convict the (client) of
a crime."
III
In response to petitioners' last assignment of error,
respondents alleged that the private respondent was
dropped as party defendant not only because of his
admission that he acted merely as a nominee but also
because of his undertaking to testify to such facts and
circumstances "as the interest of truth may require,
which includes . . . the identity of the principal." 59
First, as to the bare statement that private
respondent merely acted as a lawyer and nominee, a
statement made in his out-of-court settlement with
the PCGG, it is sufficient to state that petitioners have
likewise made the same claim not merely out-of-court
but also in the Answer to plaintiff's Expanded
Amended Complaint, signed by counsel, claiming that
their acts were made in furtherance of "legitimate
lawyering." 60 Being "similarly situated" in this regard,
public respondents must show that there exist other
conditions and circumstances which would warrant
their treating the private respondent differently from
petitioners in the case at bench in order to evade a
violation of the equal protection clause of the
Constitution.
To this end, public respondents contend that the
primary consideration behind their decision to sustain
the PCGG's dropping of private respondent as a
defendant was his promise to disclose the identities of
the clients in question. However, respondents failed
to show and absolute nothing exists in the records
of the case at bar that private respondent actually
revealed the identity of his client(s) to the PCGG.
Since the undertaking happens to be the leitmotif of
the entire arrangement between Mr. Roco and the
PCGG, an undertaking which is so material as to have
justified PCGG's special treatment exempting the
private respondent from prosecution, respondent
Sandiganbayan should have required proof of the

AGUSTIN, E.P. | 82

undertaking more substantial than a "bare assertion"

that private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG,
only three documents were submitted for the
purpose, two of which were mere requests for reinvestigation and one simply disclosed certain clients
which petitioners (ACCRA lawyers) were themselves
willing to reveal. These were clients to whom both
petitioners and private respondent rendered legal
services while all of them were partners at ACCRA,
and were not the clients which the PCGG wanted
disclosed for the alleged questioned transactions. 61
To justify the dropping of the private respondent from
the case or the filing of the suit in the respondent
court without him, therefore, the PCGG should
conclusively show that Mr. Roco was treated as
species apart from the rest of the ACCRA lawyers on
the basis of a classification which made substantial
distinctions based on real differences. No such
substantial distinctions exist from the records of the
case at bench, in violation of the equal protection
clause.
The equal protection clause is a guarantee which
provides a wall of protection against uneven
application of status and regulations. In the broader
sense, the guarantee operates against uneven
application
of
legal
norms
so
that all persons under similar circumstances would be
accorded the same treatment. 62 Those who fall
within a particular class ought to be treated alike not
only as to privileges granted but also as to the
liabilities imposed.
. . . What is required under this
constitutional guarantee is the uniform
operation of legal norms so that all persons
under similar circumstances would be
accorded the same treatment both in the
privileges conferred and the liabilities
imposed. As was noted in a recent
decision: "Favoritism and undue preference
cannot be allowed. For the principle is that
equal protection and security shall be given
to every person under circumstances,
which if not identical are analogous. If law
be looked upon in terms of burden or
charges, those that fall within a class
should be treated in the same fashion,
whatever restrictions cast on some in the
group equally binding the rest. 63
We find that the condition precedent required by the
respondent PCGG of the petitioners for their exclusion
as parties-defendants in PCGG Case No. 33 violates
the lawyer-client confidentiality privilege. The
condition also constitutes a transgression by
respondents Sandiganbayan and PCGG of the equal
protection clause of the Constitution. 64 It is grossly
unfair to exempt one similarly situated litigant from
prosecution without allowing the same exemption to
the others. Moreover, the PCGG's demand not only
touches upon the question of the identity of their
clients but also on documents related to the
suspected transactions, not only in violation of the
attorney-client privilege but also of the constitutional
right against self-incrimination. Whichever way one

EVIDENCE

looks at it, this is a fishing expedition, a free ride at

the expense of such rights.
An argument is advanced that the invocation by
petitioners of the privilege of attorney-client
confidentiality at this stage of the proceedings is
premature and that they should wait until they are
called to testify and examine as witnesses as to
matters learned in confidence before they can raise
their objections. But petitioners are not mere
witnesses. They are co-principals in the case for
recovery of alleged ill-gotten wealth. They have made
their position clear from the very beginning that they
are not willing to testify and they cannot be
compelled to testify in view of their constitutional
right against self-incrimination and of their
fundamental legal right to maintain inviolate the
privilege of attorney-client confidentiality.
It is clear then that the case against petitioners
should never be allowed to take its full course in the
Sandiganbayan. Petitioners should not be made to
suffer the effects of further litigation when it is
obvious that their inclusion in the complaint arose
from a privileged attorney-client relationship and as a
means of coercing them to disclose the identities of
their clients. To allow the case to continue with
respect to them when this Court could nip the
problem in the bud at this early opportunity would be
to sanction an unjust situation which we should not
here countenance. The case hangs as a real and
palpable threat, a proverbial Sword of Damocles over
petitioners' heads. It should not be allowed to
continue a day longer.
While we are aware of respondent PCGG's legal
mandate to recover ill-gotten wealth, we will not
sanction acts which violate the equal protection
guarantee and the right against self-incrimination and
subvert the lawyer-client confidentiality privilege.
WHEREFORE, IN VIEW OF THE FOREGOING, the
Resolutions of respondent Sandiganbayan (First
Division) promulgated on March 18, 1992 and May
21, 1992 are hereby ANNULLED and SET ASIDE.
Respondent Sandiganbayan is further ordered to
exclude petitioners Teodoro D. Regala, Edgardo J.
Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni
as parties-defendants in SB Civil Case No. 0033
entitled "Republic of the Philippines v. Eduardo
Cojuangco, Jr., et al."
SO ORDERED.

Bellosillo, Melo and Francisco, JJ., concur.

Padilla, Panganiban and Torres, Jr., JJ., concur in the result.
Romero and Hermosisima, Jr., JJ., took no part.
Mendoza, J., is on leave.

AGUSTIN, E.P. | 83

RULE 130: Rules of Admissibility

(a) Sec. 25 - Sec 35: Testimonial Privilege;
Admissions and Confessions;
Previous Conduct as Evidence
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

The case was thereafter punctuated by various incidents relative

to modes of discovery, pre-trial, postponements or continuances,
motions to dismiss, motions to declare defendants in default and
other procedural matters.
During the pendency of the case, the Senate Blue Ribbon
Committee and Committee on Justice and Human Rights
conducted a hearing in aid of legislation on the matter of land
registration and titling. In particular, the legislative investigation
looked into the issuance of fake titles and focused on how
respondent was able to acquire TCT Nos. 135604, 135605 and
135606.

G.R. No. 149576 August 8, 2006

REPUBLIC OF THE PHILIPPINES, represented by the
Land Registration Authority, Petitioner,
vs.
KENRICK DEVELOPMENT CORPORATION, Respondent.
DECISION
CORONA, J.:
The Republic of the Philippines assails the May 31, 2001 decision
1
and August 20, 2001 resolution of the Court of Appeals in CAG.R. SP No. 52948 in this petition for review under Rule 45 of
the Rules of Court.
This case stemmed from the construction by respondent Kenrick
Development Corporation of a concrete perimeter fence around
some parcels of land located behind the Civil Aviation Training
Center of the Air Transportation Office (ATO) in 1996. As a
result, the ATO was dispossessed of some 30,228 square meters
of prime land. Respondent justified its action with a claim of
ownership over the property. It presented Transfer Certificate of
Title (TCT) Nos. 135604, 135605 and 135606 issued in its name
and which allegedly originated from TCT No. 17508 registered in
the name of one Alfonso Concepcion.
ATO verified the authenticity of respondents titles with the Land
Registration Authority (LRA). On May 17, 1996, Atty. Jose
Loriega, head of the Land Title Verification Task Force of the
LRA, submitted his report. The Registrar of Deeds of Pasay City
had no record of TCT No. 17508 and its ascendant title, TCT No.
5450. The land allegedly covered by respondents titles was also
found to be within Villamor Air Base (headquarters of the
Philippine Air Force) in Pasay City.
By virtue of the report, the Office of the Solicitor General (OSG),
on September 3, 1996, filed a complaint for revocation,
annulment and cancellation of certificates of title in behalf of the
Republic of the Philippines (as represented by the LRA) against
respondent and Alfonso Concepcion. It was raffled to Branch 114
of the Regional Trial Court of Pasay City where it was docketed
as Civil Case No. 96-1144.
On December 5, 1996, respondent filed its answer which was
purportedly signed by Atty. Onofre Garlitos, Jr. as counsel for
respondent.
Since Alfonso Concepcion could not be located and served with
summons, the trial court ordered the issuance of an alias
summons by publication against him on February 19, 1997.

EVIDENCE

During the congressional hearing held on November 26, 1998,

one of those summoned was Atty. Garlitos, respondents former
counsel. He testified that he prepared respondents answer and
transmitted an unsigned draft to respondents president, Mr.
Victor Ong. The signature appearing above his name was not
his. He authorized no one to sign in his behalf either. And he did
not know who finally signed it.
With Atty. Garlitos revelation, the Republic promptly filed an
urgent motion on December 3, 1998 to declare respondent in
default, 2 predicated on its failure to file a valid answer. The
Republic argued that, since the person who signed the answer
was neither authorized by Atty. Garlitos nor even known to him,
the answer was effectively an unsigned pleading. Pursuant to
Section 3, Rule 7 of the Rules of Court, 3 it was a mere scrap of
paper and produced no legal effect.
On February 19, 1999, the trial court issued a resolution
granting the Republics motion. 4 It found respondents answer
to be sham and false and intended to defeat the purpose of the
rules. The trial court ordered the answer stricken from the
records, declared respondent in default and allowed the Republic
to present its evidence ex parte.
The Republic presented its evidence ex parte, after which it
rested its case and formally offered its evidence.
Meanwhile, respondent sought reconsideration of the February
19, 1999 resolution but the trial court denied it.
Aggrieved, respondent elevated the matter to the Court of
Appeals via a petition for certiorari 5 seeking to set aside the
February 19, 1999 resolution of the trial court. Respondent
contended that the trial court erred in declaring it in default for
failure to file a valid and timely answer.
On May 31, 2001, the Court of Appeals rendered the assailed
decision. It found Atty. Garlitos statements in the legislative
hearing to be unreliable since they were not subjected to crossexamination. The appellate court also scrutinized Atty. Garlitos
acts after the filing of the answer 6 and concluded that he
assented to the signing of the answer by somebody in his stead.
This supposedly cured whatever defect the answer may have
had. Hence, the appellate court granted respondents petition for
certiorari. It directed the lifting of the order of default against
respondent and ordered the trial court to proceed to trial with
dispatch. The Republic moved for reconsideration but it was
denied. Thus, this petition.
Did the Court of Appeals err in reversing the trial courts order
which declared respondent in default for its failure to file a valid
answer? Yes, it did.

AGUSTIN, E.P. | 84

A party may, by his words or conduct, voluntarily adopt or ratify

anothers statement. 7 Where it appears that a party clearly and
unambiguously assented to or adopted the statements of
another, evidence of those statements is admissible against him.
8
This is the essence of the principle of adoptive admission.
An adoptive admission is a partys reaction to a statement or
action by another person when it is reasonable to treat the
partys reaction as an admission of something stated or implied
by the other person. 9 By adoptive admission, a third persons
statement becomes the admission of the party embracing or
espousing it. Adoptive admission may occur when a party:
(a) expressly agrees to or concurs in an oral statement made by
another; 10
(b) hears a statement and later on essentially repeats it;

11

(c) utters an acceptance or builds upon the assertion of another;

12

(d) replies by way of rebuttal to some specific points raised by

another but ignores further points which he or she has heard the
other make 13 or
(e) reads and signs a written statement made by another.
Here, respondent accepted the pronouncements
and built its case on them. At no instance did
contradict its former counsels statements. It
lengths to explain Atty. Garlitos testimony
implications, as follows:

14

of Atty. Garlitos
it ever deny or
went to great
as well as its

1. While Atty. Garlitos denied signing the answer, the fact was
that the answer was signed. Hence, the pleading could not be
considered invalid for being an unsigned pleading. The fact that
the person who signed it was neither known to Atty. Garlitos nor
specifically authorized by him was immaterial. The important
thing was that the answer bore a signature.
2. While the Rules of Court requires that a pleading must be
signed by the party or his counsel, it does not prohibit a counsel
from giving a general authority for any person to sign the
answer for him which was what Atty. Garlitos did. The person
who actually signed the pleading was of no moment as long as
counsel knew that it would be signed by another. This was
similar to addressing an authorization letter "to whom it may
concern" such that any person could act on it even if he or she
was not known beforehand.
3. Atty. Garlitos testified that he prepared the answer; he never
disowned its contents and he resumed acting as counsel for
respondent subsequent to its filing. These circumstances show
that Atty. Garlitos conformed to or ratified the signing of the
answer by another.
Respondent repeated these statements of Atty. Garlitos in its
motion for reconsideration of the trial courts February 19, 1999
resolution. And again in the petition it filed in the Court of
Appeals as well as in the comment 15 and memorandum it
submitted to this Court.
Evidently, respondent completely adopted Atty. Garlitos
statements as its own. Respondents adoptive admission
constituted a judicial admission which was conclusive on it.

EVIDENCE

Contrary to respondents position, a signed pleading is one that

is signed either by the party himself or his counsel. Section 3,
Rule 7 is clear on this matter. It requires that a pleading must be
signed by the party or counsel representing him.
Therefore, only the signature of either the party himself or his
counsel operates to validly convert a pleading from one that is
unsigned to one that is signed.
Counsels authority and duty to sign a pleading are personal to
him. He may not delegate it to just any person.
The signature of counsel constitutes an assurance by him that
he has read the pleading; that, to the best of his knowledge,
information and belief, there is a good ground to support it; and
that it is not interposed for delay. 16 Under the Rules of Court, it
is counsel alone, by affixing his signature, who can certify to
these matters.
The preparation and signing of a pleading constitute legal work
involving practice of law which is reserved exclusively for the
members of the legal profession. Counsel may delegate the
signing of a pleading to another lawyer 17 but cannot do so
in favor of one who is not. The Code of Professional
Responsibility provides:
Rule 9.01 A lawyer shall not delegate to any unqualified
person the performance of any task which by law may only be
performed by a member of the Bar in good standing.
Moreover, a signature by agents of a lawyer amounts to signing
by unqualified persons, 18 something the law strongly proscribes.
Therefore, the blanket authority respondent claims Atty. Garlitos
entrusted to just anyone was void. Any act taken pursuant to
that authority was likewise void. There was no way it could have
been cured or ratified by Atty. Garlitos subsequent acts.
Moreover, the transcript of the November 26, 1998 Senate
hearing shows that Atty. Garlitos consented to the signing of the
answer by another "as long as it conformed to his draft." We
give no value whatsoever to such self-serving statement.
No doubt, Atty. Garlitos could not have validly given blanket
authority for just anyone to sign the answer. The trial court
correctly ruled that respondents answer was invalid and of no
legal effect as it was an unsigned pleading. Respondent was
properly declared in default and the Republic was rightly allowed
to present evidence ex parte.
Respondent insists on the liberal application of the rules. It
maintains that even if it were true that its answer was
supposedly an unsigned pleading, the defect was a mere
technicality that could be set aside.
Procedural requirements which have often been disparagingly
labeled as mere technicalities have their own valid raison d etre
in the orderly administration of justice. To summarily brush them
aside may result in arbitrariness and injustice. 19
The Courts pronouncement in Garbo v. Court of Appeals
relevant:

20

is

AGUSTIN, E.P. | 85

Procedural rules are [tools] designed to facilitate the

adjudication of cases. Courts and litigants alike are thus
[enjoined] to abide strictly by the rules. And while the Court, in
some instances, allows a relaxation in the application of the
rules, this, we stress, was never intended to forge a bastion for
erring litigants to violate the rules with impunity. The liberality in
the interpretation and application of the rules applies only in
proper cases and under justifiable causes and circumstances.
While it is true that litigation is not a game of technicalities, it is
equally true that every case must be prosecuted in accordance
with the prescribed procedure to insure an orderly and speedy
administration of justice.
Like all rules, procedural rules should be followed except only
when, for the most persuasive of reasons, they may be relaxed
to relieve a litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying with the
prescribed procedure. 21 In this case, respondent failed to show
any persuasive reason why it should be exempted from strictly
abiding by the rules.
As a final note, the Court cannot close its eyes to the acts
committed by Atty. Garlitos in violation of the ethics of the legal
profession. Thus, he should be made to account for his possible
misconduct.
WHEREFORE, the petition is hereby GRANTED. The May 31,
2001 decision and August 20, 2001 resolution of the Court of
Appeals in CA-G.R. SP No. 52948 are REVERSED and SET
ASIDE and the February 19, 1999 resolution of the Regional
Trial Court of Pasay City, Branch 114 declaring respondent in
default is hereby REINSTATED.
Let a copy of this decision be furnished the Commission on Bar
Discipline of the Integrated Bar of the Philippines for the
commencement of disbarment proceedings against Atty. Onofre
Garlitos, Jr. for his possible unprofessional conduct not befitting
his position as an officer of the court.
SO ORDERED.
RENATO C. CORONA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 86

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157221

March 30, 2007

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CESAR GALVEZ, Appellant.
DECISION

did not recognize them nor the firearms they were carrying
because they were about nine meters from Galvez.6
Galvez put up denial and alibi as his defenses. He testified that
he was staying at his father-in-laws house on July 27, 1991 and
drank tuba at around 10:30 p.m. at a nearby store. He went
home and slept with his wife soon after.7 To corroborate his
testimony, he presented SPO2 Danilo Ramillano, a visitor at his
father-in-laws house and Wilhelmina Espinosa, a sari-sari store
owner. 8 He also presented Athena Elisa Anderson, Document
Examiner and Forensic Analyst of the PNP Crime Laboratory of
Region 9, Zamboanga City, who testified that the paraffin test
conducted on both his hands showed that there was no nitrate
present;9 and Police Inspector Lemuel Caser, Ballistic Examiner,
who testified that the shells found at the scene of the crime
were not fired from the firearm issued to Galvez.10

AUSTRIA-MARTINEZ, J.:
For review before this Court is the Decision1 of the Court of
Appeals (CA) in CA-G.R. CR No. 18255 dated March 30, 2001,
which affirmed the Decision2 of the Regional Trial Court (RTC)
Isabela, Basilan finding the accused-appellant Cesar Galvez
(Galvez), guilty of Murder, but modifying the penalty of the RTC
from a sentence of "seventeen (17) years, four (4) months and
one (1) day as minimum to twenty (20) years as maximum" to
reclusion perpetua.
The facts are as follows:
At around 11 oclock in the evening of July 27, 1991, Danilo
Perez, Rosalio Enojarda, Noel Cugal, Ricardo Francisco and
Wilfredo Rellios, took a break from making copra to eat leftover
dinner inside the copra kiln in the farm of Perez in Matarling,
Lantawan, Basilan. When Enojarda stood up from the circle
where they were eating to drink water, shots rang out and
Enojarda fell to the ground shouting "Dan ya tupa comigo" (Dan,
I am hit). The rest of the group took cover, crawling to different
directions. After the attack, Rellios reported the incident to the
barangay captain and they brought Enojardas dead body to his
family.3
On May 28, 1992, an Information was filed against Cesar Galvez
(Galvez), a member of the Philippine National Police (PNP) for
Murder, which reads:
That on or about the 27th day of July, 1991, and within the
jurisdiction of this Honorable Court, viz. at Matarling,
Municipality of Lantawan, Province of Basilan, Philippines, the
above named accused, armed with an M16 armalite rifle, with
treachery and evident premeditation, and with intent to kill, did
then and there willfully, unlawfully and feloniously assault, attack
and shoot one Rosalio Enojarda with the said M16 armalite rifle,
thereby inflicting gunshot wound on the body of the latter which
caused his death.4

After trial, the RTC rendered its Decision dated February 27,
1995 with the following findings:
From the foregoing facts as well as from the records of this case,
this Court finds the following facts to be undisputable, to wit:
1) That at the late night of July 27, 1991, Rosalio
Enojarda, while making copra in the coconut land of
Danilo Perez at Matarling, Lantawan, Basilan, was
shot to death by one of the four (4) men. How many
gunshot wounds he suffered and what part of his
body was hit by the gunfire, the evidence is found
wanting.
2) That a day before the incident and on the date of
the incident which was July 27, 1991, the accused
Cesar Galvez has not fired any firearms.
xxx
3) That the five (5) empty shells of armalite
rifleallegedly found by Barangay Captain Inocente
Manicap from the scene of the crime and later turned
over to PFC Samuel Omoso, the Police Investigator of
this case, did not come from the M16 armalite rifle
with Serial No. 117460, the gun issued to the accused
Cesar Galvez. (citations omitted).11
Further, the trial court found that the testimonies of the
prosecution witnesses, Rellios and Perez, were credible and
trustworthy as there was no motive to perjure themselves; that
the testimony of defense witness SPO2 Ramillano was full of
loopholes; and that the testimony of the store owner was
insufficient to disprove the presence of the accused at the scene
of the crime.12
The RTC concluded:

The prosecution presented evidence showing that: after

Enojarda fell, the rest of the group took cover and Rellios while
in a crawling position, saw Galvez about 5 meters away holding
an armalite rifle and firing at their direction; Rellios also saw that
Galvez had companions but did not recognize them as well as
the firearms they carried because they were approximately nine
meters away;5 Perez, also crawled and hid in the bushes about 5
meters away; when the firing stopped, one of the attackers
passed by about two meters from where Perez was hiding and
because the moon was bright, he recognized Galvez, his cousin,
who was wearing a fatigue uniform and armed with an armalite
rifle; he also saw that Galvez had three armed companions but

EVIDENCE

xxx since this accused, Cesar Galvez, has not fired his M16
armalite rifle on that night of July 27, 1991, and those five (5)
empty shells were not fired from his armalite, then xxx the
bullet that hit and instantly killed Rosalio Enojarda on
that night of July 27, 1991 at the copra kiln of Danilo
Perez came from the gun fired by any of the three (3)
unidentified persons who were the companions of the
accused, Cesar Galvez at the night of the incident xxx.13
(emphasis supplied)

AGUSTIN, E.P. | 87

Despite the fact that the Information failed to allege conspiracy

and the aggravating circumstances of nocturnity and armed
band, the RTC still convicted Galvez of murder based on
conspiracy since Galvez was seen by two witnesses at the scene
of the crime carrying a firearm together with his unidentified
armed companions.14 The trial court also held that the offer of
Galvez to have the case settled out of court is an indication of
his guilt.15
The RTC then disposed of the case as follows:
WHEREFORE, all factual and circumstantial matters surrounding
the commission of the crime, being carefully and meticulously
examined and studied, this Court finds the accused SPO2 Cesar
Galvez, a member of the Philippine National Police GUILTY
beyond reasonable doubt as principal in committing the crime of
Murder as alleged in the Information and which crime is defined
and penalized under Art. 248 of the Revised Penal Code, but
considering his good military records after the commission of the
crime, hereby sentences him to suffer an imprisonment of
SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
as minimum, to TWENTY (20) YEARS as maximum, which is the
minimum period of Reclusion Temporal in its maximum period to
death. And to indemnify the heirs of the late Rosalio Enojarda,
the amount of P50,000.00 as moral damages and to pay the
Court the amount of P500.00 as judicial costs and other
accessory penalties attached to the penalty of Reclusion
Temporal.
And further this accused is hereby stripped of all the military
ranks he now hold [sic] in the Armed Forces of the Philippines.
And upon the promulgation of this decision, the accused shall
immediately be committed to the Provincial Jail where the
Provincial Warden is directed to immediately transfer him to the
National Penitentiary at San Ramon Penal Colony at Zamboanga
City for commitment thereat.
And the property bail bond he has posted for his provisional
liberty is hereby ordered cancelled and its pertinent papers
returned, upon receipt to the bondsman.16
Galvez appealed the case to the CA, docketed as CA-G.R. CR No.
18255, which rendered its Decision on March 30, 2001 affirming
his guilt but modifying the penalty to be imposed, thus:
WHEREFORE, with the MODIFICATION that appellant CESAR
GALVEZ is hereby sentenced to reclusion perpetua, the decision
appealed from is hereby AFFIRMED in all other respects.17
The CA held that the RTC erred in holding Galvez criminally
liable based on conspiracy when such fact was not alleged in the
Information. However, it still found Galvez guilty of Murder.18
The CA reasoned that: the negative results of the paraffin and
ballistic tests do not negate the possibility that Galvez used
another gun in shooting the victim; the eyewitnesses of the
prosecution identified Galvez as the perpetrator if not one of the
perpetrators of the crime; alibi, which was offered by Galvez, is
the weakest of all defenses and cannot prevail over positive
identification; the offer of Galvez to the wife of the victim to
have the case settled is also a strong indication of Galvezs
culpability; and treachery was adequately established as the
attack was sudden, unexpected and did not accord the victim an
opportunity to defend himself.19 The CA further held that since
there was no mitigating circumstance, the proper penalty should
be reclusion perpetua.20

EVIDENCE

Galvez filed a Motion for Reconsideration21 which the CA denied

in its Resolution dated August 21, 2001, stating that it was a
mere rehash of the arguments already addressed in the
decision.22
The entire records of the case were forwarded to this Court
pursuant to Section 13, Rule 124 of the Rules of Criminal
Procedure. On April 8, 2003, the Court issued a Resolution23
accepting the case; committing the accused to the Davao Prison
and Penal Farm; and informing the accused and the Solicitor
General that they may file additional briefs with this Court.24
In his Appellants Brief, Galvez argued that the trial court erred:
I
IN HOLDING THAT (HE) THE ACCUSED-APPELLANT IS LIABLE
FOR MURDER FOR THE DEATH OF ROSALIO ENOJARDA ON
JULY 27, 1991 DESPITE ITS EXPRESS FINDINGS THAT THE
ACCUSED-APPELLANT DID NOT FIRE HIS RIFLE ON THAT FATAL
NIGHT AND THAT THE BULLET THAT HIT AND KILLED ROSALIO
ENOJARDA COULD HAVE BEEN FIRED FROM ANY OF THE GUNS
OR RIFLES BELONGING TO ANY OF THE THREE UNIDENTIFIED
PERSONS WHO WERE NOT CHARGED NOR INDICTED
TOGETHER WITH THE ACCUSED IN THE SAME CRIMINAL
INFORMATION IN QUESTION.
II
IN HOLDING THAT DANILO PEREZ AND WILFREDO RELLIOS,
WHILE IN CRAWLING POSITION WHOSE CHESTS WERE
ALMOST TOUCHING THE GROUND AND UNDER CONDITIONS
DESCRIBED BY THEM, HAD SEEN THE ACCUSED-APPELLANT
ARMED WITH M16 ARMALITE RIFLE IN THE NIGHTIME, OF 27
JULY 1991 DESPITE DANILO PEREZ [sic] POSITIVE ASSERTION
THAT IT WAS IMPOSSIBLE OF HIS (SIC) TO IDENTIFY THE
ACCUSED WHEN ASKED TO DEMONSTRATE IN OPEN COURT IN
THE MANNER AND CIRCUMSTANCE NARRATED BY HIM.25
In his Supplemental Appellants Brief, Galvez further claims that
it was seriously erroneous:
I.
TO CONCLUDE THAT THERE WAS CONSPIRACY BETWEEN
ACCUSED-APPELLANT AND THE OTHER MALEFACTORS NOT
INCLUDED IN THE PRESENT CASE.
II.
TO BE SELECTIVE IN APPRECIATING MATTERS NOT
INCLUDED IN THE INFORMATION, MORE SO THE THEORY OF
CONSPIRACY AGAINST ACCUSED-APPELLANT, THERE BEING NO
OTHER PERSONS CHARGED IN THE PRESENT CASE.
III.
TO FIND THE ACCUSED-APPELLANT GUILTY OF MURDER
UNDER CIRCUMSTANCES FAR DIFFERENT FROM THE
INFORMATION, IN EFFECT DENYING ACCUSED-APPELLANT
[THE] RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF ACCUSATION AGAINST HIM.

AGUSTIN, E.P. | 88

IV.
TO GIVE CREDENCE TO THE TESTIMONIES OF THE TWO
ALLEGED EYE WITNESSES WHOSE DECLARATIONS WERE
CLEARLY BELIED DURING THEIR CROSS EXAMINATION.
V.
NOT TO CONSIDER THE DEFENSE OF ALIBI OF ACCUSEDAPPELLANT.

greater credence; the trial court correctly convicted Galvez of

murder as there was treachery since the victim was not in a
position to defend himself from the attack of the accused; the
proper penalty should be reclusion perpetua under Art. 248 of
the Revised Penal Code as there was no mitigating
circumstance;31 Galvez is also liable for temperate damages of
P25,000.00 since pecuniary loss has been suffered although its
exact amount could not be determined, and exemplary damages
of P25,000.00 due to the presence of the qualifying
circumstance of treachery; the amount of P50,000.00 as civil
indemnity should also be awarded to the heirs of the victim
together with the P50,000.00 awarded by the trial court for
moral damages.32

VI.
TO MAKE UNSUBSTANTIATED, BASELESS PRESUMPTIONS
AND CONCLUSIONS IN A CRIMINAL CASE WHERE THE
INNOCENCE OF THE ACCUSED IS PRESUMED.26
Galvez also filed an Addendum to Supplemental Appellants Brief
adding that:
VII
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
DISREGARDING THE RESULTS OF THE PARAFFIN AND
BALLISTIC TESTS AND IN ASSUMING THAT THE ACCUSEDAPPELLANT SHOT THE DECEASED USING AN M16 RIFLE OTHER
THAN THE ONE ISSUED TO HIM.27
Galvez contends that: the degree of proof required in criminal
cases is proof beyond reasonable doubt because an accused is
always presumed to be innocent unless proven otherwise;28
when circumstances yield two or more inferences, one of which
is consistent with the presumption of innocence and the other
compatible with the finding of guilt, the court must side with that
which will acquit the accused; in this case, the RTC found
undisputed the fact that he did not shoot the victim on the night
of July 27, 1991 and the firearm that was used in killing the
victim was owned and possessed by another man, as shown by
the negative results of the paraffin and ballistic tests; the
statement of Danilo Perez that he saw the accused on the night
of July 27, 1991 is not credible since Perez was in a crawling
position with his chest almost touching the ground at the time
he allegedly saw the accused; Judge Memoracion, who penned
the decision could not have assessed the demeanor of the
prosecution witnesses while testifying as it was another judge
who heard and received their testimonies;29 the two defense
witnesses, who corroborated his (Galvezs) alibi are unbiased
and unrelated to him; while alibi is the weakest defense, it is the
only defense if it is the truth and it assumes importance where
the prosecution evidence is weak; the statement of the trial
court that the offer of the accused to have the case extrajudicially settled is a tacit admission of guilt is also
unsubstantiated as there is nothing in the records that shows
that the accused made an offer to settle the case out of court.30
For the plaintiff-appellee, the Solicitor General argued that: the
paraffin test and the ballistic examination are not conclusive
proof that Galvez did not fire a gun during the incident; in this
case, the paraffin test was conducted on Galvez two days from
the date of the incident; Galvez was also positively identified by
the prosecution witnesses as one of four armed men who
attacked them during the incident; Perez clarified that while he
was in a crawling position, he was looking upward, thus, he was
able to identify Galvez; between Galvezs alibi and the positive
declarations of witnesses whose testimonies have not been
assailed nor discredited by improper motive, the latter deserves

EVIDENCE

After reviewing the entire records of the case, the Court resolves
to acquit Galvez.
Conspiracy must be alleged in the information in order that an
accused may be held liable for the acts of his co-accused. In the
absence of any averment of conspiracy in the information, an
accused can only be made liable for the acts committed by him
alone and such criminal responsibility is individual and not
collective.33
As explained in People v. Tampis,34
The rule is that conspiracy must be alleged, not merely inferred,
in the information. Absence of a particular statement in the
accusatory portion of the charge sheet concerning any definitive
act constituting conspiracy renders the indictment insufficient to
hold one accused liable for the individual acts of his co-accused.
Thus, each of them would be held accountable only for their
respective participation in the commission of the offense.35
The rationale for this rule has long been settled. In People v.
Quitlong, the Court explained:
Overwhelming, such as it may have been thought of by the trial
court, evidence of conspiracy is not enough for an accused to
bear and respond to all its grave legal consequences; it is
equally essential that such accused has been apprised when the
charge is made conformably with prevailing substantive and
procedural requirements. Article III, Section 14, of the 1987
Constitution, in particular, mandates that no person shall be held
answerable for a criminal offense without due process of law and
that in all criminal prosecutions the accused shall first be
informed of the nature and cause of the accusation against him.
The right to be informed of any such indictment is likewise
explicit in procedural rules. x x x
xxx
x x x Quite unlike the omission of an ordinary recital of fact
which, if not excepted from or objected to during trial, may be
corrected or supplied by competent proof, an allegation,
however, of conspiracy, or one that would impute criminal
liability to an accused for the act of another or others, is
indispensable in order to hold such person, regardless of the
nature and extent of his own participation, equally guilty with
the other or others in the commission of the crime. Where
conspiracy exists and can rightly be appreciated, the individual
acts done to perpetrate the felony becomes of secondary
importance, the act of one being imputable to all the others.
Verily, an accused must know from the information whether he
faces a criminal responsibility not only for his acts but also for
the acts of his co-accused as well.36

AGUSTIN, E.P. | 89

Since conspiracy was not alleged in the Information in this case,

it is imperative that the prosecution prove Galvezs direct
participation in the killing of the victim. This, the prosecution
failed to do.
The CA, in holding Galvez guilty of Murder, gave weight to the
testimonies of the prosecution witnesses Rellios and Perez that
they saw Galvez fire an armalite rifle in their direction on the
night in question. The positive identification of these witnesses,
the CA ruled, has more weight than the negative results of the
paraffin and ballistic tests.37
We disagree.
The prosecution witnesses never actually saw Galvez shoot the
victim. While this Court does not ordinarily interfere with the
findings of the lower courts on the trustworthiness of witnesses,
when there appears on the records, however, facts and
circumstances of real weight which might have been overlooked
or misapprehended, this Court cannot shirk from its duty to
render the law and apply justice.38

COURT:
After you heard the shots how long after you saw him passed
by?
xxx
Q: Was it 30 minutes after?
xxx
A: In my own estimate about 20 to 25 minutes.
Q: In other words more or less you saw him (accused) passed
by together with his companions around 20 to 25 minutes after
you heard the shots, is that what you want to impress this
Court?
A: Yes, Your Honor.

During his direct examination, Perez testified as follows:

xxx

Q: While you were eating your merienda at about 11:00 oclock

in the evening on July 27, 1991 what happened?

Q: Did you see him really shoot?

A: Suddenly we heard shots and we could not determine

where it came from and one of our companion was hit.
Q: Do you know who was that companion of yours who was hit?
A: Yes, Rosalio Enojarda.

A: No, Your Honor.

39

(Emphasis supplied)

During his cross-examination, Perez further testified:

Q: So, when you said the explosions came from different
directions, was not true?

xxx

A: We heard shots but we do not know where it came

from, what we did was to drop and crawl.

Q: After you heard the gun fire which hit your companion
Rosalio Enojarda, what did you do?

COURT: (To the witness)

A: I dropped and crawled, sir.

You did not see the one firing?

Yes, your Honor, because I crawled.

xxx
Q: And then did the gunfire stop after you hid yourself among
the grasses?

Q: And how many minutes after you heard firings you saw this
accused and companions pass by?

A: Yes sir.

A: I am not sure Your Honor about the exact time but I think it
has about 20 to 25 minutes.40

Q: What happened after the firings stopped, when you were

already hiding among the grasses?

xxx

A: I recognized the culprit sir because he passed by where I was

hiding about two meters from me.
Q: You said you recognized the culprit when he passed by where
you were hiding, who was that culprit?
A: Cesar Galvez, sir.
xxx

EVIDENCE

Q: Mr. Perez, you did not see the accused shot at Mr.
Enojarda?
A: No sir.41 (Emphasis supplied).
Rellios also admitted during his cross-examination the following:
Q: You did not actually see Mr. Galvez shoot at Mr.
Enojarda?

AGUSTIN, E.P. | 90

A: No sir.
COURT: (To the witness)

(a) Both Perez and Rellios testified that they saw

Galvez with three other armed companions minutes
after Enojarda was shot but they did not testify that
they saw him in the vicinity before the shooting of
Enojarda.46

In other words you were only presuming that it was him.

(b) Perez testified that only one shot hit Enojarda.47
A: No, Your Honor, I saw him.
ATTY. MARTIN: (Continuing)
Did you understand the question when you were asked
by the Court. Since you did not actually see Mr. Galvez
shoot at the victim, and reportedly you saw him only five
minutes thereafter, you only presume Mr. Galvez to have
shoot Mr. Enojarda?
A: Yes sir.42 (Emphasis supplied)
Based on the above testimonies, the following circumstances
appear to have been established: (1) at around 11 p.m.,
Enojarda, Rellios, Perez, and their two companions were eating
merienda near the copra kiln when they were sprayed with
gunfire; (2) Enojarda was fatally hit and fell on the ground; (3)
Rellios, Perez and their two companions ducked and crawled to
seek cover; (4) about five minutes after the first burst of gunfire,
Galvez, armed with an M16 armalite rifle, was seen firing at
Rellios, Perez and their two companions as well as in the
direction of the copra kiln; and (5) about 20 to 25 minutes after
the first burst of gunfire, Galvez was again seen clad in fatigue
uniform and carrying an M16 armalite rifle along with three
armed companions, after which, their group left the scene of the
crime.
However, these circumstances are not sufficient to establish the
guilt of Galvez beyond reasonable doubt.
It is well to emphasize the four basic guidelines that must be
observed in assaying the probative value of circumstantial
evidence:
x x x (a) It should be acted upon with caution; (b) All the
essential facts must be consistent with the hypothesis of guilt;
(c) The facts must exclude every other theory but that of guilt of
the accused; and, (d) The facts must establish with certainty the
guilt of the accused as to convince beyond reasonable doubt
that he was the perpetrator of the offense. The peculiarity of
circumstantial evidence is that the series of events pointing to
the commission of a felony is appreciated not singly but
collectively. The guilt of the accused cannot be deduced from
scrutinizing just one (1) particular piece of evidence. It is more
like a puzzle which when put together reveals a convincing
picture pointing to the conclusion that the accused is the author
of the crime.43
as well as the doctrines enunciated by the Court that the
prosecution must establish beyond reasonable doubt every
circumstance essential to the guilt of the accused;44 and that
every circumstance or doubt favoring the innocence of the
accused must be duly taken into account.45
The "incriminating circumstances" enumerated above are mainly
based on the testimonies of prosecution witnesses Perez and
Rellios. A perusal of said testimonies reveals, however, other
circumstances that should be appreciated in favor of Galvez, to
wit:

EVIDENCE

(c) Perez testified that he did not see Galvez shoot at

Enojarda and that he merely assumed that Galvez
was the one who shot the victim when the latter
passed by him.48 Rellios testified that he only
presumed that Galvez shot at Enojarda.49
(d) Perez testified that he had no misunderstanding
with Galvez50 and that he does not know any motive
why Enojarda was killed.51
In considering both favorable and "incriminating" circumstances
for or against Galvez, the following must always be borne in
mind: that the Information charged Galvez as the sole
perpetrator of the crime of Murder; that the three other armed
men were not included as John Does; and that there was no
allegation of conspiracy in the Information.
Consequently, it was incumbent upon the prosecution to prove
that Galvez was the sole author of the shot that killed Enojarda.
The "incriminating circumstances" do not point to Galvez as the
sole perpetrator of the crime. The presence of the three armed
men raises the probability that any one of those men inflicted
the fatal shot. It must be stressed that the prosecution witnesses
merely presumed that it was Galvez who shot Enojarda.
Moreover, the fact that Galvez was seen minutes after Enojarda
was shot does not sufficiently establish that Galvez was the one
who shot Enojarda. There is no evidence that Galvez was seen
or was together with the three other armed men when Enojarda
was hit. There is a missing link that precludes the Court from
concluding that it was Galvez who shot Enojarda.52 It cannot be
said therefore that there was positive identification of Galvez
through circumstantial evidence.
In People v. Comendador,53 the Court held:
While no general rule can be laid down as to the quantity of
circumstantial evidence which will suffice in a given case, all the
circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty,
and at the same time inconsistent with the hypothesis
that he is innocent, and with every other rational
hypothesis except that of guilt. The circumstances proved
should constitute an unbroken chain which leads to one fair and
reasonable conclusion which points to the accused, to the
exclusion of all others as the guilty person.54 (Emphasis
supplied)
And in Dela Cruz v. People,55 the Court stressed, thus:
To emphasize, the foundation of the ruling of acquittal is
reasonable doubt, which simply means that the prosecutions
evidence was not sufficient to sustain the guilt of the accusedpetitioner beyond the point of moral certainty certainty that
convinces and satisfies the reason and the conscience of those
who are to act upon it. It is such proof to the satisfaction of the
court, keeping in mind the presumption of innocence, as
precludes every reasonable hypothesis except that which it is

AGUSTIN, E.P. | 91

given to support it. An acquittal based on reasonable doubt

will prosper even though the accuseds innocence may
be doubted, for a criminal conviction rests on the
strength of the evidence of the prosecution and not on
the weakness of the defense. And, if the inculpatory
facts and circumstances are capable of two or more
explanations, one of which is consistent with the
innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of
moral certainty and is not sufficient to support a
conviction, and, thus, that which is favorable to the
accused should be considered.56 (Emphasis supplied).
And when the evidence on the commission of the crime is purely
circumstantial or inconclusive, motive is vital. As held in
Crisostomo v. Sandiganbayan,57
Motive is generally held to be immaterial because it is not an
element of the crime. However, motive becomes important when
the evidence on the commission of the crime is purely
circumstantial or inconclusive. Motive is thus vital in this case.58
In this case, prosecution witness Perez testified that he did not
know of any motive on the part of Galvez to kill Enojarda.59 This
is a circumstance that should be taken in favor of Galvez.
In line with the ruling of the Court in Torralba v. People,60 to wit:
Time and again, this Court has faithfully observed and given
effect to the constitutional presumption of innocence which can
only be overcome by contrary proof beyond reasonable doubt
one which requires moral certainty, a certainty that convinces
and satisfies the reason and conscience of those who are to act
upon it. As we have so stated in the past
Accusation is not, according to the fundamental law,
synonymous with guilt, the prosecution must overthrow the
presumption of innocence with proof of guilt beyond reasonable
doubt. To meet this standard, there is need for the most careful
scrutiny of the testimony of the State, both oral and
documentary, independently of whatever defense is offered by
the accused. Only if the judge below and the appellate
tribunal could arrive at a conclusion that the crime had
been committed precisely by the person on trial under
such an exacting test should the sentence be one of
conviction. It is thus required that every circumstance
favoring innocence be duly taken into account. The proof
against him must survive the test of reason; the
strongest suspicion must not be permitted to sway
judgment.61 (Emphasis supplied)
There could not be any doubt that the facts, as established by
the circumstantial evidence, failed to exclude the possibility that
another person shot Enojarda. There were three other armed
men, any one of whom could be the culprit.
When a crime is committed, it is the duty of the prosecution to
prove the identity of the perpetrator of the crime beyond
reasonable doubt for there can be no conviction even if the
commission of the crime is established.62 Indeed, the State,
aside from showing the existence of a crime, has the burden of
correctly identifying the author of such crime.63 Both facts must
be proved by the State beyond reasonable doubt on the strength
of its evidence and without solace from the weakness of the
defense.64

EVIDENCE

Galvez correctly pointed out in his supplemental brief before this

Court that it was erroneous for the CA to have affirmed the RTC
ruling that Galvezs offer to the victims wife to settle the case is
a tacit admission of guilt.65
While the Court agrees that in criminal cases, an offer of
compromise by the accused may be received in evidence as an
implied admission of guilt,66 such principle is not applicable in
this case.
The only basis of the RTC in concluding that Galvez made on
offer of compromise,67 is the March 3, 1993 Order of the RTC
which reads as follows:
Considering that the accused as well as his Counsel, Atty.
Bienvenido G. Martin appeared in Court together with Rosaflor
Enojarda, the wife of the victim, and manifested that there is a
possibility of understanding and settlement between the parties,
the above-entitled case is hereby reset for new assignment.68
Galvezs supposed offer of compromise was not formally offered
and admitted as evidence during the trial. The victims widow or
any prosecution witness did not testify on any offer of
compromise made by Galvez. We have held that when the
evidence on the alleged offer of compromise is amorphous, the
same shall not benefit the prosecution in its case against the
accused.69
The Court also recognizes that there may be instances when an
offer of compromise will not amount to an admission of guilt.
Thus, in People v. Godoy,70 the Court pronounced that:
In criminal cases, an offer of compromise is generally
admissible as evidence against the party making it. It is a legal
maxim, which assuredly constitutes one of the bases of the right
to penalize, that in the matter of public crimes which directly
affect the public interest, no compromise whatever may be
entered into as regards the penal action. It has long been
held, however, that in such cases the accused is
permitted to show that the offer was not made under a
consciousness of guilt, but merely to avoid the
inconvenience of imprisonment or for some other reason
which would justify a claim by the accused that the offer
to compromise was not in truth an admission of guilt or
an attempt to avoid the legal consequences which would
ordinarily ensue therefrom.71 (Emphasis supplied).
As the alleged offer of compromise was not presented in court, it
was not shown that Galvez indeed made such an offer under the
consciousness of guilt. Galvez was not given the opportunity to
explain that it was given for some other reason that would
justify a claim that it was not an admission of guilt or an attempt
to avoid its legal consequences.
In this case, the presumption of innocence of Galvez prevails
over the alleged implied admission of guilt. In Godoy, the Court,
in acquitting the accused, explained that:
It frequently happens that in a particular case two or more
presumptions are involved. Sometimes the presumptions
conflict, one tending to demonstrate the guilt of the accused and
the other his innocence. In such case, it is necessary to examine
the basis for each presumption and determine what logical or
social basis exists for each presumption, and then determine
which should be regarded as the more important and entitled to
prevail over the other. It must, however, be remembered that

AGUSTIN, E.P. | 92

the existence of a presumption indicating his guilt does not in

itself destroy the presumption against innocence unless the
inculpating presumption, together with all the evidence, or the
lack of any evidence or explanation, is sufficient to overcome the
presumption of innocence by proving the defendants guilt
beyond a reasonable doubt. Until the defendants guilt is shown
in this manner, the presumption of innocence continues.72
xxx
The presumption of innocence, x x x is founded upon the first
principles of justice, and is not a mere form but a substantial
part of the law. It is not overcome by mere suspicion or
conjecture; a probability that the defendant committed the
crime; nor by the fact that he had the opportunity to do so. Its
purpose is to balance the scales in what would otherwise be an
uneven contest between the lone individual pitted against the
People and all the resources at their command. Its inexorable
mandate is that, for all the authority and influence of the
prosecution, the accused must be acquitted and set free if his
guilt cannot be proved beyond the whisper of a doubt. This is in
consonance with the rule that conflicts in evidence must be
resolved upon the theory of innocence rather than upon a theory
of guilt when it is possible to do so.73
Thus, taking into account all the circumstances in favor of
Galvez, there could not be a moral certainty as to the guilt of
Galvez. The prosecution has not proven the guilt of Galvez
beyond reasonable doubt.
It may be pointed out that the following circumstances support
the conviction of Galvez as charged:
(a) the negative findings of the paraffin and ballistic
tests do not prove that Galvez did not fire a gun;
(b) Galvez was a police officer who could have
justified his presence at the scene of the crime with a
lawful purpose, yet he put up alibi which is inherently
weak;
(c) Galvez did not present his wife and father-in-law
as witnesses to corroborate his story that he was at
their house on the night in question; and
(d) Galvez refused three times to give a statement to
the investigating police officer.
These circumstances do not help the prosecution in the
discharge of its duty to prove the guilt of Galvez beyond
reasonable doubt.
It is true that a negative finding in a paraffin test is not a
conclusive proof that one has not fired a gun, as held by this
Court in People v. Pagal74 and People v. Teehankee75 which were
cited by the CA in its Decision, since it is possible for a person to
fire a gun and yet bear no traces of nitrate or gunpowder as
when the hands are bathed in perspiration or washed
afterwards.76 Such principle, however, has no bearing in the
present case. In the Pagal and Teehankee cases, the Court
concluded that a negative finding does not prove that the
accused therein had not fired a gun because the accused were
positively identified by witnesses as having shot their victims,
unlike in the case at hand where Galvez is not positively
identified by direct or circumstantial evidence that he shot
Enojarda. If the principle should be given any weight at all, it

EVIDENCE

should be in favor of Galvez, that is, considering that he is not

positively identified, then, the negative results of the paraffin
test bolster his claim that he did not shoot Enojarda, and not the
other way around.
The argument that the negative result of the ballistic
examination does not prove that Galvez did not fire a gun during
the incident as it was possible that he used another gun, should
also be struck down. It is the prosecution which has the burden
of showing that Galvez used a firearm other than the one issued
to him and that such firearm, which Galvez used, was the one
that killed the victim. It is not for Galvez to prove the opposite of
the possibility adverted to by the prosecution as it is the
prosecution which must prove his guilt beyond reasonable doubt
and not for him to prove his innocence.
Thus, while it is true that the negative results of the paraffin and
ballistic tests do not conclusively prove that Galvez did not shoot
the victim, the same negative results cannot be used as
circumstantial evidence against Galvez to prove that he shot
Enojarda. To do otherwise would violate the basic precepts of
criminal law which presumes the innocence of the accused.
Every circumstance favoring an accuseds innocence must be
duly taken into account, the proof against him must survive the
test of reason, and the strongest suspicion must not be
permitted to sway judgment.77
That Galvez was a police officer who could have justified his
presence at the scene of the crime with a lawful purpose, yet he
put up an alibi which is inherently weak; and that Galvez did not
present his wife and father-in-law as witnesses to corroborate
his story that he was at their house on the night in question,
pertain to the weakness of Galvezs alibi which may cast doubt
on his innocence. However, these circumstances do not prove
beyond reasonable doubt Galvezs guilt. Although an accused
must satisfactorily prove his alibi, the burden in criminal cases
still rests on the prosecution to prove the accuseds guilt. The
prosecution evidence must stand or fall on its own weight and
cannot draw strength from the weakness of the defense. Unless
the prosecution overturns the constitutional presumption of
innocence of an accused by competent and credible evidence
proving his guilt beyond reasonable doubt, the presumption
remains.78 Courts must judge the guilt or innocence of the
accused based on facts and not on mere conjectures,
presumptions, or suspicions.79
That Galvez refused three times to give a statement to the
investigating police officer is a prerogative given to the accused
and should not be given evidentiary value to establish his guilt.
In People v. Saavedra,80 the Court held that an accused has the
right to remain silent and his silence should not be construed as
an admission of guilt.
Even if the defense of the appellant may be weak, the same is
inconsequential if, in the first place, the prosecution failed to
discharge the onus of his identity and culpability.81 Conviction
must be based on the strength of the prosecution and not on the
weakness of the defense, i.e., the obligation is upon the
shoulders of the prosecution to prove the guilt of the accused
and not the accused to prove his innocence.82 The prosecutions
job is to prove that the accused is guilty beyond reasonable
doubt.83 Thus, when the evidence for the prosecution is
insufficient to sustain a conviction, it must be rejected and the
accused absolved and released at once.84
Time and again, the Court has pronounced that the great goal of
our criminal law and procedure is not to send people to jail but
to render justice.85 Under our criminal justice system, the

AGUSTIN, E.P. | 93

overriding consideration is not whether the court doubts the

innocence of the accused, but whether it entertains reasonable
doubt as to his guilt.86
It is indeed lamentable that because of the lapses of the
Prosecution, justice could not be rendered in this case for the
untimely death of Enojarda. Justice, however, would also not be
served with the conviction of the herein accused. It is well to
quote Justice Josue N. Bellosillo:
In fine, we are not unmindful of the gravity of the crime
charged; but justice must be dispensed with an even
hand. Regardless of how much we want to punish the
perpetrators of this ghastly crime and give justice to the
victim and her family, the protection provided by the Bill
of Rights is bestowed upon all individuals, without
exception, regardless of race, color, creed, gender or
political persuasion whether privileged or less
privileged to be invoked without fear or favor. Hence,
the accused deserves no less than an acquittal; ergo, he
is not called upon to disprove what the prosecution has
not proved.87 (Emphasis supplied)
As the prosecution in this case failed to discharge its burden of
proving Galvezs guilt beyond reasonable doubt, the Court has
no choice but to acquit him.
WHEREFORE, the Decision of the Regional Trial Court, Isabela,
Basilan, Branch 1 in Criminal Case No. 1816 dated February 2,
1995 and the Decision of the Court of Appeals in CA-G.R. CR No.
18255 dated March 30, 2001 are REVERSED and SET ASIDE.
The accused-appellant Cesar Galvez is hereby ACQUITTED on
the ground that his guilt was not proven beyond reasonable
doubt. The Director of the Bureau of Corrections is ordered to
cause the immediate release of Cesar Galvez unless he is being
lawfully held for another crime and to inform this Court
accordingly within ten (10) days from notice.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 94

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168071

December 18, 2006

LUCIANO TAN, petitioner,

vs.
RODIL ENTERPRISES, respondent.
DECISION
CHICO-NAZARIO, J.:
The instant Petition for Review on Certiorari assails the Decision1
dated 21 October 2002 and the Resolution2 dated 12 May 2005
of the Court of Appeals in CA-G.R. SP No. 67201, which set aside
the 18 June 2001 Decision3 of the Regional Trial Court (RTC) of
Manila, Branch 26 in Civil Case No. 01-99797. The RTC reversed
the 6 October 2000 Decision4 of the Metropolitan Trial Court
(MeTC) of Manila, Branch 13 in Civil Case No. 166584, and
dismissed the Complaint filed by respondent Rodil Enterprises
against petitioner Luciano Tan for utter lack of merit.
This case has its origin from the Complaint5 for Unlawful
Detainer filed on 13 March 2000 by Rodil Enterprises against
Luciano Tan with the MeTC of Manila, Branch 13, docketed as
Civil Case No. 166584.
The factual antecedents to the filing of the Complaint show that
Rodil Enterprises is a lessee of the subject premises, the Ides
ORacca Building since 1959. The Ides ORacca Building, located
at the corner of M. de Santos and Folgueras Streets in Binondo,
Manila, is owned by the Republic of the Philippines. On 18 May
1992, Rodil Enterprises and the Republic, through the
Department of Environment and Natural Resources (DENR),
entered into a Renewal of a Contract of Lease over the Ides
ORacca Building. A subsequent Supplementary Contract dated
25 May 1992 was similarly entered into, thus, extending the
lease agreement until 1 September 1997.
The validity of the 18 May 1992 and the 25 May 1992 contracts
was placed in question in several actions involving Rodil
Enterprises, the Ides ORacca Building Tenants Association, Inc.,
and other tenants. This Court upheld the validity of the aforesaid
contracts in a Decision rendered on 29 November 2001, in the
consolidated cases of Rodil Enterprises, Inc. v. Court of Appeals,

Carmen Bondoc, Teresita Bondoc-Esto, Divisoria Footwear and

Chua Huay Soon (G.R. No. 129609) and Rodil Enterprises, Inc. v.
Ides ORacca Building Tenants Association, Inc. (G.R. No.
135537).6

Prior thereto, the Office of the President in OP Case No. 4968

entitled, Spouses Saturnino B. Alvarez and Epifania Binay Alvarez
v. Rodil Enterprises Company, Inc. rendered a Decision7 dated 8
February 1994, declaring the Renewal of Contract of Lease and
the Supplementary Contract, dated 18 May 1992 and 25 May
1992, respectively, of no force and effect.
It appears that Rodil Enterprises appealed the 8 February 1994
Decision to the Court of Appeals, docketed as CA-G.R. SP No.
34586 which was dismissed by the appellate court for noncompliance with procedural requirements. The dismissal was

EVIDENCE

appealed by Rodil Enterprises to the Supreme Court, docketed

as G.R. No. 119711 which was also dismissed. Subsequently, the
Office of the President issued an Order of Execution of its 8
February 1994 Decision in OP Case No. 4968. Thereafter, Rodil
Enterprises filed a Petition for Review on Certiorari with the
Court of Appeals on the Order of Execution, docketed as CA-G.R.
SP No 79157. The Court of Appeals rendered a Decision therein
dated 28 March 2005 which annulled the Order of Execution,
and enjoined the Office of the President from enforcing its 8
February 1994 Decision in OP Case No. 4968. Likewise, the
Court of Appeals ordered the Office of the President to abide by
the 29 November 2001 Decision of the Supreme Court in the
consolidated cases of G.R. No. 129609 and G.R. No. 135537,
upholding the validity of the Renewal of Contract of Lease and
the Supplemental Contract, dated 18 May 1992 and the 25 May
1992, respectively. Finally, the Decision of the Court of Appeals
in CA-G.R. SP No. 79157 was brought on certiorari by the Ides
ORacca Building Tenants Association, Inc. to the Supreme
Court, and docketed as G.R. No. 169892. On 25 January 2006,
the Court, in G.R. No. 169892, issued a Resolution denying the
Petition. On 20 March 2006, a Resolution was rendered in the
same case denying with finality the amended Motion for
Reconsideration.
Meanwhile, during the pendency of the preceding cases, on 18
October 1999, a subsequent Contract of Lease was drawn
between Rodil Enterprises and the Republic, the same to be
effective retroactively from 1 September 1997 to 21 August 2012
at a monthly rental of P65,206.67, subject to adjustment upon
the approval of a new appraisal covering the Ides ORacca
Building. Rodil Enterprises subleased various units of the
property to members of the Ides ORacca Building Tenants
Association, Inc. A space thereof, known as Botica Divisoria was
subleased to herein petitioner, Luciano Tan.
In Rodil Enterprises Complaint for Unlawful Detainer filed
against Luciano Tan, the former alleged that Luciano Tan bound
himself to pay under a Contract of Sublease, the amount of
P13,750.00 as monthly rentals, representing the reasonable use
and occupancy of the said premises. However, Luciano Tan
unjustifiably and unreasonably refused to pay the rentals from
September 1997 up to the time of the filing of the Complaint,
and despite repeated oral and written demands, refused to
vacate the premises and to pay the rents due. Rodil Enterprises
prayed that Luciano Tan and those claiming rights under him be
ordered to vacate the leased premises. A payment of rentals in
arrears, amounting to P385,000.00 was similarly sought,
including attorneys fees and litigation costs, as well as,
subsequent monthly rentals in the amount of P13,750.00 until
Luciano Tan vacates Botica Divisoria.
In his Answer, Luciano Tan insists that he is a legitimate tenant
of the government who owns the Ides ORacca Building and not
of Rodil Enterprises. As such, he has the right to lease the said
premises pending the disposition and sale of the building. He
based his claim on the fact that on 8 February 1994, the Office
of the President in OP Case No. 4968, had declared the Renewal
of Contract of Lease dated 18 May 1992 and the Supplemental
Contract dated 25 May 1992 between Rodil Enterprises and the
Republic to be without force and effect. Accordingly, the DENR
was directed to award the lease contract in favor of the Ides
ORacca Building Tenants Association, Inc. of which Luciano Tan
is a member. He, thus, prayed for the dismissal of the
Complaint, and for the return of whatever amount Rodil
Enterprises had collected from 1987 to 1997, or during such time
when he was still paying rentals to the latter.

AGUSTIN, E.P. | 95

On 27 June 2000, the MeTC issued an Order, recognizing an

agreement entered into in open court by Luciano Tan and Rodil
Enterprises. The Order, inter alia, declared, thus:
On second call, the parties and counsel agreed in
principle in open court to the following terms to put
an end to this civil case for ejectment between them:
1.) that [Luciano Tan] will pay P440,000.00
representing rentals from September, 1997 up to the
present, which is the outstanding obligation of
[Luciano Tan] as of June, 2000, on or before June 30,
2000; and
2.) [Luciano Tan] will pay the monthly rentals
computed at P13,750.00 on or before the 5th day of
each month after June 30, 2000.8
On 14 August 2000, Luciano Tan filed a Motion to Allow
Defendant to Deposit Rentals,9 averring therein that he had
agreed to pay all the rentals due on the subject premises and to
pay the subsequent monthly rentals as they fall due; that the
rentals in arrears from September 1997 amounted to
P467,500.00; and in line with his good faith in dealing with Rodil
Enterprises, he would like to deposit the aforesaid amount, and
the subsequent monthly rentals as they fall due. He prayed that
he be allowed to deposit the Managers Check for the amount of
P467,500.00, made payable to the City Treasurer of Manila.
However, on 15 August 2000, the MeTC denied the Motion on
the rationalization that Luciano Tans prayer to deposit the
specified sum with the City Treasurer of Manila contravenes
Section 19,10 Rule 70 of the 1997 Rules of Civil Procedure.
Subsequently, the issues for the resolution of the MeTC were
synthesized by the court in its Order, dated 25 July 2000, to wit:
[T]he issue insofar as [Rodil Enterprises], revolved
on:
"Whether [Rodil Enterprises] is legally
entitled to collect from [Luciano Tan] the
amount of rentals and interest thereon as
prayed for in the complaint and to ask for
the ejectment of the defendant from the
leased premises."
On the other hand, [Luciano Tan]s counsel
formulated the issues of the case in the
following manner[,] to wit:
1)
Whether
or
not
under
the
circumstances[,][Luciano Tan] could be
ejected from the premises in question;
2)
Whether
or
not
under
the
circumstances[,] [Rodil Enterprises] should
be made to return the amounts collected
from [Luciano Tan] from 1987 to 1997
amounting to P988,650.00.11
On 6 October 2000, the MeTC rendered a Decision in favor of
Rodil Enterprises. The court said that Luciano Tan did not
contest the sublease on a monthly basis, and in fact admitted in
judicio, viz:

EVIDENCE

1.) That [Luciano Tan] will pay P440,000.00

representing rentals from September 1997 up to the
present, which is the outstanding obligation of the
defendant as of June, 2000, on or before June 30,
2000; and
2) [[Luciano Tan] will pay the monthly rentals
computed at P13,750.00, on or before the 5th day of
each month after June 30, 2000.
(Order dated June 27, 2000)12
According to the MeTC, notwithstanding the evidentiary norm in
civil cases that an offer of compromise is not an admission of
any liability, and is not admissible in evidence against the
offeror, the court cannot overlook the frank representations by
Luciano Tans counsel of the formers liability in the form of
rentals, coupled with a proposal to liquidate.13 The foregoing
gestures, as appreciated by the MeTC, were akin to an
admission of a fact, like the existence of a debt which can serve
as proof of the loan, and was thus, admissible.14 The court
pronounced that Luciano Tan had explicitly acknowledged his
liability for the periodic consideration for the use of the
subleased property. Estoppel, thus, precludes him from
disavowing the fact of lease implied from the tender of payment
for the rentals in arrears.15 The MeTC, explained further:
Prescinding from the foregoing discourse, it
ineluctably follows that [Luciano Tan]s indifference to
heed the two demand letters, the cognition of which
were recognized (paragraphs VII and IX, Complaint;
paragraph 2, Answer), rendered him a deforciant (1
Regalado, Remedial Law Compendium, 6th Revised
Edition, 1997, page 770, citing Dikit vs. Ycasiano, 89
Phil. 44), and was thus vulnerable to the special civil
action under Section 1, Rule 70 of the 1997 Rules of
Civil Procedure, especially so when non-payment of
rentals is an accepted prelude to, and a secondary
matrix for, a tenants eviction (Article 1673 (2), New
Civil Code).
From a different plane, [Luciano Tan]s quest at this
juncture for recovery of the rentals he paid to the
plaintiff from 1987 to 1997 will not merit the desired
result since, in a manner of speaking, it will place the
cart ahead of the horse, when juxtaposed with
another pending controversy between the parties
before the Supreme Court (Annex "1," Position Paper
for the Defendant; Annex "B," Answer to
Counterclaim).
The decretal portion of the Decision, states, viz:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered in favor of [Rodil
Enterprises], ordering:
1. Defendant Luciano Tan, and all persons claiming
rights under him, to vacate the subject realty, and to
peacefully deliver possession to the plaintiffs
representative;
2. Defendant [Luciano Tan] to pay the sum of FOUR
HUNDRED FORTY THOUSAND PESOS (P440,000.00)
as recognized unpaid rentals from September, 1997
up to June 30, 2000;

AGUSTIN, E.P. | 96

3. Defendant [Luciano Tan] to pay the sum of

THIRTEEN THOUSAND SEVEN HUNDRED FIFTY
PESOS (P13,750.00) as agreed rental per month,
starting July, 2000, and every month thereafter, until
possession
is
delivered
to
the
plaintiffs
representative;
4. Defendant [Luciano Tan] to pay the sum of FIVE
THOUSAND PESOS (P5,000.00) as reasonable
attorneys fees; and
5. Defendant [Luciano Tan] to pay the cost of suit.
For want of
DISMISSED.

merit,

defendants

counterclaim

is

hereby

IT IS SO ORDERED.16
Aggrieved thereby, Luciano Tan appealed the Decision to the
RTC. Meanwhile, Rodil Enterprises filed a Motion for Issuance of
Writ of Execution,17 which was subsequently denied by the MeTC
in the Order18 of 15 December 2000.
On 18 June 2001, the RTC rendered a Decision reversing the
judgment appealed from and dismissing the Complaint. It found
that the MeTC erred in holding that the offer to compromise by
Luciano Tans counsel was akin to an admission of fact, the
same being contrary to Section 27,19 Rule 130 of the 1997 Rules
of Civil Procedure. As reasoned by the RTC:
During the pre-trial conference held in the lower
court, proposals and counter-proposals emanated
from the parties counsels, which was normally
inspired by the desire to "buy peace", nay, to put an
end to the troubles of litigation, and to promote
settlement of disputes as a matter of public policy.
The act of defendant/appellants (sic) in the midst of
pre-trial is not an admission of any liability and
therefore, should not be considered admissible
evidence against him.20
Proceeding to the issue of the right of Rodil Enterprises to collect
rentals and eject Luciano Tan based on the contracts, dated 18
May 1992 and 25 May 1992, the RTC ruled that the controversy
is still pending before the Supreme Court. It, thus, held that the
prayer for recovery of rentals from 1987 to 1997 is premature.
The RTC, disposed, as follows:
IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby REVERSED, and a new
judgment is hereby entered DISMISSING the
complaint in Civil Case No. 166584 for utter lack of
merit.21
Subsequently, Rodil Enterprises filed a Petition for Review with
the appellate court, which, in a Decision dated 21 October 2002
set aside the judgment of the RTC, and affirmed and reinstated
the 6 October 2000 Decision of the MeTC.
According to the appellate court, there is, between Rodil
Enterprises and the Republic of the Philippines, a valid and
subsisting Contract of Lease executed on 18 October 1999, the
same for a period of fifteen (15) years.22 The period of the lease,
under the 18 October 1999 contract is from 1 September 1997

EVIDENCE

to 31 August 2012. The Court of Appeals gave credence to the

fact that the existence of the aforesaid contract was not denied
nor controverted by Luciano Tan. What Luciano Tan, instead,
impugned was the validity of the contracts dated 18 and 25 May
1992, which was upheld by this Court in the consolidated cases
of Rodil Enterprises, Inc. v. Court of Appeals, Carmen Bondoc,

Teresita Bondoc-Esto, Divisoria Footwear and Chua Huay Soon

(G.R. No. 129609) and Rodil Enterprises, Inc. v. Ides ORacca
Building Tenants Association, Inc. (G.R. No. 135537).23

Ruling on the more important question of whether Luciano Tan

made a judicial admission anent his liability as a sublessee of
Rodil Enterprises, the Court of Appeals held that the former
made an implied admission of the existence of a contract of
sublease between him and Rodil Enterprises on the subject
premises; and that he had reneged in the payment of rentals
since 1 September 1997. Moreover, it deemed Luciano Tans
Motion to Allow Defendant to Deposit Rentals as another
admission in favor of Rodil Enterprises. The appellate court
elucidated, thus:
The evidence on record indubitably shows that
respondent [Luciano Tan] is a sublessee of petitioner
[Rodil Enterprises] who failed to pay rentals from 01
September 1997 and even until the case was filed
before the [M]etropolitan [T]rial [C]ourt, when
respondent [Luciano Tan] "agreed in principle in open
court" to the following terms:
1) that the defendant [Luciano Tan] will
pay P440,000.00 representing rentals from
September, 1997 up to the present, which
is the outstanding obligation of the
defendant as of June, 2000, on or before
June 30, 2000; and
2) defendant [Luciano Tan] will pay the
monthly rentals computed at P13,750.00
on or before the 5th day of each month
after June 30, 2000.
at the hearing on 27 June 2000 though no settlement
was eventually reached between the parties,
respondent [Luciano Tan] in effect made an implied
judicial admission that there was a subsisting contract
of sublease between him and petitioner, and that he
was remiss in the payment of rentals from 01
September 1997 up to that day (Rollo, Annex "9" of
petition). Respondent [Luciano Tan]s admission was
further bolstered by the fact that he filed a "Motion to
Allow Defendant to Deposit Rentals" (Rollo, p. 3 of
Annex "15" of petition). By such acts, respondent
[Luciano Tan] accepted the truth of petitioner [Rodil
Enterprises] allegation of the existence of a contract
of sublease between them and of his non-payment of
the rentals from 01 September 1997. A judicial
admission is an admission made in the course of the
proceedings in the same case, verbal or written, by a
party accepting for the purposes of the suit the truth
of some alleged fact, which said party cannot
thereafter disprove (Remedial Law by Herrera, Oscar
M. citing Section 4, Rule 129 of the Revised Rules on
Evidence and Evidence by Salonga).24
The decretal portion of the 21 October 2002 Court of Appeals
Decision, states, thus:

AGUSTIN, E.P. | 97

WHEREFORE, in the light of the foregoing, the

petition for review is GIVEN DUE COURSE. The
Decision dated 18 June 2001 of the Regional Trial
Court of Manila, Branch 26 is hereby SET ASIDE. The
Decision dated 06 October 2000 of the Metropolitan
Trial Court of Manila, Branch 13 is AFFIRMED and
REINSTATED.25
The appellate court denied Luciano Tans Motion for
Reconsideration thereon, in a Resolution,26 dated 12 May 2005.
Thus, petitioner comes before us, raising the following grounds,
to wit:
I
THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE REVERSIBLE ERROR WHEN IT ISSUED ITS
RESOLUTION DENYING PETITIONERS MOTION FOR
RECONSIDERATION OF ITS DECISION BY RELYING
SOLELY AND EXCLUSIVELY ON THE MARCH 28, 2005
DECISION OF THE COURT OF APPEALS AND DESPITE
THE FACT THAT THE SAID DECISION HAS NOT YET
BECOME FINAL AND EXECUTORY.
II
RESPONDENT RODIL ENTERPRISES IS GUILTY OF
FORUM SHOPPING WHEN IT FILED THE PETITION
FOR CERTIORARI WITH THE COURT OF APPEALS
DOCKETED AS CA-G.R. SP. NO. 79517 SEEKING TO
NULLIFY THE ORDER OF EXECUTION BY THE OFFICE
OF THE PRESIDENT OF ITS 8 FEBRUARY 1994
DECISION IN OP CASE NO. 4968, DESPITE THE FACT
THAT ITS PREVIOUS PETITION FOR REVIEW FILED
WITH THE COURT OF APPEALS OF THE SAME
DECISION OF THE OFFICE OF THE PRESIDENT
DATED 8 FEBRUARY 1994 HAD BEEN DISMISSED BY
THE COURT OF APPEALS IN ITS RESOLUTION DATED
NOVEMBER 17, 1994 DUE TO NON-COMPLIANCE
WITH PROCEDURAL RULES.
III
THE HONORABLE COURT OF APPEALS COMMITTED A
SERIOUS REVERSIBLE ERROR AND A GRAVE
MISAPPREHENSION
OF
THE
FACTS
AND
MISAPPRECIATION OF THE EVIDENCE WHEN IT
RULED THAT PETITIONER IS A SUBLESSEE OF
RESPONDENT AND THAT PETITIONER WAS REMISS
IN THE PAYMENT OF HIS RENTALS OVER THE
PREMISES.27
The Petition is without merit.
We shall address the first ground raised by petitioner with
regard to the alleged reliance of the Court of Appeals on the
Decision of the Tenth Division of the same court, dated 28 March
2005 in CA-G.R. SP No. 79157, entitled, Rodil Enterprises, Inc. v.

The Office of the President and Ides ORacca Building Tenants

Association, Inc.28

Contrary to petitioners contention, we do not find that the Court

of Appeals was in error when it took notice of the ruling in CAG.R. SP No. 79157 in resolving petitioners Motion for

EVIDENCE

Reconsideration. As respondent Rodil Enterprises asseverated,

for the appellate court to ignore a decision rendered by a
division thereof would be to turn a blind eye on a valid judgment
rendered by the same appellate body. Neither can we give merit
to petitioners submission that the reliance by the Court of
Appeals on its Decision in CA-G.R. SP No. 79517 is premature
and misplaced. More significantly, the contention of the
petitioner that the Decision in CA-G.R. SP No. 79517 has not
attained finality has become mute when viewed within recent
factual developments. The ruling in CA-G.R. SP No. 79517 has
long reached finality. This Court in a Resolution29 dated 25
January 2006 denied the Petition for Review on Certiorari filed
by the Ides ORacca Building Tenants Association, Inc. thereon.
On 20 March 2006, this Court denied with finality the Motion for
Reconsideration of the 25 January 2006 Resolution for lack of
compelling reason or substantial argument.30
Moreover, on 12 April 2004, the appellate court issued a
Resolution,31 granting petitioner a hearing on its Motion for
Reconsideration as the grounds cited therein needed further
clarification. This belies petitioners claim that the resolution on
the Motion for Reconsideration was based solely on the ruling of
the Court of Appeals in CA-G.R. SP No. 79517.
We come to the second ground raised by the petitioner.
Petitioner argues that Rodil Enterprises is guilty of forum
shopping when it filed the Petition for Certiorari with the Court of
Appeals, docketed as CA-G.R. SP No. 79157,32 after it filed an
Appeal with the appellate court in CA-G.R. SP No. 34586.33
Forum shopping is the act of a party against whom an adverse
judgment has been rendered in one forum, seeking another and
possibly favorable opinion in another forum other than by appeal
or special civil action of certiorari.34
The question of forum shopping is not even material to the
instant petition.
It must be emphasized that neither CA-G.R. SP No. 79157 nor
CA-G.R. SP No. 34586 is before this Court for consideration.
These cases are separate and distinct from CA-G.R. SP No.
67201 now before us.
What are assailed in the instant Petition are the Decision of the
Court of Appeals, dated 21 October 2002 and the Resolution,
dated 12 May 2005 in CA G.R. SP No. 67201, which reversed the
ruling of the RTC, and affirmed the MeTC, ordering Luciano Tan
to vacate the premises and peacefully deliver possession to Rodil
Enterprises. The matter in controversy is the refusal of Luciano
Tan to pay the monthly rentals over Botica Divisoria under the
contract of sublease between the parties.
On the other hand, CA-G.R. SP No. 79157 was a Petition for
Review on Certiorari seeking to nullify the Order of Execution of
the Office of the President of its 8 February 1994 Decision in OP
Case No. 4968 finding the Renewal of Contract of Lease, and the
Supplemental Contract of no force and effect. CA-G.R. SP No.
34586 was an appeal on the Decision in O.P. Case No. 4968,
which was the basis of the Order of Execution. If there has
indeed been forum shopping when CA-G.R. SP No. 79517 was
instituted during the pendency of CA-G.R. SP No. 34586, such
question should have been raised by petitioner, at first instance,
before the Court of Appeals in CA-G.R. SP No. 79517. It should
be noted that the petition in CA-G.R. SP No. 79517 was already
given due course by the Court of Appeals and its ruling therein
has long attained finality when, on appeal to this Court,
docketed as G.R. No. 169892, we denied the said appeal with
finality in our Resolutions dated 25 January 2000 and dated 20

AGUSTIN, E.P. | 98

March 2006. Whatever matters concerning the said case is now

beyond the jurisdiction of this Court to resolve.
We proceed to the final ground raised by the petitioner for the
allowance of the instant Petition. Petitioner assails the factual
findings of the Court of Appeals when it ruled that there was a
judicial admission as to petitioners liability under a contract of
sublease between him and Rodil Enterprises.
To resolve this issue, a reading of the significant orders of the
MeTC and the pleadings filed by petitioner is warranted.
The MeTC issued an Order, dated 27 June 2000 of the following
import, to wit:
On second call, the parties and counsel agreed in
principle in open court to the following terms to put
an end to this civil case for ejectment between them:
1.) that the defendant [Luciano Tan] will
pay P440,000.00 representing rentals from
September, 1997 up to the present, which
is the outstanding obligation of the
defendant as of June, 2000 on or before
June 30, 2000; and
2.) the defendant [Luciano Tan] will pay
the monthly rentals computed at
P13,750.00 on or before the 5th day of
each month after June 30, 2000.35
On 14 August 2000, petitioner filed a Motion to Allow Defendant
to Deposit Rentals with the MeTC, praying that he be allowed to
deposit the rentals due as of August 2000, in the amount of
P467,500.00, and the subsequent monthly rentals as it falls due.
Petitioner posits that the aforesaid admission, made in open
court, and then, reiterated in his Motion to Allow Defendant to
Deposit Rentals, cannot be taken as an admission of his liability,
citing Section 27, Rule 130 of the Rules of Court,36 which states,
inter alia, that an offer of compromise in a civil case is not a tacit
admission of liability.
The general rule is an offer of compromise in a civil case is not
an admission of liability. It is not admissible in evidence against
the offeror.
The rule, however, is not iron-clad. This much was elucidated by
this Court in Trans-Pacific Industrial Supplies, Inc. v. Court of
Appeals,37 to wit:
To determine the admissibility or non-admissibility of
an offer to compromise, the circumstances of the
case and the intent of the party making the offer
should be considered. Thus, if a party denies the
existence of a debt but offers to pay the same for the
purpose of buying peace and avoiding litigation, the
offer of settlement is inadmissible. If in the course
thereof, the party making the offer admits the
existence of an indebtedness combined with a
proposal to settle the claim amicably, then, the
admission is admissible to prove such indebtedness
(Moran, Comments on the Rules of Court, Vol. 5, p.
233 [1980 ed.]); Francisco, Rules of Court, Vol. VII,
p. 325 [1973 ed.] citing McNiel v. Holbrook, 12 Pac.

EVIDENCE

(US) 84, 9 L. ed., 1009). Indeed, an offer of

settlement is an effective admission of a borrowers
loan balance (L.M. Handicraft Manufacturing Corp. v.
Court of Appeals, 186 SCRA 640 [1990]. x x x.38
Similarly, in the case of Varadero de Manila v. Insular Lumber
Co.39 the Court applied the exception to the general rule. In
Varadero there was neither an expressed nor implied denial of
liability, but during the course of the abortive negotiations
therein, the defendant expressed a willingness to pay the
plaintiff. Finding that there was no denial of liability, and
considering that the only question discussed was the amount to
be paid, the Court did not apply the rule of exclusion of
compromise negotiations.
In the case at bar, the MeTC and the Court of Appeals properly
appreciated petitioners admission as an exception to the general
rule of inadmissibility. The MeTC found that petitioner did not
contest the existence of the sublease, and his counsel made
frank representations anent the formers liability in the form of
rentals. This expressed admission was coupled with a proposal
to liquidate. The Motion to Allow Defendant to Deposit Rentals
was deemed by the MeTC as an explicit acknowledgment of
petitioners liability on the subleased premises. The Court of
Appeals agreed with the MeTC. Indeed, the existence of the
Contract of Lease, dated 18 October 1999 was not denied by
petitioner. The contracts that were assailed by petitioner are the
contracts dated 18 and 25 May 1992, the validity of which has
been upheld by this Court in the consolidated cases of G.R. No.
129609 and G.R. No. 135537.
Finally, we find a categorical admission on the part of petitioner,
not only as to his liability, but also, as to the amount of
indebtedness in the form of rentals due. The Order of the MeTC
dated 27 June 2000 was clear that the petitioner agreed in open
court to pay the amount of P440,000.00, representing
petitioners unpaid rentals from September 1997 to June 2000;
and that petitioner will pay the monthly rentals computed at
P13,750.00 on or before the 5th day of each month after 30 June
2000. The petitioners judicial admission in open court, as found
by the MeTC, and affirmed by the Court of Appeals finds
particular significance when viewed together with his Motion to
Allow Defendant to Deposit Rentals, wherein petitioner stated
that the rentals due on the premises in question from September
1997 up to the present amounted to P467,500.00, as of the date
of filing the Motion. Petitioner cannot now be allowed to reject
the same. An admission made in the pleading cannot be
controverted by the party making such admission and are
conclusive as to him, and that all proofs submitted by him
contrary thereto or inconsistent therewith should be ignored
whether objection is interposed by a party or not.40 A judicial
admission is an admission made by a party in the course of the
proceedings in the same case, for purposes of the truth of some
alleged fact, which said party cannot thereafter disprove.41
WHEREFORE, the Petition is DENIED. The Decision dated 21
October 2002 and the Resolution dated 12 May 2005 in CA-G.R.
SP No. 67201, affirming and reinstating the 6 October 2000
Decision of the MeTC in Civil Case No. 166584 are AFFIRMED.
Costs against petitioners.
SO ORDERED.

Ynares-Santiago, (Working Chairman), Austria-Martinez, Callejo,

Sr., and, Chico-Nazario, JJ., concur.
Panganiban, C.J., Retired as of 7 December 2006.

AGUSTIN, E.P. | 99

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 146161

July 17, 2006

PEPITO CAPILA Y YRUMA, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Review on Certiorari of the
Decision1 dated November 10, 2000 of the Court of Appeals in
CA-G.R. CR No. 18903, entitled "The People of the Philippines v.
Pepito Capila y Yruma."
On August 24, 1993, an Information for robbery was filed with
the Regional Trial Court, Branch 148, Makati City, against Pepito
Capila y Yruma, herein petitioner, his brother Bonifacio Capila y
Yruma, Deogenio Caparoso y Porfero, and Dimas dela Cruz y
Lorena.
The Information, docketed as Criminal Case No. 93-7117, is
quoted as follows:
That on or about the 9th day of August 1993, in the
Municipality of Makati, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating
together with alias Jose and alias Gil, whose true
identities and present whereabouts are still unknown
and all of them mutually helping and aiding one
another, with intent to gain and by means of force,
violence and intimidation, did then and there willfully,
unlawfully and feloniously take, steal and carry away
cash money amounting to P1.3 million and three (3)
caliber paltik firearms in the total amount of
P18,000.00, belonging to Pilipinas Bank represented
by Juan Iglesia y Orgil and Lanting Security Agency
represented by Edgar Lucero y Iribayen, respectively,
to the damage and prejudice of the complainants in
the aforementioned amount of P1.3 million and
P18,000.00, respectively.
Upon being arraigned, all the accused, assisted by counsel,
pleaded not guilty. Trial commenced thereafter.
The evidence for the prosecution, as culled from the testimonies
of Edgardo Irigayen, Ariel Arellano, SPO2 Dioscorro Asinas, Jr.,
and SPO4 Romualdo Maximo, is summarized as follows:2
Petitioner Pepito Capila was a security guard of the Lanting
Security and Watchman Agency assigned in the Meralco
Collection Office on J.P. Rizal Street, Makati City.
On May 9, 1992, Ariel Arellano and Lani Imperio, both
employees of the Pilipinas Bank, Libertad Branch in Pasay City,
went to the Meralco Collection Office to receive and deposit cash
collections from Meralco's 27 collectors. The total collection for

EVIDENCE

that day amounted to P1,292,991.12. They then placed the

money inside a duffle bag table and had it padlocked. Then they
waited for the Pilipinas Bank's armored car to arrive. The
security guard posted at the Meralco Collection Office at the time
was Dimas dela Cruz, also from the Lanting Security and
Watchman Agency.
Before the armored car could arrive, two armed men suddenly
entered the Meralco Collection Office. They hit Dimas on the
nape with a handgun. Then they ordered Ariel and Lani to lie on
the floor face down and immediately took the duffle bag
containing Meralco's cash collections. They also seized three .38
caliber revolvers, valued at P6,000.00 each, owned by the
Lanting Security and Watchman Agency, including the service
handgun issued to Dimas.
After the malefactors fled, Dimas told Ariel that petitioner was
one of those who robbed the office. Then Dimas called the
Makati Police Sub-Station 9, the Meralco Security Division, and
the Lanting Security and Watchman Agency to report the
incident. The Makati Police dispatched SPO4 Romualdo Maximo
to investigate the robbery, while the Lanting Security and
Watchman Agency instructed its intelligence officer, Edgardo
Irigayen, to talk to the guard on duty.
SPO4 Maximo, accompanied by a police photographer, a
fingerprint technician, and another policeman, arrived within ten
minutes at the Meralco Collection Office. He questioned Ariel and
Lani, but they could not identify the robbers as they were lying
face down on the floor. Upon inquiry by SPO4 Maximo, Dimas
told him that one of the robbers is petitioner, also a security
guard of the Lanting Security and Watchman Agency assigned in
the Meralco Collection Office. Thereafter, SPO4 Maximo invited
Dimas, Lani and Ariel to the police station for the purpose of
taking their sworn statements.
Irigayen, the intelligence officer of the Lanting Security and
Watchman Agency, also questioned Dimas. The latter reported
that Pepito Capila is one of the robbers.
After the incident, petitioner fled to his hometown in Palapag,
Northern Samar. The Lanting Security and Watchman Agency
then requested SPO4 Maximo and his team to go to Northern
Samar to apprehend Capila.
In Northern Samar, the police operatives, with the assistance of
the Citizens Armed Forces Geographical Unit, arrested petitioner,
his brother Bonifacio Capila, and Deogenio Caparoso. The police
found P5,000.00 in possession of petitioner allegedly part of the
loot. All the suspects were arrested without warrants.
SPO4 Maximo interrogated petitioner who admitted that he
participated in the commission of the crime; that his share of the
loot is P45,000.00; and that Dimas is the mastermind.
After the prosecution had rested its case, all the accused,
through counsel, filed a Demurrer to Evidence but it was denied
by the trial court.
When the case was called for the continuation of the hearing on
November 15, 1994, the accused waived their right to present
their evidence, opting to submit their respective memoranda
instead.
On January 3, 1995, the trial court rendered its Decision
acquitting all the accused, except petitioner, thus:

AGUSTIN, E.P. | 100

WHEREFORE, premises considered:

1. And finding that the prosecution failed to prove the
guilt of accused Bonifacio Capila, Deogenes Caparoso,
and Dimas dela Cruz beyond reasonable doubt, they
are hereby acquitted.
2. And finding Pepito Capila guilty beyond reasonable
doubt of the crime of Robbery defined under Article
293 and penalized under Article 294 par. 5 of the
Revised Penal Code, with the presence of the
aggravating circumstance of abuse of confidence, use
of a firearm, and betrayal of trust, he is hereby
sentenced to an indeterminate prision term of from
EIGHT (8) years as minimum to TEN (10) years as
maximum.
Pepito Capila is also ordered to pay:
1. Lanting Security Agency the sum of
P18,000 for the value of the three firearms
not recovered and belonging to said
agency;
2. The sum of P1,292,991.12 to Pilipinas
Bank, the amount taken and not
recovered.
With costs against accused Pepito Capila.
In his appeal to the Court of Appeals, petitioner alleged that the
trial court erred in admitting in evidence the statement of Dimas
that he (petitioner) is one of the robbers. He was denied due
process because he was not able to cross-examine Dimas as the
latter did not testify.
On November 10, 2000, the Court of Appeals promulgated its
Decision affirming the assailed judgment of the trial court, thus:
WHEREFORE, premises considered, the appealed
decision (dated January 3, 1995) of the Regional Trial
Court (Branch 148) in Makati, Metro Manila in
Criminal Case No. 93-7217 is hereby AFFIRMED with
costs against the accused-appellant.
SO ORDERED.
Hence, the instant petition for Review on Certiorari.
The fundamental issue for our resolution is whether the
prosecution was able to prove the guilt of herein petitioner
beyond reasonable doubt.
A careful scrutiny of the records shows that the prosecution
relied heavily on the testimony of SPO4 Maximo that
immediately after the incident, Dimas reported to him that one
of the robbers is petitioner. The Court of Appeals, in affirming
the court a quo's judgment convicting petitioner, ruled that
Dimas' statement is part of the res gestae.
In the appellee's brief, the Solicitor General reiterated the
appellate court's ruling.

EVIDENCE

Res gestae is a Latin phrase which literally means "things done."

As an exception to the hearsay rule, it refers to those

exclamations and statements by either the participants, victims,
or spectators to a crime immediately before, during or
immediately after the commission of the crime, when the
circumstances are such that the statements were made as
spontaneous reactions or utterances inspired by the excitement
of the occasion, and there was no opportunity for the declarant
to deliberate and fabricate a false statement.3 The reason for the
rule is human experience. It has been shown that under certain
external circumstances of physical or mental shock, the state of
nervous excitement which occurs in a spectator may produce a
spontaneous and sincere response to the actual sensations and
perceptions produced by the external shock. As the statements
or utterances are made under the immediate and uncontrolled
domination of the senses, rather than reason and reflection,
such statements or utterances may be taken as expressing the
real belief of the speaker as to the facts he just observed. The
spontaneity of the declaration is such that the declaration itself
may be regarded as the event speaking through the declarant
rather than the declarant speaking for himself.4
The rule on res gestae is provided under Section 42, Rule 130 of
the Revised Rules of Court, thus:
SEC. 42. Part of the res gestae. Statements made
by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also
statements accompanying an equivocal act material
to the issue, and giving it a legal significance, may be
received as part of the res gestae.
For the admission of the res gestae in evidence, the following
requisites must be met: (1) that the principal act or the res
gestae be a startling occurrence; (2) the statement is
spontaneous or was made before the declarant had time to
contrive or devise, and the statement is made during the
occurrence or immediately or subsequent thereto; and (3) the
statement made must concern the occurrence in question and its
immediately attending circumstances.5
The Court of Appeals found that all the above requisites are
present, thus:
First. The principal act is a startling occurrence which
is the robbery in question.
Second. Dimas Dela Cruz informed the investigating
officers that it was appellant who robbed the Meralco
office immediately after the incident occurred and
before he had the time to contrive a story.
The robbery happened at around eight o'clock in the
evening of August 9, 1993 (p. 4, TSN, February 24,
1994). Immediately after the incident, dela Cruz
called up the police station (p. 17, TSN, January 31,
1994). In ten minutes, SPO4 Maximo and his
companion were in the Meralco office where they
immediately conducted an investigation (pp. 3-9,
TSN, February 24, 1994). During this investigation,
DELA Cruz pointed to appellant as one of the
perpetrators of the crime.
Further, immediately after the robbers fled, dela Cruz
informed Ariel Arellano (the bank representative

AGUSTIN, E.P. | 101

detailed at the Meralco office) that appellant was one

of those who robbed the office (pp. 15-17, TSN,
January 31, 1994).

Another factor that militates against petitioner's innocence is his

flight to Samar after the commission of the crime. Obviously,
such flight is an indication of guilt.

In other words, statement of dela Cruz was

spontaneous as correctly observed by the trial court.

Verily, we hold that the prosecution, by its evidence, has

established the guilt of petitioner beyond reasonable doubt.

Third. The statement of dela Cruz refers to the

robbery or incident subject matter of this case.

WHEREFORE, we DENY the petition. The assailed Decision of

the Court of Appeals in CA-G.R. CR No. 18903 finding petitioner
PEPITO CAPILA y YRUMA guilty beyond reasonable doubt of
the crime of robbery is AFFIRMED.

We are in accord with the Court of Appeals in its conclusion that

all the requisites of the rule on Res gestae are present. The
principal act, which by any measure is undoubtedly a startling
occurrence, is the robbery of which petitioner is being charged.
Immediately after the robbery, Dimas dela Cruz, the security
guard then on duty, informed Ariel that one of the perpetrators
is herein petitioner. Dimas likewise reported at once the incident
to the police and to the security agency. When questioned by
SPO4 Maximo, Dimas, who was still shocked, named petitioner
herein as one of the robbers. His statements to Ariel and SPO4
Maximo were made before he had the time and opportunity to
concoct and contrive a false story. We note that Dimas
personally knows petitioner considering that both worked in the
same security agency and assigned in the same office.

With costs de oficio.

SO ORDERED.

Puno, Chairperson, Corona, Azcuna, Garcia, J.J., concur.

Petitioner contends that since Dimas dela Cruz did not take the
witness stand, he (petitioner) was deprived of his right to crossexamine him. Thus, the Court of Appeals should not have
considered Dimas' statement as part of the Res gestae. Our
ruling in Ilocos Norte Electric Company v. Court of Appeals6 is
relevant.
In this case, it appears that in the evening of June 28 until the
early morning of June 29, 1967, a strong typhoon (Gening)
occurred in Ilocos Norte, bringing heavy rains and consequent
flooding. While one Isabel Lao Juan was wading in waist-deep
flood along Guerrero Street, Laoag City, suddenly she screamed,
"Ay" and quickly sank into the water. Her two companions, Aida
Bulong and Linda Estavillo, shouted for help. Ernesto dela Cruz
arrived and tried to approach Isabel who was electrocuted. But
at four meters away from her, Ernesto turned back shouting,
"the water is grounded." This Court ruled that the Court of
Appeals properly applied the principle of Res gestae. The
testimonies of Aida and Linda that Ernesto dela Cruz tried to
approach the victim, but he turned back and shouted, "the water
is grounded," are not hearsay although he (Ernesto) was not
presented as a witness. His declaration is part of the Res gestae.
Applying the above ruling on the instant case, we cannot
consider the testimony of SPO4 Maximo as hearsay since the
statement of Dimas that petitioner is one of the robbers is part
of the Res gestae.
Moreover, despite the damaging testimonies of the witnesses for
the prosecution, petitioner did not testify to rebut them. Such
posture is admission in silence.
Section 32, Rule 130 of the New Rules on Evidence provides:
Sec. 32. Admission by silence. An act or declaration
made in the presence and within the hearing or
observation of a party who does or says nothing
when the act or declaration is such as naturally to call
for action or comment if not true, and when proper
and possible for him to do so, may be given in
evidence against him.

EVIDENCE

AGUSTIN, E.P. | 102

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 177861

July 13, 2010

IN RE: PETITION FOR CANCELLATION AND CORRECTION

OF ENTRIES IN THE RECORD OF BIRTH,
EMMA K. LEE, Petitioner,
vs.
COURT OF APPEALS, RITA K. LEE, LEONCIO K. LEE,
LUCIA K. LEE-ONG, JULIAN K. LEE, MARTIN K. LEE, ROSA
LEE-VANDERLEK, MELODY LEE-CHIN, HENRY K. LEE,
NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and
THOMAS K. LEE, represented by RITA K. LEE, as
Attorney-in-Fact, Respondents.
DECISION
ABAD, J.:
This case is about the grounds for quashing a subpoena ad
testificandum and a parents right not to testify in a case against
his children.
The Facts and the Case
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
entered the Philippines in the 1930s as immigrants from China.
They had 11 children, namely, Rita K. Lee, Leoncio K. Lee, Lucia
K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek,
Melody Lee-Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano
K. Lee, and Thomas K. Lee (collectively, the Lee-Keh children).
In 1948, Lee brought from China a young woman named Tiu
Chuan (Tiu), supposedly to serve as housemaid. The respondent
Lee-Keh children believe that Tiu left the Lee-Keh household,
moved into another property of Lee nearby, and had a relation
with him.
Shortly after Keh died in 1989, the Lee-Keh children learned that
Tius children with Lee (collectively, the Lees other children)
claimed that they, too, were children of Lee and Keh. This
prompted the Lee-Keh children to request the National Bureau of
Investigation (NBI) to investigate the matter. After conducting
such an investigation, the NBI concluded in its report:
[I]t is very obvious that the mother of these 8 children is
certainly not KEH SHIOK CHENG, but a much younger woman,
most probably TIU CHUAN. Upon further evaluation and analysis
by these Agents, LEE TEK SHENG is in a quandary in fixing the
age of KEH SHIOK CHENG possibly to conform with his grand
design of making his 8 children as their own legitimate children,
consequently elevating the status of his second family and
secure their future. The doctor lamented that this complaint
would not have been necessary had not the father and his
second family kept on insisting that the 8 children are the
legitimate children of KEH SHIOK CHENG.1
The NBI found, for example, that in the hospital records, the
eldest of the Lees other children, Marcelo Lee (who was

EVIDENCE

recorded as the 12th child of Lee and Keh), was born of a 17year-old mother, when Keh was already 38 years old at the time.
Another of the Lees other children, Mariano Lee, was born of a
23-year-old mother, when Keh was then already 40 years old,
and so forth. In other words, by the hospital records of the Lees
other children, Kehs declared age did not coincide with her
actual age when she supposedly gave birth to such other
children, numbering eight.
On the basis of this report, the respondent Lee-Keh children filed
two separate petitions, one of them before the Regional Trial
Court (RTC) of Caloocan City2 in Special Proceeding C-1674 for
the deletion from the certificate of live birth of the petitioner
Emma Lee, one of Lees other children, the name Keh and
replace the same with the name Tiu to indicate her true
mothers name.
In April 2005 the Lee-Keh children filed with the RTC an ex parte
request for the issuance of a subpoena ad testificandum to
compel Tiu, Emma Lees presumed mother, to testify in the case.
The RTC granted the motion but Tiu moved to quash the
subpoena, claiming that it was oppressive and violated Section
25, Rule 130 of the Rules of Court, the rule on parental privilege,
she being Emma Lees stepmother.3 On August 5, 2005 the RTC
quashed the subpoena it issued for being unreasonable and
oppressive considering that Tiu was already very old and that
the obvious object of the subpoena was to badger her into
admitting that she was Emma Lees mother.
Because the RTC denied the Lee-Keh childrens motion for
reconsideration, they filed a special civil action of certiorari
before the Court of Appeals (CA) in CA-G.R. SP 92555. On
December 29, 2006 the CA rendered a decision,4 setting aside
the RTCs August 5, 2005 Order. The CA ruled that only a
subpoena duces tecum, not a subpoena ad testificandum, may
be quashed for being oppressive or unreasonable under Section
4, Rule 21 of the Rules of Civil Procedure. The CA also held that
Tius advanced age alone does not render her incapable of
testifying. The party seeking to quash the subpoena for that
reason must prove that she would be unable to withstand the
rigors of trial, something that petitioner Emma Lee failed to do.
Since the CA denied Emma Lees motion for reconsideration by
resolution of May 8, 2007,5 she filed the present petition with
this Court.
The Question Presented
The only question presented in this case is whether or not the
CA erred in ruling that the trial court may compel Tiu to testify in
the correction of entry case that respondent Lee-Keh children
filed for the correction of the certificate of birth of petitioner
Emma Lee to show that she is not Kehs daughter.
The Ruling of the Court
Petitioner Emma Lee claims that the RTC correctly quashed the
subpoena ad testificandum it issued against Tiu on the ground
that it was unreasonable and oppressive, given the likelihood
that the latter would be badgered on oral examination
concerning the Lee-Keh childrens theory that she had illicit
relation with Lee and gave birth to the other Lee children.
But, as the CA correctly ruled, the grounds citedunreasonable
and oppressiveare proper for subpoena ad duces tecum or for
the production of documents and things in the possession of the

AGUSTIN, E.P. | 103

witness, a command that has a tendency to infringe on the right

against invasion of privacy. Section 4, Rule 21 of the Rules of
Civil Procedure, thus provides:

against oppressive behavior of an examiner and this

is especially true where the witness is of advanced
age.8

SECTION 4. Quashing a subpoena. The court may quash a

subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein if it is unreasonable
and oppressive, or the relevancy of the books, documents or
things does not appear, or if the person in whose behalf the
subpoena is issued fails to advance the reasonable cost of the
production thereof.

2. Tiu claimed before the trial court the right not to

testify against her stepdaughter, petitioner Emma
Lee, invoking Section 25, Rule 130 of the Rules of
Evidence, which reads:

Notably, the Court previously decided in the related case of Lee

v. Court of Appeals6 that the Lee-Keh children have the right to
file the action for correction of entries in the certificates of birth
of Lees other children, Emma Lee included. The Court
recognized that the ultimate object of the suit was to establish
the fact that Lees other children were not children of Keh. Thus:
It is precisely the province of a special proceeding such as the
one outlined under Rule 108 of the Revised Rules of Court to
establish the status or right of a party, or a particular fact. The
petitions filed by private respondents for the correction
of entries in the petitioners' records of birth were
intended to establish that for physical and/or biological
reasons it was impossible for Keh Shiok Cheng to have
conceived and given birth to the petitioners as shown in
their birth records. Contrary to petitioners' contention
that the petitions before the lower courts were actually
actions to impugn legitimacy, the prayer therein is not to
declare that petitioners are illegitimate children of Keh
Shiok Cheng, but to establish that the former are not the
latter's children. There is nothing to impugn as there is
no blood relation at all between Keh Shiok Cheng and
petitioners.7 (Underscoring supplied)
Taking in mind the ultimate purpose of the Lee-Keh childrens
action, obviously, they would want Tiu to testify or admit that
she is the mother of Lees other children, including petitioner
Emma Lee. Keh had died and so could not give testimony that
Lees other children were not hers. The Lee-Keh children have,
therefore, a legitimate reason for seeking Tius testimony and,
normally, the RTC cannot deprive them of their right to compel
the attendance of such a material witness.
But petitioner Emma Lee raises two other objections to requiring
Tiu to come to court and testify: a) considering her advance age,
testifying in court would subject her to harsh physical and
emotional stresses; and b) it would violate her parental right not
to be compelled to testify against her stepdaughter.

SECTION 25. Parental and filial privilege.- No person may be

compelled to testify against his parents, other direct ascendants,
children or other direct descendants.
The above is an adaptation from a similar provision in Article 315
of the Civil Code that applies only in criminal cases. But those
who revised the Rules of Civil Procedure chose to extend the
prohibition to all kinds of actions, whether civil, criminal, or
administrative, filed against parents and other direct ascendants
or descendants.
But here Tiu, who invokes the filial privilege, claims that she is
the stepmother of petitioner Emma Lee. The privilege cannot
apply to them because the rule applies only to "direct"
ascendants and descendants, a family tie connected by a
common ancestry.1avvphi1 A stepdaughter has no common
ancestry by her stepmother. Article 965 thus provides:
Art. 965. The direct line is either descending or ascending. The
former unites the head of the family with those who descend
from him. The latter binds a person with those from whom he
descends.
Consequently, Tiu can be compelled to testify against petitioner
Emma Lee.
WHEREFORE, the Court DENIES the petition and AFFIRMS the
decision and resolution of the Court of Appeals in CA-G.R. SP
92555.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice

1. Regarding the physical and emotional punishment

that would be inflicted on Tiu if she were compelled
at her age and condition to come to court to testify,
petitioner Emma Lee must establish this claim to the
satisfaction of the trial court. About five years have
passed from the time the Lee-Keh children sought the
issuance of a subpoena for Tiu to appear before the
trial court. The RTC would have to update itself and
determine if Tius current physical condition makes
her fit to undergo the ordeal of coming to court and
being questioned. If she is fit, she must obey the
subpoena issued to her.
Tiu has no need to worry that the oral examination
might subject her to badgering by adverse counsel.
The trial courts duty is to protect every witness

EVIDENCE

AGUSTIN, E.P. | 104

RULE 130: Rules of Admissibility

(a) Sec. 36 - Sec. 47: Testimonial Knowledge;
Exceptions to Hearsay Rule
(b) Sec. 28 - Sec. 29: Rules on Examination of Child
Witness

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 107746

July 28, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARCELINO MORES y VILLANUEVA Alias
"CHRISTOPHER" RONNIE RACUMA and DANILO
ZAMORA, accused, DANILO ZAMORA, accused-appellant.
GONZAGA-REYES, J.:
This is an appeal from a conviction for robbery with homicide by
Branch 39 of the Regional Trial Court in Calapan, Oriental
Mindoro 1.
The case proceeded only as against accused Marcelino Mores
and Danilo Zamora, accused Ronnie Racuma having remained at
large. From the lower court's conviction, only accused Danilo
Zamora appealed.
The Information alleged as follows:
That on or about the 9th day of
September, 1991, at around 2:00 o'clock in
the morning, in the Barangay of Camilimil,
Municipality of Calapan, Oriental Mindoro,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, conspiring, confederating and
mutually helping one another, with intent
of gain, did then and there wilfully,
unlawfully and feloniously enter the
building, housing the Caltex Gasoline
Station, and once inside, forcibly, opened
by means of an iron pipe a cabinet and
took and carried away there from the
amount of TEN THOUSAND FOUR
HUNDRED FIFTY FIVE (P10,455.00)
PESOS, Philippine Currency, representing
the proceeds from the sale of gasoline, to
the damage and prejudice of the Manager,
Belen C. Arago, in said total sum; that on
the occasion of said robbery and for the
purpose of enabling them to take, steal
and carry away the amount abovementioned, herein accused in pursuance of
their conspiracy, did then and there
wilfully, unlawfully and feloniously and with
evident
premeditation
and
taking
advantage of their superior number and
strength and with intent to kill,
treacherously attack, assault and stab
several times one Alex Montemayor who

EVIDENCE

was the nightguard of the place, thereby

inflicting upon him multiple stabbed
wounds on the different parts of his body
resultant
therewith
caused
his
instantaneous death.1wphi1.nt
That in the commission of the offense of
robbery with homicide, the aggravating
circumstances of treachery, nighttime and
superior strength were attendant.
Contrary to Article 294, paragraph 1 of the
Revised Penal Code.
The case of the prosecution relies mainly on the lone eyewitness
account of Virgilio Castillo, a 19-year old boy who made a living
of washing buses parked in the premises of the Caltex gasoline
station where the crime took place, and who spent that ill-fated
night in the office of the gasoline station (the "Caltex office", for
brevity) with the victim, Alex Montemayor.
Castillo testified that on September 9, 1991, at about two o'clock
in the morning, he woke up and went out of the Caltex office in
order to urinate. On his way out, he met the three accused,
whom he knew for being often present in the premises of the
gasoline station 2, who warned him not to return inside the
Caltex office. 3 When he asked them why they were going inside
the office, he was told that it was none of his business and that
they just needed to say something to Alex Montemayor. 4 At this
point, Castillo became suspicious and feared that either Alex or
he might die. 5 Afraid to walk alone to the police station in order
to report the matter, Castillo instead tried to awaken the driver
and conductor of Golden Rose Bus No. 16, which was parked
about two arms length away from the Caltex office, as well as
the driver and conductor of Mindomar Bus, which was also
parked nearby. Having failed to awaken these persons, Castillo
went back to Golden Rose Bus No. 16 and sat on one of the bus
seats, from which vantage point he witnessed accused Danilo
Zamora get an iron pipe from Mindomar Bus, and accused
Marcelino Mores go behind the water tank of the gasoline station
and break a beer bottle. From his position inside the parked bus
and through the glass walls of the Caltex office, Castillo watched
the three accused, bearing their weapons, enter the Caltex office
and attack Alex Montemayor, who was then sleeping on top of a
table. 6
In his testimony, Castillo related how he witnessed Racuma stab
Alex Montemayor on the throat with the broken beer bottle,
while Zamora and Mores pinned Montemayor down by holding to
his hands and hair. Castillo then saw Racuma, using the iron
pipe, break the glass pad on top of the table where Montemayor
was lying down, causing Montemayor's body to fall to the floor.
Using the same iron pipe, Racuma then proceeded to forcibly
open a cabinet, built into one of the walls of the Caltex office,
and retrieve from within a plastic bedpan containing the day's
earnings from the sale of gasoline. Castillo remembered that
earlier in the day, he helped Alex Montemayor count the money
that was then placed in the plastic bedpan, which amounted to
more than P10,000.00. 7 Thereafter, Castillo watched the three
accused leave the Caltex office, bringing with them the plastic
bedpan, and walk towards the former site of the Petron gasoline
station. 8
Castillo further testified on how he tried to awaken the drivers
and conductors sleeping in the parked buses. His attempts
having been unsuccessful, he started the engine of the
Mindomar Bus, thus causing those sleeping inside the bus to be
awakened. Castillo informed the driver of Mindomar Bus, known

AGUSTIN, E.P. | 105

to him as Ka Carding, that Alex Montemayor was dead. Ka

Carding then instructed Castillo to report the matter to Mrs.
Cacha, the owner of the gasoline station. 9
The testimonies of Wilfredo Alegre and Cesar Gutierrez
corroborated the account of Virgilio Castillo. Alegre testified that
at around two o'clock of September 9, 1991, he was driving a
tricycle and was about to buy gasoline at the Caltex station in
Camilmil, Calapan, Oriental Mindoro when he noticed three men
leave the premises of the gasoline station. He noticed that the
men's clothes were stained with blood and one of them was
carrying a plastic bedpan. With the aid of the headlight of his
tricycle, Alegre claimed that he was able to recognize the three
men, and in court, positively identified accused Marcelino Mores
and Danilo Zamora as two of them. 10
Cesar Gutierrez testified that at around two o'clock in the
morning of the same day, September 9, 1991, he was walking
along the highway San Vicente, Calapan on his way to his house
in Lumangbayan, a nearby barrio. As he passed by the old site
of the Petron gasoline station, he saw three men dividing
money, after which he observed one of them throw a round
object on the other side of the road. He also noticed that two of
the men were wearing blood-stained shirts. Gutierrez identified
Mores and Zamora as two of the three men he saw. On crossexamination, Gutierrez declared that the lights from the nearby
house and building, as well as from a passing tricycle, enabled
him to recognize the faces of the three men. 11
Hours later, in the morning of September 9, 1991, the plastic
bedpan 12 was recovered by Police Officer Salvador Frayre of the
Calapan Police Station in front of the former site of the Petron
gasoline station. 13 The autopsy on the body of Alex
Montemayor, conducted by Dr. Arturo Alberto, Municipal Health
Officer of Calapan, Oriental Mindoro, revealed the cause of death
to be hemorrhage secondary to multiple stab wounds. 14
Accused Marcelino Mores admitted being with Ronnie Racuma
and a person he was unable to identify, at the time of the
robbery and killing, but maintains that he was merely forced to
go
with
them
under
threat
of
being
killed. 15 He denied participating in the division of the loot.
Accused Danilo Zamora denied participation in the commission of
the crime and set up the defense of alibi. He claimed that from
September 8, 1991 to September 9, 1991 he was in Morente,
Bongabon, Oriental Mindoro to attend to his wife who was then
delivering their child. 16
In handing out the judgment of conviction, the RTC declared
that the denials of the accused Mores and Zamora could not
prevail over the positive identification of prosecution witnesses
who testified on the direct participation of both accused in the
commission of the crime, and whose motives in narrating
falsehood have not been shown. 17 The dispositive portion of the
assailed decision reads as follows:
ACCORDINGLY, the Court finds accused
Marcelino Mores alias "Christopher" and
Danilo Zamora both guilty beyond
reasonable doubt, as principals, of the
crime of Robbery with Homicide penalized
in paragraph 1 of Article 294 of the
Revised Penal Code by reclusion perpetua
to death. Considering that there is one
generic aggravating circumstance, that is,
advantage was taken of superior strength,
and no mitigating circumstance present,
both accused should suffer the maximum

EVIDENCE

period of the penalty provided by law.

Considering, however, the abolition of the
death penalty under the Constitution of
1987, both accused are hereby sentenced
to suffer reclusion perpetua and to pay the
costs. Both accused are likewise ordered to
indemnify jointly and severally Mrs. Belen
C. Arago, owner of the Caltex Gasoline
Station, the amount of P10,455.00,
representing the amount taken away by
the accused from the said gasoline station,
and also to indemnify jointly and severally
the legal heirs of Alex Montemayor the
amount of P50,000.00 by way of actual
damages without subsidiary imprisonment
in both instances in case of insolvency.
On appeal, accused Danilo Zamora raised the following
assignments of error:
1 The lower court erred in giving credence
to the testimony of the alleged eyewitness,
Virgilio Castillo, who gave two sworn
statements
which
are
materially
inconsistent on a material fact.
2. The lower court erred in not giving
credence to the defense of alibi despite the
weakness of the prosecution's evidence.
Relative to the first ground, accused Zamora argued that the
inconsistencies in the sworn statements executed by Castillo,
dated September 14, 1991 and September 18, 1991,
respectively, belie the credibility of Castillo and are sufficient to
warrant the acquittal of Zamora. In the first sworn statement,
Virgilio Castillo stated that the victim, Alex Montemayor, was
already dead when he woke up on the early morning of
September 9, 1991 and that he suspected accused Mores and
Racuma to be the perpetrators of the crime. 18 In the second
sworn statement, Castillo implicated Danilo Zamora as a third
perpetrator, and declared that he actually witnessed the three
accused rob the Caltex office and kill Alex Montemayor. 19
The infirmity of affidavits as a species of evidence is a common
occurrence in judicial experience. 20 Affidavits are generally not
prepared by the affiants themselves but by other persons who
use their own language in writing the statements. 21 Being ex
parte, they are almost always incomplete and often inaccurate
22
, but these factors do not denigrate the credibility of
witnesses. 23 As such, affidavits are generally considered to be
inferior to testimony given in court. 24
Well-settled is the rule that affidavits are not considered the best
evidence if the affiants are available as witnesses 25 In the
instant case, Virgilio Castillo, testifying in open court, positively
identified both accused as two of the three perpetrators of the
crime, and gave a straightforward and consistent narration of
the incidents he witnessed. The presentation of Castillo as a
witness for the prosecution afforded opportunity for the trial
court to observe his overall demeanor and for the defense to
cross-examine his statements and impeach his credibility. In this
light, we find Virgilio Castillo's testimony to be credible in all
material points, and hold that the existence of such testimony
renders immaterial whatever inconsistencies there may have
been in the affidavits he previously executed.

AGUSTIN, E.P. | 106

Accused-appellant likewise assigns error to the trial court in

refusing to give credence to the defense of alibi. We cannot
agree more with the trial court's holding that that the denials of
the accused could not possibly prevail over the positive
identification of them by the three prosecutions witness, i.e.,
Virgilio Castillo, Wilfredo Alegre and Cesar Gutierrez, all of whom
came across as disinterested and with no apparent motive for
injecting falsehood into their testimonies. The fact that
prosecution witnesses have no possible motive to make false
imputations against the accused shows that their identification of
the latter is credible. 26
Time and again, this Court has had occasion to state that denials
and alibis, unsubstantiated by clear and convincing evidence, are
negative and self-serving, and cannot be given greater
evidentiary weight over the testimonies of credible witnesses
who testify on affirmative matters. 27 In the instant case, the
positive and categorical identification by the eyewitness deserves
far greater credence than the self-serving testimonies of both
accused. 28
An overall scrutiny of the records of this case leads us to no
other conclusion but the correctness of the trial court in holding
both accused guilty of the crime of robbery with homicide. We
observe that in addition to the aggravating circumstance of
taking advantage of superior strength, duly appreciated by the
trial court, the additional aggravating circumstance of treachery,
evident from the fact that the victim was sleeping when accused
attacked him, was also attendant. Considering the presence of
two aggravating circumstances with no mitigating circumstance,
the maximum penalty of death would be imposable under Article
63 of the Revised Penal Code. However, since the offense was
committed during the suspension of the imposition of the death
penalty by the 1987 Constitution and prior to its re-imposition
under Republic Act No. 7659, the imposable penalty is reclusion
perpetua. 29 Reclusion perpetua is a single indivisible penalty
which shall be imposed regardless of the attending aggravating
or mitigating circumstances. 30
WHEREFORE, on the foregoing considerations, the assailed
judgment of Branch 39 of the Regional Trial Court of Calapan,
Oriental Mindoro on Criminal Case No. C-3501 is hereby
AFFIRMED with the modification that both accused are ordered
to pay jointly and severally civil indemnity of P50,000.00 to the
legal heirs of Alex Montemayor; and actual damages of
P10,455.00 to Mrs. Belen C. Arago, owner of the gasoline
station.
Costs
against
accused-appellant
Danilo
Zamora.1wphi1.nt
SO ORDERED.

Romero, Vitug, Panganiban and Purisima, JJ., concur.

EVIDENCE

AGUSTIN, E.P. | 107

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 174056
February 27, 2007
[Formerly G.R. No. 138257]
THE PEOPLE OF THE PHILIPPINES, Appellee
vs.
ROGELIO GUMIMBA y MORADANTE alias ROWING and
RONTE ABABO (acquitted), Appellants,
DECISION
TINGA, J.:
For review before the Court is the Decision1 of the Court of
Appeals (CA) dated 26 April 2006, affirming with modification
the Decision2 of the Regional Trial Court (RTC), Ozamiz City,
Branch 15,3 dated 10 March 1999, finding appellant guilty
beyond reasonable doubt of the crime of rape with homicide.
In an Information4 dated 17 April 1997, appellant Rogelio
Gumimba y Morandante alias Rowing and co-accused Ronie
Abapo (Abapo) were charged before the RTC, with the crime of
rape with homicide of an eight (8)-year old child, thus:
That on or about April 8, 1997, in Barangay Pantaon, Ozamiz
City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
with each other, did then and there willfully, unlawfully and
feloniously and by means of force, violence and intimidation, to
wit: by then and there pinning down one [AAA],5 a minor, 8
years of age, and succeeded in having carnal knowledge with
her and as a result thereof she suffered 6-12 o'clock lacerated
wounds of [sic] the vagina as well as fatal stab wounds on the
different parts of her body and which were the direct cause of
her death thereafter.
CONTRARY to Article 335 in relation with Article 249 of the
Revised Penal Code.
On 16 May 1997, appellant and Abapo both entered a plea of
not guilty on arraignment.6 Thereafter, the case proceeded to
trial with the prosecution first presenting two witnesses: (1)
Emelio Magallano, President of Purok I, Barangay Pantaon,
Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer Officer
(CVO) of the same barangay.
Magallano and Araas testified that at around 9 o'clock in the
evening of 10 April 1997, appellant went to Magallano's home
and confessed to him that he alone and by himself raped and
killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz
City. Subsequently, Magallano accompanied appellant to the
residence of Araas where he reiterated his confession. That
same night, Magallano, Araas, appellant and family members of
the witnesses proceeded to the home of Barangay Captain
Santiago Acapulco, Jr. who conducted an investigation. Appellant
repeated his narration and confessed to the barangay captain
that he had raped and killed the victim, and that he was alone
when he committed the crime. As a result thereof, Acapulco, Jr.,
in the company of the others, brought appellant to the Ozamiz
City Hall and turned him over to the police authorities.7

EVIDENCE

However, appellant manifested though counsel (before the

court) at the following hearing on 22 May 1997 that he would
like to change his earlier plea of not guilty to a plea of guilty.8
The RTC ordered appellant's re-arraignment and the latter
accordingly entered a plea of guilty.9 The court conducted an
inquiry to ascertain the voluntariness of appellant's plea and his
full comprehension of the consequences thereof. Prosecution
was likewise charged to establish the guilt and degree of
culpability of appellant.10
In accordance with the court's directive, the prosecution
continued with the presentation of its evidence in chief. It
presented Dr. Pedrita Rosauro, the physician who conducted the
autopsy on the body of the victim, and who testified that the
victim was raped before she was killed. The examination by Dr.
Rosauro revealed that AAA sustained four (4) stab wounds in
front, two (2) stab wounds in her back and one (1) lacerated
wound each on her neck and on her middle upper extremity.
Furthermore, she found 6 and 12 o'clock laceration wounds on
the external genital organ of the victim.11
Before resting its case, the prosecution presented appellant as
witness against his co-accused Abapo. Appellant testified that he
and Abapo raped and killed the victim. He likewise explained
that he had previously confessed to Magallano, Araas and
Acapulco that he alone committed the crime in the hope that the
parents of the victim, who were relatives of his, might take pity
on him.12
In his defense, Abapo testified that at the time the crime was
allegedly committed, he was with his mother and three (3)
siblings at the Labo River, about two (2) kilometers away from
Barangay Pantaon, washing their clothes.13 In support thereof,
Abapo presented his mother Virgencita Abapo, Elisa Carreon and
Raymundo Orot, all of whom corroborated his alibi.14 The
defense also presented witness Araas who reiterated his earlier
testimony that appellant confessed to him that he alone was
responsible for the raping and killing of the victim.15 Finally,
Eugenio Bucog, a teacher at Capucao Elementary School, was
presented to demonstrate Abapo's good character when he was
his student.16
On 10 March 1999, the RTC promulgated its Decision. On the
basis of appellant's plea of guilty, the RTC found him guilty
beyond reasonable doubt of the crime as charged. Appellant was
sentenced to suffer the death penalty and ordered to indemnify
the heirs of the victim in the amounts of P50,000.00 as
indemnity for the life of the victim, P30,000.00 as moral
damages, and costs.17 On the other hand, the trial court
acquitted Abapo on the ground that his guilt was not established
beyond reasonable doubt. Except for the lone testimony of
appellant, the RTC held that no other evidence was adduced to
prove the participation of Abapo. Moreover, the court a quo
found that appellant's testimony implicating Abapo was not
worthy of credence coming as it did from a polluted source.18
With the death penalty imposed on appellant, the case was
elevated to this Court on automatic review. Pursuant to this
Court's decision in People v. Mateo,19 the case was transferred
to the Court of Appeals.
On 26 April 2006, the appellate court rendered its Decision20
affirming the appellant's conviction, but with modification as to
damages awarded to the heirs of the victim. The dispositive
portion of the said Decision states:

AGUSTIN, E.P. | 108

"WHEREFORE, premises considered, the instant Appeal is

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

EVIDENCE

2. When the woman is deprived of reason or

otherwise unconscious; and
3. When the woman is under twelve years of age or is
demented.
The crime of rape is punishable by reclusion perpetua.
xxxx
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
xxxx
The Information, to which appellant pleaded guilty, alleged that
homicide was committed by reason or on the occasion of the
rape of AAA. This, if proven, would warrant the penalty of death
at that time.26 Accordingly, a plea of guilty to such charges calls
into play the provisions of Section 3, Rule 116 of the 2000
Revised Rules of Criminal Procedure, thus Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and shall require
the prosecution to prove his guilt and the precise degree of
culpability. The accused may present evidence in his behalf.
Based on this rule, when a plea of guilty to a capital offense is
entered, there are three (3) conditions that the trial court must
observe to obviate an improvident plea of guilty by the accused:
(1) it must conduct a searching inquiry into the voluntariness
and full comprehension by the accused of the consequences of
his plea; (2) it must require the prosecution to present evidence
to prove the guilt of the accused and the precise degree of his
culpability; and (3) it must ask the accused whether he desires
to present evidence on his behalf, and allow him to do so if he
so desires. 27
There is no hard and fast rule as to how a judge may conduct a
"searching inquiry," or as to the number and character of
questions he may ask the accused, or as to the earnestness with
which he may conduct it, since each case must be measured
according to its individual merit.28 However, the logic behind the
rule is that courts must proceed with caution where the
imposable penalty is death for the reason that the execution of
such a sentence is irrevocable and experience has shown that
innocent persons have at times pleaded guilty.29 An improvident
plea of guilty on the part of the accused when capital crimes are
involved should be avoided since he might be admitting his guilt
before the court and thus forfeit his life and liberty without
having fully comprehended the meaning and import and
consequences of his plea.30 Moreover, the requirement of taking
further evidence would aid this Court on appellate review in
determining the propriety or impropriety of the plea.31
In the instant case, when the accused entered a plea of guilty at
his re-arraignment, it is evident that the RTC did not strictly
observe the requirements under Section 3, Rule 116 above. A
mere warning
that the accused faces the supreme penalty of death is
insufficient.32 Such procedure falls short of the exacting
guidelines in the conduct of a "searching inquiry," as follows:

AGUSTIN, E.P. | 109

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

was brought into the custody of the law; (b) whether
he had the assistance of a competent counsel during
the custodial and preliminary investigations; and (c)
under what conditions he was detained and
interrogated during the investigations. This is
intended to rule out the possibility that the accused
has been coerced or placed under a state of duress
either by actual threats of physical harm coming from
malevolent quarters or simply because of the judge's
intimidating robes.

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

that we will present evidence inorder [sic] that it will give also
justice to the victim.

(2) Ask the defense counsel a series of questions as

to whether he had conferred with, and completely
explained to, the accused the meaning and
consequences of a plea of guilty.

Our first witness is the ABC president.

(3) Elicit information about the personality profile of

the accused, such as his age, socio-economic status,
and educational background, which may serve as a
trustworthy index of his capacity to give a free and
informed plea of guilty.
(4) Inform the accused of the exact length of
imprisonment or nature of the penalty under the law
and the certainty that he will serve such sentence. For
not infrequently, an accused pleads guilty in the hope
of a lenient treatment or upon bad advice or because
of promises of the authorities or parties of a lighter
penalty should he admit guilt or express remorse. It is
the duty of the judge to ensure that the accused does
not labor under these mistaken impressions because
a plea of guilty carries with it not only the admission
of authorship of the crime proper but also of the
aggravating circumstances attending it, that increase
punishment.
(5) Inquire if the accused knows the crime with which
he is charged and to fully explain to him the elements
of the crime which is the basis of his indictment.
Failure of the court to do so would constitute a
violation of his fundamental right to be informed of
the precise nature of the accusation against him and
a denial of his right to due process.
(6) All questions posed to the accused should be in a
language known and understood by the latter.
(7) The trial judge must satisfy himself that the
accused, in pleading guilty, is truly guilty. The
accused must be required to narrate the tragedy or
reenact the crime or furnish its missing details.33
An examination of the records of the proceedings will illustrate
the court's treatment of appellant's change of plea, viz:
Atty. Cagaanan:

Court:
Present evidence to prove gravity of the crime.
Pros. Edmilao:

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

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

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

The court will allow the prosecutor or the defense to profound

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

Pros. Edmilao:

xxxx

EVIDENCE

AGUSTIN, E.P. | 110

Pros. Edmilao:

Objection

Q Mr. Rogelio Gumimba[,] are you the same accused in this case
in Crim. Case No. RTC 2074?

Court:

A Yes, sir.
Q Now the victim in this case is [AAA], a minor, 8 years of age[.]
Since you have admitted this in what particular place wherein
[sic] you raped and slew [AAA]?
A Purok Pantaon, Ozamiz City.
Q How far is that place wherein you slew and raped [AAA] from
her house?
A Very near, sir.
Q Can you estimate how many meters?
A One meter, sir.
Q Was it committed inside or outside the house?
A Outside.
Q In what particular place of the house[:] in front, at the side or
at the back?

Sustained.
Court:
Q When you said you raped her, you mean you inserted your
penis inside the vagina of [AAA]?
A No, Your Honor.
Q When you said you raped her, what do you mean?
A I was drank [sic] at that time.
Q And you said you tied [AAA], what did you use in tying her?
A Banana skin.
Q How did you tie [AAA]?
A I tied both her hands.
Q The hands of [AAA], you placed at the back?
A In front of her.

A At the back of the house of the victim.

Q After tying her [,] what did you do to her?
Q Will you please tell the court, how did you do it, will you
please narrate.

A After that I went home.

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

Q You did not stab [AAA]?

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

A I stabbed her, Your Honor.

A I saw her roaming around.

Q What weapon did you use in stabbing her?

Q In committing the crime, were you alone?

A A long bolo.

Atty. Anonat:

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

Objection

A Yes, Your Honor.

Court:

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

Sustained.

A No more, Your Honor.

Pros. Edmilao:

Q How many times did you stab [AAA]?

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

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

her.

Atty. Anonat:

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

EVIDENCE

AGUSTIN, E.P. | 111

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

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

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

Q When you were arraigned, you pleaded guilty, do you

understand the consequence of your pleading guilty?

A Up to my waist line.

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

Atty. Cagaanan:

Q You pleaded guilty to the offense of rape with

homicide, did you understand?

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

will?

A Yes, Your Honor, I understand.

A Yes, sir.

Q That by your pleading guilty to the offense you will be

sentenced to die?

Q Were you not forced or coerced by anybody with this

crime?

A Yes, I am aware.

A No, sir.34

Q Your act of pleading guilty to the offense charged is

your voluntary will?

The inefficacious plea of guilty notwithstanding, the totality of

the evidence for the prosecution undeniably establishes
appellant's guilt beyond reasonable doubt of the crime of rape
with homicide. Apart from his testimony upon changing his plea
to a plea of guilty, appellant gave a subsequent testimony when
he was presented by the prosecution as a witness against his coaccused. This second testimony which constitutes another
judicial confession, replete with details and made consciously as
it was, cured the deficiencies which made his earlier plea of
guilty improvident. The latter testimony left no room for doubt
as to the voluntariness and comprehension on appellant's part of
his change of plea, as well as completed his narration of how he
raped and killed the victim. The pertinent portions of the second
testimony follow, thus:

A Yes, I admitted that crime, but we were two.

Q You mean to say there were two of you who raped [AAA]?
A Yes, your Honor.
Q Before raping her, was [AAA] wearing clothes?
A Yes, Your Honor.
Q Was [AAA] wearing [a] panty before you raped her?
A Yes, Your Honor.

Pros. Jose A. Edmilao:

Q While you were gathering firewoods [sic] and Ronie Abapo
was pasturing carabao, do you recall of any untoward incident
that happened?

Q Did you remove her panty before raping her?

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

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

A No, Your Honor, my penis did not penetrate into the vagina of
[AAA].

xxxx

Q Why your penis did [sic] not able to penetrate into the vagina
of [AAA]?

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

say you were close to the place [AAA] was?

A The vagina of [AAA] is very small.

A I, together with Ronie Abapo go [sic] near to the place [AAA]

was.

Q Can you tell this Court how tall was [AAA]?

A (The witness demonstrated that from the floor about 3 feet
high was the height of [AAA])

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

EVIDENCE

AGUSTIN, E.P. | 112

Q When she came down, what followed next then?

A I removed my t-shirt.

A We held her hands.

Q How about your pants?

Q Who held her hands?

A I also removed my pants.

A The two of us.

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

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

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

Atty. Anonat:

Q Who covered her mouth? You or Ronie?

Objection, leading.

A Ronie.

Pros. Edmilao:

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

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

A I was just near to [sic] them.

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

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

Q Who tied the hands of [AAA]?

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

A Both of us.

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

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

A I also raped her.

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

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

grassy place?

A It did not enter [sic].

A We killed her.

Q Why?

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

A It did not penetrate, because I was afraid.

A We raped her.

Q But your penis erected [sic]?

Q Who raped her first?

A No, Your Honor.

A It was Ronie Abapo, then followed by me.

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

Q How did you rape her?

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

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

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

Q How did you let your penis out?

EVIDENCE

AGUSTIN, E.P. | 113

A We undressed her.

A That we will kill [AAA].

Q Why did you undress her?

Q How did he tell you that?

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

her.

A Rowing[,] we will kill her.

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

A We raped her.
Q When you said we raped her, you mean, you inserted your
penis inside the vagina of [AAA]?
A No, sir.
Q But you tried to insert your penis inside the vagina?
A Yes, sir.
Q And your penis touched the vagina of [AAA]?
A Yes, sir.
Q Only your penis was not able to enter the vagina because
[AAA] is [sic] still a small girl?
A Yes, sir.
Q After trying to insert your penis after Ronie Abapo, what did
you do to [AAA]?

Q And what was your reply?

A I refused.
Q When you refused, what did he do then?
A He keep [sic] on persuading me.
Q And what did eventually came [sic] to your mind?
A Evil came to my mind, so we killed her.
Q How did you kill her?
A We stabbed her.
Q What weapon you used [sic] when you killed her?
A A long bolo.
Q Whose [sic] the owner of that long bolo?
A Mine, but Ronie Abapo used it.
Q Who was the first one to use it?

A I walked away, but he called me.

A Ronie Abapo.
Q Who called you?
A Ronie Abapo.
Q Why did he call you?
A He asked me, what to do with [AAA]. It might be that she will
tell us to somebody [sic], we will kill her.
Q What did you do?
A I did not answer.
Q And what was your answer?
A Because he keep [sic] on persuading me.
Q How did he persuade you?
A He persuaded me because we might be caught.
Q And what did he tell you to do?

EVIDENCE

Q But the bolo was in your hands, how did [sic] he be able to
use it?
A I put it on the ground and he got it.
Q You said that he made the first struck [sic]. Where was [AAA]
first hit?
A In the stomach.
Q How many times did Ronie Abapo strike her with the use of
that bolo?
A I cannot remember anymore.
Q Aside from the stomach, where were the other pants [sic] of
[AAA] also hit?
A At the left side.
Q How about you, did you made [sic] the following stab to
[AAA]?

AGUSTIN, E.P. | 114

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

A Sofronio Aranas.

Q How many times?

Q Who else?

A Only one.

A Rico Magallano.

Q What part of her body was she hit?

Q Who else?

A At the stomach.

A The wife of Panyong.

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

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

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

A Yes, sir.

A I was alone.

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

Q And did you tell her that you were two in killing and raping
with Ronie Abapo?

A He [sic] was already dead.

A No, sir.

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

Q Why not?

A I just stabbed her, because I thought that she was still alive.

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

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

xxxx
Q Do you know where is [sic] the bolo used in stabbing [AAA]?
A No, sir.
Q After killing [AAA], where did you place the bolo?
A In our place.
Q It [sic] it there in your home?

Q When you reported to these persons you have mentioned, did

you also tell them that you were together with Ronie Abapo in
killing and raping?
A No, sir.35
While the trial court found appellant's second testimony insofar
as it implicated his co-accused to be unworthy of credence,
there is absolutely nothing on record which militates against its
use as basis for establishing appellant's guilt. In fact, in his Brief,
appellant submits that he must be convicted of simple rape
alone and not rape with homicide. Thus, he admits in writing,
albeit implicitly, that he raped the victim.

A Already taken.
Q Who got?
A The barangay captain.
Q Now, did you tell to [sic] anybody regarding the raping and
killing of [AAA] aside from here in Court?
A I have already told.
Q Who was the person whom you talked about [sic]?
A My neighbor.
Q Whose [sic] the name of that neighbor?
A Emilio Magallano.

Convictions based on an improvident plea of guilt are set aside

only if such plea is the sole basis of the judgment. If the trial
court relied on sufficient and credible evidence to convict the
accused, the conviction must be sustained, because then it is
predicated not merely on the guilty plea of the accused but on
evidence proving his commission of the offense charged.36 Thus,
as we have ruled in People v. Derilo:37
While it may be argued that appellant entered an improvident
plea of guilty when re-arraigned, we find no need, however, to
remand the case to the lower court for further reception of
evidence. As a rule, this Court has set aside convictions based
on pleas of guilty in capital offenses because of improvidence
thereof and when such plea is the sole basis of the
condemnatory judgment. However, where the trial court
receives evidence to determine precisely whether or not the
accused has erred in admitting his guilt, the manner in which the
plea of guilty is made (improvidently or not) loses legal
significance, for the simple reason that the conviction is based
on evidence proving the commission by the accused of the
offense charged.

Q After Emilio Magallano[,] to whom did you report?

EVIDENCE

AGUSTIN, E.P. | 115

Thus, even without considering the plea of guilty of appellant, he

may still be convicted if there is adequate evidence on record on
which to predicate his conviction. x x x x
Here, the prosecution was able to establish, through the
separate testimonies of appellant, that at around 1:00 o'clock in
the afternoon of 8 April 1997, appellant was gathering firewood
not far from the house of the victim AAA in Barangay Pantaon,
Ozamiz City. He met co-accused Ronie Abapo who was then
pasturing his carabao also within the vicinity of the victim's
home. They spotted the victim picking oranges with her three
(3)-year old brother at the back of their house and together
approached her from behind, tied her hands with banana skin
and dragged her to a grassy place.38 Abapo raped the victim
first.39 Thereafter, appellant followed suit.40 Once they had
finished with their dastardly acts, they stabbed and killed the
victim with a long bolo which belonged to appellant.41
Through the testimony of the physician who conducted the
autopsy on AAA's body, it was established that the victim had 6
and 12 o'clock lacerations on her external genital organ. Thus, it
is clear that the rape was consummated.
Appellant challenges the testimonies of the witnesses Magallano
and Araas on what appellant had confessed to or told them for
being hearsay. The challenge fails. The testimonies, it should be
conceded, cannot serve as a proof of extrajudicial confession for
an extrajudicial confession has to be in writing, among others, to
be admissible in evidence.42 That is why the testimonies are of
use in the case as corroborative evidence only. Such utility,
however, cannot be defeated by the hearsay rule. The
testimonies covered are independently relevant statements
which are not barred by the hearsay rule.1awphi1.net
Under the doctrine of independently relevant statements, only
the fact that such statements were made is relevant, and the
truth or falsity thereof is immaterial. The hearsay rule does not
apply. The statements are admissible as evidence. Evidence as
to the making of such statement is not secondary but primary,
for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.43
Moreover, where, as in the case at bar, there is no evidence to
show any dubious reason or improper motive for a prosecution
witness to bear false testimony against the accused or falsely
implicate him in a crime, his or her testimony should be given
full faith and credit.44
Next, we address appellant's contention that he can only be
convicted of simple rape, as this is the only crime to which he
has owned up. Arguing that the victim may have already been
dead after his co-accused had allegedly hacked her first,
appellant theorizes that he, at most, would be guilty of an
impossible crime.
Appellant is clutching at straws. It is extremely doubtful that
appellant could have known positively that the victim was
already dead when he struck her. The proposition not only
completely contradicts his judicial confession, it is also
speculative as to cause of death. In light of the particular
circumstances of the event, appellant's mere conjecture that
AAA had already expired by the time he hacked her cannot be
sufficient to support his assertion of an impossible crime. An
examination of the testimony is again called for, thus:
Pros. Edmilao:

EVIDENCE

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

AGUSTIN, E.P. | 116

is sentenced to suffer the penalty of reclusion perpetua without

eligibility for parole and to pay the heirs of the victim, AAA, in
the amounts of P100,000.00 as civil indemnity, P75,000.00 as
moral damages, P25,000.00 as temperate damages, and
P100,000.00 as exemplary damages, plus costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 117

Republic of the Philippines

SUPREME COURT
Manila

At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son
Arnel, among other persons, on being informed of the shooting
of Arthur Ronquillo (the victim), repaired to where he was, not
far from his residence, and found him lying on his side and
wounded. Although gasping for breath, he was able to utter to
Mirasol, within the hearing distance of Arnel, that he was shot by
Badjing3 and Amado.

SECOND DIVISION
G.R. No. 173608

November 20, 2008

JESUS GERALDO and AMADO ARIATE, petitioners

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Petitioners who were suspected to be the "Badjing" and

"Amado" responsible for the shooting of the victim were
subjected to paraffin tests at the Philippine National Police (PNP)
Crime Laboratory in Butuan City. In the PNP Chemistry Report
No. C-002-2002-SDS,4 the following data are reflected:

DECISION

xxxx

CARPIO MORALES, J.:

Petitioners Jesus Geraldo and Amado Ariate
were, by Information dated December 23, 2002
filed on December 27, 2002 before the
Regional Trial Court of Surigao del Sur, charged
with Homicide allegedly committed as follows:

TIME AND DATE RECEIVED

1105H 03 July 2002

REQUESTING PARTY/UNIT

Chief
of
Lanuza
Police
Lanuza, Surigao del Sur

SPECIMEN SUBMITTED
x x x [O]n the 1st day of July, 2002
at about 3:00 o'clock early morning, more or less, at
Sitio Tinago, Barangay Bunga, municipality of Lanuza,
province of Surigao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and mutually helping one
another, armed with xxx handguns and with intent to
kill, did, then and there, willfully, unlawfully and
feloniously sho[o]t one ARTHUR U.1 RONQUILLO,
thereby hitting and inflicting upon the latter wounds
described hereunder:

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

Jesus Geraldo Jr. alias Bajing

Amado Ariate

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

POINT OF ENTRY:

To determine the presence of gunpowder

residue, Nitrates. /x/x/x/

1. Right lumbar area

2. Right iliac area

FINDINGS:

POINT OF EXIT

Qualitative examination conducted on

specimens A and B gave NEGATIVE results
for powder residue, Nitrates. /x/x/x/

1. Left lateral area of abdomen

2. Right hypogastric area

CONCLUSION:

which wounds have caused the instantaneous death

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

P50,000.00

as life indemnity of the victim;

10,000.00

as moral damages;

10,000.00

as exemplary damages; and

40,000.00

as actual damages.

Specimens A and B do not reveal the

presence of gunpowder residue, Nitrates.
/x/x/x/
REMARKS:
The original copy of this report is retained
in this laboratory for future reference.
TIME AND DATE COMPLETED:
1700H 03 July 2002

CONTRARY TO LAW.2
x x x x (Underscoring supplied)

EVIDENCE

Police
Station

AGUSTIN, E.P. | 118

In a document dated July 1, 2002 and denominated as

"Affidavit"5 which was subscribed and sworn to before Clerk of
Court II Manuel A. Balasa, Sr. on July 26, 2002, the victim's son
Arnel gave a statement in a question and answer style that
herein petitioners Jesus Geraldo and Amado Ariate were the
ones who shot his father.

Denied. I am warning you, all of you.

ATTY. AUZA
With the denial of our motion for
reconsideration, I move to tender exclusive
evidence. He would have identified this
result. The paraffin test, which [forms]
part of the affidavit of this witness
attached to the record of this case on page
29. May I ask that this will be marked as
Exhibit "3" for the defense.

In another document dated July 4, 2002 also denominated as

"Affidavit"6 which was subscribed and sworn to also before the
same Clerk of Court II Balasa on July 26, 2002, Mirasol also gave
a statement in a question and answer style that her father
uttered that herein petitioners shot him.
At the witness stand, Mirasol echoed her father's declaration that
"Badjing" and "Amado" shot him. Arnel substantially
corroborated Mirasol's statement.7

COURT
Mark
it.
supplied)

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

(Marked).10

(Underscoring

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

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

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

EVIDENCE

. . . She talks straightforward, coherent and clear,

very intelligent, with child mannerism[s]. While
testifying she was criss-crossing her hands, touching
anything within her reach, innocent and simple,
pressing of[f] and on her stomach but she talks with
correct grammar. No doubt, this Court was convinced
of her testimony which was corroborated by her
brother Arnel Ronquillo.14
On the nature and weight of the dying declaration of the victim,
the trial court observed:
A dying declaration may be xxx oral or in writing. As a
general rule, a dying declaration to be admissible
must be made by the declarant while he is conscious
of his impending death. However, even if a declarant

AGUSTIN, E.P. | 119

did not make a statement that he was on the brink of

death, the degree and seriousness of the wound and
the fact that death supervened shortly afterwards
may be considered as substantial evidence that the
declaration was made by the victim with full
realization that he was in a dying condition; People
vs. Ebrada, 296 SCRA 353.
Even assuming that the declaration is not admissible
as a dying declaration, it is still admissible as part of
the res gestae since it was made shortly after the
startling occurrence and under the influence thereof,
hence, under the circumstances, the victim evidently
had no opportunity to contrive.15 (Underscoring
supplied)
Finding for the prosecution, the trial court convicted petitioners,
disposing as follows:
WHEREFORE, finding the accused JESUS GERALDO y
CUBERO and AMADO ARIATE y DIONALDO guilty
beyond reasonable doubt of the crime of Homicide
penalized under Article 249 of the Revised Penal Code
and with the presence of one (1) aggravating
circumstance of night time and applying the
Indeterminate Sentence Law, the maximum term of
which could be properly imposed under the rules of
said code and the minimum which shall be within the
range of the penalty next lower to that prescribe[d]
by the code for the offense, hereby sentences each to
suffer the penalty of TEN (10) YEARS and ONE (1)
DAY of Prision Mayor minimum to SEVENTEEN (17)
YEARS, FOUR (4) MONTHS and ONE (1) DAY of
Reclusion Temporal maximum as maximum, with all
the accessory penalties provided for by law. To pay
the heirs of the victim the amount of P50,000.00 as
life indemnity, P100,000.00 as moral damages and
P20,000.00 as exemplary damages. The claim for
actual damages is denied, there being no evidence to
support the same.
The bail bond put up by the accused Jesus Geraldo
and Amado Ariate are ordered cancelled and to pay
the cost.
SO ORDERED.16 (Underscoring supplied)
The Court of Appeals, by Decision of June 30, 2006,17 affirmed
with modification the trial court's decision. It found that the trial
court erred in appreciating nocturnity as an aggravating
circumstance. And it reduced the award of moral damages18 to
P50,000, and deleted the award of exemplary damages. Thus
the Court of Appeals disposed:
WHEREFORE, in view of the foregoing, the appealed
decision is hereby AFFIRMED save for the
modification of the penalty imposed. Accordingly,
accused-appellants are each hereby sentenced to
suffer an indeterminate penalty of Eight (8) years,
Five (5) Months and One (1) Day of prision mayor
medium as minimum, to Seventeen (17) Years and
Four (4) Months of reclusion temporal medium as
maximum, with all accessory penalties provided by
law, and to jointly and solidarily pay the heirs of the
victim the amount of P50,000.00 as indemnity and
P50,000.00 as moral damages.

EVIDENCE

SO ORDERED.19 (Italics in the original)

Hence, the present Petition20 raising the following issues:
I
WHETHER OR NOT THE IDENTIT[IES] OF THE
ACCUSED-APPELLANTS AS THE ALLEGED ASSAILANT
HAS BEEN ADEQUATELY ESTABLISHED AS PER
EVIDENCE ON RECORD?
II
WHETHER OR NOT THE IDENTIT[IES] OF THE
ACCUSED-APPELLANTS HAD BEEN ESTABLISHED BY
PROOF BEYOND REASONABLE DOUBT?21 (Emphasis
and underscoring supplied)
Petitioners argue:
With due respect, herein petitioners disagree with the
holding of the Honorable Court of Appeals that "It is
not necessary that the victim further identify that
"Badjing" was in fact Jesus Geraldo or that "Amado"
was Amado Ariate" because, [so petitioners contend],
it is the obligation of the prosecution to establish
with moral certainty that indeed the persons they
identified as the as the assailant of Arthur O.
Ronquillo were really the ones who perpetrated the
crime.
Admittedly, prosecution witnesses were able to
identify positively herein petitioners as the alleged
assailant[s] of Arthur O. Ronquillo. But said
identification is based on the assumption that
they were the very same "BADJING AMADO" and/or
"BADJING AND AMADO" referred to by their deceased
father in his dying declaration.
What the Honorable Court of Appeals failed to
consider is that, just because the victim declared that
it was "BADJING AMADO" and/or "BADJING AND
AMADO" who shot him does not necessarily follow
that herein petitioners were really the perpetrators in
the absence of proof that the "BADJING" referred to
by him is Jesus Geraldo and that the "AMADO" is
Amado Ariate. It would have been a different story
had the prosecution witnesses [been] eyewitnesses
because proof that the "BADJING AMADO" and/or
"BADJING AND AMADO" referred to by the victim and
the persons identified by the prosecution witnesses
are the same is unnecessary.
Herein petitioners believe, that even assuming that
there are no other "BADJING" or "AMADO" in the
barangay, still it does not follow that the person[s]
referred to by the dying declarant as his assailant
were Jesus Geraldo alias "BADJING" and Amado
Ariate alias "AMADO". Although, it is inconceivable
how the Honorable Court of Appeals arrived at the
said conclusion that there are no other "BADJING
AMADO" and/or "BADJING AND AMADO" in the
barangay absent any proof to that effect from the
prosecution.22 (Underscoring in the original)

AGUSTIN, E.P. | 120

The petition is impressed with merit.

The trial court relied on the dying declaration of the victim as
recounted by his daughter Mirasol and corroborated by his son
Arnel.
A dying declaration is admissible as evidence if the following
circumstances are present: (a) it concerns the cause and the
surrounding circumstances of the declarant's death; (b) it is
made when death appears to be imminent and the declarant is
under a consciousness of impending death; (c) the declarant
would have been competent to testify had he or she survived;
and (d) the dying declaration is offered in a case in which the
subject of inquiry involves the declarant's death.23
There is no dispute that the victim's utterance to his children
related to the identities of his assailants. As for the victim's
consciousness of impending death, it is not necessary to prove
that he stated that he was at the brink of death; it suffices that,
judging from the nature and extent of his injuries, the
seriousness of his condition was so apparent to him that it may
safely be inferred that such ante mortem declaration was made
under consciousness of an impending death.24 The location of
the victim's two gunshot wounds, his gasping for breath, and his
eventual death before arriving at the hospital meet this
requirement.25
It has not been established, however, that the victim would have
been competent to testify had he survived the attack. There is
no showing that he had the opportunity to see his assailant.
Among other things, there is no indication whether he was shot
in front, the post-mortem examination report having merely
stated that the points of entry of the wounds were at the "right
lumbar area" and the "right iliac area."26 "Lumbar" may refer to
"the loins" or "the group of vertebrae lying between the thoracic
vertebrae and the sacrum,"27 or to "the region of the abdomen
lying on either side of the umbilical region and above the
corresponding iguinal."28 "Iliac" relates to the "ilium," which is
"one of the three bones composing either lateral half of the
pelvis being in man broad and expanded above and narrower
below where it joins with the ischium and pubis to form part of
the actabulum."29

Contrary, however, to the immediately-quoted ruling of the

appellate court, it is the prosecution, not petitioners, which had
the burden of proving that petitioners were, at the material time,
the only ones in the barangay who bore such nicknames or
aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive is
essential for their conviction.33 The Court notes that in their
affidavits supporting the criminal complaint, the victim's wife and
children Mirasol and Arnel proffered not knowing any possible
motive for petitioners to shoot the victim.34 At the trial, no
evidence of any motive was presented by the prosecution.
Petitioners' defense of denial and alibi thus assumes importance.
Specifically with respect to petitioner Ariate, the victim's wife
admitted that Ariate accompanied her family in bringing the
victim to the hospital.35 While non-flight does not necessarily
indicate innocence, under the circumstances obtaining in the
present case, Ariate's spontaneous gesture of immediately
extending assistance to the victim after he was advised by the
Barangay Kagawad of the victim's fate raises reasonable doubt
as to his guilt of the crime charged.36
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals dated June 30, 2006 affirming with modification
the Decision of Branch 41 of the Surigao del Sur Regional Trial
Court is REVERSED and SET ASIDE. Petitioners Jesus Geraldo
and Amado Ariate are ACQUITTED of the charge of Homicide
for failure of the prosecution to establish their guilt beyond
reasonable doubt.
Let a copy of this Decision be furnished the Director of the
Bureau of Corrections, Muntinlupa City who is directed to cause
the immediate release of petitioners unless they are being
lawfully held for another cause, and to inform this Court of
action taken within ten (10) days from notice hereof.
SO ORDERED.

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

admissible in evidence, it must identify the assailant with
certainty; otherwise it loses its significance.30
In convicting petitioners, the trial court, as stated earlier, relied
on the testimony of the victim's daughter Mirasol, which was
corroborated by her brother Arnel, that the "Badjing" and
"Amado" mentioned by the victim as his assailants are herein
petitioners whom they claimed to know because they live in the
same barangay.31 The Court of Appeals believed too the siblings'
testimonies, holding that
It is not necessary that the victim further identify that
"Badjing" was in fact Jesus Geraldo or that "Amado"
was Amado Ariate. There was never an issue as to
the identity of the accused. There was no other
person known as "Badjing" or "Amado" in their
neighborhood or in their barangay. Accusedappellants never presented any proof that a
person in their locality had the same aliases or
names as they. It is not uncommon that even an
eight-year-old child can identify that Jesus Geraldo
was known as "Badjing" and that Amado Ariate was
"Amado."32 (Underscoring supplied)

EVIDENCE

AGUSTIN, E.P. | 121

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172031

July 14, 2008

JUANITO TALIDANO, Respondents.

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

EVIDENCE

On 5 November 2001, the Labor Arbiter rendered judgment

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

AGUSTIN, E.P. | 122

It appears that respondent received a copy of the NLRC

Resolution17 on 24 September 2002 and that said resolution
became final and executory on 7 October 2002.18
Private respondent brought the case to the Court of Appeals via
a Petition for Certiorari19 on 8 October 2002. The petition,
docketed as CA-G.R. Sp. No. 73521, was dismissed on
technicality in a Resolution dated 29 October 2002. The
pertinent portion of the resolution reads:
(1) [T]he VERIFICATION AND CERTIFICATION OF
NON-FORUM SHOPPING was signed by one Florida Z.
Jose, President of petitioner Falcon Maritime and
Allied Services, Inc., without proof that she is the duly
authorized representative of petitioner-corporation;
(2) [T]here is no affidavit of service of the petition to
the National Labor Relations Commission and to the
adverse party;
(3) [T]here is no explanation to justify service by mail
in lieu of the required personal service. (Citations
omitted)20
An entry of judgment was issued by the clerk of court on 23
November 2002 stating that the 29 October 2002 Resolution had
already become final and executory.21 Meanwhile, on 12
November 2002, private respondent filed another petition before
the Court of Appeals,22 docketed as CA G.R. SP No. 73790. This
is the subject of the present petition.
Petitioner dispensed with the filing of a comment.23 In his
Memorandum,24 however, he argued that an entry of judgment
having been issued in CA-G.R. SP No. 73521, the filing of the
second petition hinging on the same cause of action after the
first petition had been dismissed violates not only the rule on
forum shopping but also the principle of res judicata. He
highlighted the fact that the decision subject of the second
petition before the Court of Appeals had twice become final and
executory, with entries of judgment made first by the NLRC and
then by the Court of Appeals.
The appellate court ultimately settled the issue of prescription,
categorically declaring that the one-year prescriptive period
applies only to employment contracts entered into as of 1
January 1997 and not those entered prior thereto, thus:
x x x The question of prescription is untenable. Admittedly, POEA
Memorandum Circular [No.] 55 prescribing the standard terms of
an employment contract of a seafarer was in effect when the
respondent was repatriated on January 21, 1997. This
administrative issuance was released in accordance with
Department Order [No.] 33 of the Secretary of Labor directing
the revision of the existing Standard Employment Contract to be
effective by January 1, 1997. Section 28 of this revised contract
states: all claims arising therefrom shall be made within one year
from the date of the seafarers return to the point of hire.
It is crystal clear that the one-year period of prescription of
claims in the revised standard contract applies only to
employment contracts entered into as of January 1, 1997. If
there is still any doubt about this, it should be removed by the
provision of Circular [No.] 55 which says that the new schedule
of benefits to be embodied in the standard contract will apply to
any Filipino seafarer that will be deployed on or after the
effectivity of the circular.

EVIDENCE

The respondent was deployed before January 1, 1997. As

acknowledged by the petitioners, the rule prior to Circular [No.]
55 provided for a prescriptive period of three years. We cannot
avoid the ineluctable conclusion that the claim of the respondent
was filed within the prescriptive period.25
Despite ruling that prescription had not set in, the appellate
court nonetheless declared petitioners dismissal from
employment as valid and reinstated the Labor Arbiters decision.
The appellate court relied on the fax messages issued by the
ship master shortly after petitioner had committed a serious
neglect of his duties. It noted that the said fax messages
constitute the res gestae. In defending the non-presentation of
the logbook, it stated that three years had already passed since
the incident and Hansu was no longer the principal of private
respondent.
Petitioners motion for reconsideration was denied. Hence he
filed this instant petition.
Citing grave abuse of discretion on the part of the Court of
Appeals, petitioner reiterates his argument that the appellate
court should not have accepted the second petition in view of
the fact that a corresponding entry of judgment already has
been issued. By filing the second petition, petitioner believes
that private respondent has engaged in forum shopping.26
Private respondent, for its part, defends the appellate court in
taking cognizance of the second petition by stressing that there
is no law, rule or decision that prohibits the filing of a new
petition for certiorari within the reglementary period after the
dismissal of the first petition due to technicality.27 It rebuts
petitioners charge of forum shopping by pointing out that the
dismissal of the first petition due to technicality has not ripened
into res judicata, which is an essential element of forum
shopping.28
In determining whether a party has violated the rule against
forum shopping, the test to be applied is whether the elements
of litis pendentia are present or whether a final judgment in one
case will amount to res judicata in the other.29 This issue has
been thoroughly and extensively discussed and correctly
resolved by the Court of Appeals in this wise:
The respondents two arguments essay on certain developments
in the case after the NLRC rendered its decision. He points out
with alacrity that an entry of judgment was issued twice first
by the NLRC with respect to its decision and then by the Ninth
Division of the Court of Appeals after it dismissed on technical
grounds the first petition for certiorari filed by the petitioner.
Neither event, for sure, militates against the institution of a
second petition for certiorari. A decision of the NLRC is never
final for as long as it is the subject of a petition for certiorari that
is pending with a superior court. A contrary view only demeans
our certiorari jurisdiction and will never gain currency under our
system of appellate court review. It is more to the point to ask if
a second petition can stand after the first is dismissed, but under
the particular circumstances in which the second was brought,
we hold that it can. The theory of res judicata invoked by the
respondent to bar the filing of the second petition does not
apply. The judgment or final resolution in the first petition must
be on the merits for res judicata to inhere, and it will not be on
the merits if it is founded on a consideration of only technical or
collateral points. Yet this was exactly how the first petition was
disposed of. SP 73521 was dismissed as a result of the failure of
the petitioner to comply with the procedural requirements of a

AGUSTIN, E.P. | 123

petition for certiorari. The case never touched base. There was
no occasion for the determination of the substantive rights of the
parties and, in this sense, the merits of the case were not
involved. The petitioner had actually the option of either refilling
[sic] the case or seeking reconsideration in the original action. It
chose to file SP 73790 after realizing that it still had enough time
left of the original period of 60 days under Rule 65 to do so.

Private respondent also asserts that petitioner was not dismissed

but that he voluntarily asked for his repatriation. This assertion,
however, deserves scant consideration. It is highly illogical for an
employee to voluntarily request for repatriation and then file a
suit for illegal dismissal. As voluntary repatriation is synonymous
to resignation, it is proper to conclude that repatriation is
inconsistent with the filing of a complaint for illegal dismissal.36

Since the dismissal of the first petition did not ripen into res
judicata, it may not be said that there was forum shopping with
the filing of the second. The accepted test for determining
whether a party violated the rule against forum shopping insofar
as it is applicable to this setting is whether the judgment or final
resolution in the first case amounts to res judicata in the second.
Res judicata is central to the idea of forum shopping. Without it,
forum shopping is non-existent. The dismissal of the first
petition, moreover, if it does not amount to res judicata, need
not be mentioned in the certification of non-forum shopping
accompanying the second action. The omission will not be fatal
to the viability of the second case. (Citations omitted)30

The paramount issue therefore boils down to the validity of

petitioners dismissal, the determination of which generally
involves a question of fact. It is not the function of this Court to
assess and evaluate the facts and the evidence again, our
jurisdiction being generally limited to reviewing errors of law that
might have been committed by the trial court or administrative
agency. Nevertheless, since the factual findings of the Court of
Appeals and the Labor Arbiter are at variance with those of the
NLRC, we resolve to evaluate the records and the evidence
presented by the parties.37

Private respondent, in turn, questions the propriety of the

instant certiorari petition and avers that the issues raised by
petitioner can only be dealt with under Rule 45 of the Rules of
Court.31 Against this thesis, petitioner submits that the
acceptance of the petition is addressed to the sound discretion
of this Court.32
The proper remedy to assail decisions of the Court of Appeals
involving final disposition of a case is through a petition for
review under Rule 45. In this case, petitioner filed instead a
certiorari petition under Rule 65. Notwithstanding this procedural
lapse, this Court resolves to rule on the merits of the petition in
the interest of substantial justice,33 the underlying consideration
in this petition being the arbitrary dismissal of petitioner from
employment.
Petitioner submits that the Court of Appeals erred in relying
merely on fax messages to support the validity of his dismissal
from employment. He maintains that the first fax message
containing the information that the vessel encroached on a
different route was a mere personal observation of the ship
master and should have thus been corroborated by evidence,
and that these fax messages cannot be considered as res gestae
because the statement of the ship master embodied therein is
just a report. He also contends that he has not caused any
immediate danger to the vessel and that if he did commit any
wrongdoing, the incident would have been recorded in the
logbook. Thus, he posits that the failure to produce the logbook
reinforces the theory that the fax messages have been
concocted to justify his unceremonious dismissal from
employment. Hence, he believes that his dismissal from
employment stemmed from his filing of the complaint with the
ITF which his superiors resented.34
Private respondent insists that the appellate court is correct in
considering the fax messages as res gestae statements. It
likewise emphasizes that non-presentment of the logbook is
justified as the same could no longer be retrieved because
Hansu has already ceased to be its principal. Furthermore, it
refutes the allegation of petitioner that he was dismissed
because he filed a complaint with the ITF in behalf of his fellow
crew members. It claims that petitioners allegation is a hoax
because there is no showing that the alleged complaint has been
received by the ITF and that no action thereon was ever taken
by the ITF.35

EVIDENCE

The validity of an employee's dismissal hinges on the satisfaction

of two substantive requirements, to wit: (1) the dismissal must
be for any of the causes provided for in Article 282 of the Labor
Code; and (2) the employee was accorded due process, basic of
which is the opportunity to be heard and to defend himself.38
The Labor Arbiter held that petitioners absence during his watch
duty when an emergency call was received from the Japanese
port authority that M/V Phoenix Seven was "invading other
route" constituted neglect of duty, a just cause for terminating
an employee. Records reveal that this information was related to
private respondent via two fax messages sent by the captain of
M/V Phoenix Seven. The first fax message dated 18 January
1997 is reproduced below:
JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER
THAT THEY DECIDED TO DISCHARGE 2/OFFICER AT OSAKA
PORT.
DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.
CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM
JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT SHIP IS
INVADING OTHER ROUTE.
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O
NOT CARRY OUT HIS WATCH DUTY.
MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT
HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE
WILL COME BACK HOME.
FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE
SCALE.
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH
I.E.U.
PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39
The second fax message dated 20 January 1997 pertained to a
report of crew discharge essentially containing the same
information as the first fax message. The Court of Appeals
treated these fax messages as part of the res gestae proving
neglect of duty on the part of petitioner.

AGUSTIN, E.P. | 124

Section 42 of Rule 13040 of the Rules of Court mentions two acts

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

EVIDENCE

merit petitioners dismissal, then it would have been recorded in

the logbook. Private respondent would have then had all the
more reason to preserve it considering that vital pieces of
information are contained therein.
In Haverton Shipping Ltd. v. NLRC,46 the Court held that the
vessels logbook is an official record of entries made by a person
in the performance of a duty required by law.47 In Abacast
Shipping and Management Agency, Inc. v. NLRC,48 a case cited
by petitioner, the logbook is a respectable record that can be
relied upon to authenticate the charges filed and the procedure
taken against the employees prior to their dismissal.49 In Wallem
Maritime Services, Inc. v. NLRC,50 the logbook is a vital evidence
as Article 612 of the Code of Commerce requires the ship captain
to keep a record of the decisions he had adopted as the vessel's
head.51 Therefore, the non-presentation of the logbook raises
serious doubts as to whether the incident did happen at all.
In termination cases, the burden of proving just or valid cause
for dismissing an employee rests on the employer.52 Private
respondent miserably failed to discharge this burden.
Consequently, the petitioners dismissal is illegal.
We also note that private respondent failed to comply with the
procedural due process requirement for terminating an
employee. Such requirement is not a mere formality that may be
dispensed with at will. Its disregard is a matter of serious
concern since it constitutes a safeguard of the highest order in
response to man's innate sense of justice. The Labor Code does
not, of course, require a formal or trial type proceeding before
an erring employee may be dismissed. This is especially true in
the case of a vessel on the ocean or in a foreign port. The
minimum requirement of due process in termination
proceedings, which must be complied with even with respect to
seamen on board a vessel, consists of notice to the employees
intended to be dismissed and the grant to them of an
opportunity to present their own side of the alleged offense or
misconduct, which led to the management's decision to
terminate. To meet the requirements of due process, the
employer must furnish the worker sought to be dismissed with
two written notices before termination of employment can be
legally effected, i.e., (1) a notice which apprises the employee of
the particular acts or omissions for which his dismissal is sought;
and (2) the subsequent notice after due hearing which informs
the employee of the employers decision to dismiss
him.531avvphi1
Private respondents sole reliance on the fax messages in
dismissing petitioner is clearly insufficient as these messages
were addressed only to itself. No notice was ever given to
petitioner apprising him in writing of the particular acts showing
neglect of duty. Neither was he informed of his dismissal from
employment. Petitioner was never given an opportunity to
present his side. The failure to comply with the two-notice rule
only aggravated respondents liability on top of dismissing
petitioner without a valid cause.
Pursuant to Section 10 of Republic Act No. 804254 or the Migrant
Workers Act, employees who are unjustly dismissed from work
are entitled to an amount representing their three (3) months
salary considering that their employment contract has a term of
exactly one (1) year plus a full refund of his placement fee, with
interest at 12% per annum.55
IN LIGHT OF THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals is REVERSED and SET ASIDE.
The Decision of the NLRC is REINSTATED with the
MODIFICATION that in addition to the payment of the sum

AGUSTIN, E.P. | 125

equivalent to petitioners three (3) months salary, the full

amount of placement fee with 12% legal interest must be
refunded.
SO ORDERED.
DANTE O. TINGA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 126

Republic of the Philippines

SUPREME COURT
Manila

Point of Hire

SECOND DIVISION
G.R. No. 169606

MANILA, PHILIPPINES9

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

declaration10 dated 10 June 2002 stating that:

November 27, 2009

BERNARDO B. JOSE, JR., Petitioner,

vs.
MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING
SERVICES, INC., Respondents.
DECISION

In order to implement the Drug and Alcohol Policy on board the

managed vessels the following with [sic] apply:
All alcoholic beverages, banned substances and unprescribed
drugs including but not limited to the following: Marijuana
Cocaine Phencyclidine Amphetamines Heroin Opiates are banned
from Stelmar Tankers (Management) Ltd. managed vessels.
Disciplinary action up to and including dismissal will be taken
against any employee found to be in possession of or impaired
by the use of any of the above mentioned substances.

CARPIO, J.:
The Case
This is a petition1 for review on certiorari under Rule 45 of
the Rules of Court. The petition challenges the 11 May
2005 Decision2 and 5 August 2005 Resolution3 of the
Court of Appeals in CA-G.R. SP No. 83272. The Court of
Appeals set aside the 19 January4 and 22 March5 2004
Resolutions of the National Labor Relations Commission
(NLRC) in NLRC NCR CA No. 036666-03 and reinstated
the 18 June 2003 Decision6 of the Labor Arbiter in NLRC
NCR OFW Case No. (M)02-12-3137-00.
The Facts

A system of random testing for any of the above banned

substances will be used to enforce this policy. Any refusal to
submit to such tests shall be deemed as a serious breach of the
employment contract and shall result to the seamans dismissal
due to his own offense.
Therefore any seaman will be instantly dismissed if:
xxx
They are found to have positive trace of alcohol or any of the
banned substances in any random testing sample.

Michaelmar Philippines, Inc. (MPI) is the Philippine agent of

Michaelmar Shipping Services, Inc. (MSSI). In an undertaking7
dated 2 July 2002 and an employment contract8 dated 4 July
2002, MSSI through MPI engaged the services of Bernardo B.
Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment
contract stated:
That the employee shall be employed on board under the
following terms and conditions:

1.1 Duration of
Contract

EIGHT (8) MONTHS

Position

OILER

Basic
Salary

Monthly

US$ 450.00 & US$

TANKER ALLOWANCE

Jose, Jr. began performing his duties on board the M/T Limar on
21 August 2002. On 8 October 2002, a random drug test was
conducted on all officers and crew members of M/T Limar at the
port of Curacao. Jose, Jr. was found positive for marijuana. Jose,
Jr. was informed about the result of his drug test and was asked
if he was taking any medication. Jose, Jr. said that he was taking
Centrum vitamins.
Jose, Jr. was allowed to continue performing his duties on board
the M/T Limar from 8 October to 29 November 2002. In the Sea
Going Staff Appraisal Report11 on Jose Jr.s work performance
for the period of 1 August to 28 November 2002, Jose, Jr.
received a 96% total rating and was described as very
hardworking, trustworthy, and reliable.

39.00

On 29 December 2002, M/T Limar reached the next port after

the random drug test and Jose, Jr. was repatriated to the
Philippines. When Jose, Jr. arrived in the Philippines, he asked
MPI that a drug test be conducted on him. MPI ignored his
request. On his own, Jose, Jr. procured drug tests from Manila
Doctors Hospital,12 S.M. Lazo Medical Clinic, Inc.,13 and Maritime
Clinic for International Services, Inc.14 He was found negative for
marijuana.

Hours of Work

48 HOURS/WEEK

Overtime

US$ 386.00 FIXED OT. 105 HRS/

MOS.

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

US$ 190.00 & US$ 150 OWNERS

BONUS

The Labor Arbiters Ruling

Vacation
with Pay

Leave

EVIDENCE

AGUSTIN, E.P. | 127

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

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

unexpired portion of the employment contract. The NLRC

held that:

Based from the facts and evidence, this office inclined

[sic] to rule in favor of the respondents: we find that
complainants termination from employment was valid
and lawful. It is established that complainant, after an
unannounced drug test conducted by the respondent
principal on the officers and crew on board the vessel,
was found positive of marijuana, a prohibited drug. It is
a universally known fact the menace that drugs bring on
the user as well as to others who may have got on his
way. It is noted too that complainant worked on board a
tanker vessel which carries toxic materials such as fuels,
gasoline and other combustible materials which require
delicate and careful handling and being an oiler,
complainant is expected to be in a proper disposition.
Thus, we agree with respondents that immediate
repatriation of complainant is warranted for the safety of
the vessel as well as to complainants co-workers on
board. It is therefore a risk that should be avoided at all
cost. Moreover, under the POEA Standard Employment
Contract as cited by the respondents (supra), violation of
the drug and alcohol policy of the company carries with
it the penalty of dismissal to be effected by the master of
the vessel. It is also noted that complainant was made
aware of the results of the drug test as per Drug Test
Certificate dated October 29, 2002. He was not
dismissed right there and then but it was only on
December 29, 2002 that he was repatriated for cause.

Here, a copy of the purported drug test result for

Complainant indicates, among others, the following
typewritten words "Hoofd: Drs. R.R.L. Petronia
Apotheker" and "THC-COOH POS."; the handwritten
word "Marihuana"; and the stamped words "Dr. A.R.A.
Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002."
However, said test result does not contain any signature,
much less the signature of any of the doctors whose
names were printed therein (Page 45, Records). Verily,
the veracity of this purported drug test result is
questionable, hence, it cannot be deemed as substantial
proof that Complainant violated his employers "no
alcohol, no drug" policy. In fact, in his November 14,
2002 message to Stelmar Tanker Group, the Master of
the vessel where Complainant worked, suggested that
another drug test for complainant should be taken when
the vessel arrived [sic] in Curacao next call for final
findings (Page 33, Records), which is an indication that
the Master, himself, was in doubt with the purported
drug test result. Indeed there is reason for the Master of
the vessel to doubt that Complainant was taking in the
prohibited drug "marihuana." The Sea Going Staff
Appraisal Report signed by Appraiser David A. Amaro, Jr.
and reviewed by the Master of the vessel himself on
complainants work performance as Wiper from August
1, 2002 to November 28, 2002 which included a twomonth period after the purported drug test, indicates
that out of a total score of 100% on Safety
Consciousness (30%), Ability (30%), Reliability (20%)
and Behavior & Attitude (20%), Complainant was
assessed a score of 96% (Pages 30-31, Records). Truly,
a worker who had been taking in prohibited drug could
not have given such an excellent job performance.
Significantly, under the category "Behavior & Attitude
(20%)," referring to his personal relationship and his
interactions with the rest of the ships staff and his
attitude towards his job and how the rest of the crew
regard him, Complainant was assessed the full score of
20% (Page 31, Records), which belies Respondents
insinuation that his alleged offense directly affected the
safety of the vessel, its officers and crew members.
Indeed, if Complainant had been a threat to the safety of
the vessel, officers and crew members, he would not be
been [sic] allowed to continue working almost three (3)
months after his alleged offense until his repatriation on
December 29, 2002. Clearly, Respondents failed to
present substantial proof that Complainants dismissal
was with just or authorized cause.

As to the complainants contention that the ship doctors report

can not be relied upon in the absence of other evidence
supporting the doctors findings for the simple reason that the
ship doctor is under the control of the principal employer, the
same is untenable. On the contrary, the findings of the doctor on
board should be given credence as he would not make a false
clarification. Dr. A.R.A Heath could not be said to have
outrageously contrived the results of the complainants drug
test. We are therefore more inclined to believe the original
results of the unannounced drug test as it was officially
conducted on board the vessel rather than the subsequent
testing procured by complainant on his own initiative. The result
of the original drug test is evidence in itself and does not require
additional supporting evidence except if it was shown that the
drug test was conducted not in accordance with the drug testing
procedure which is not obtaining in this particular case. [H]ence,
the first test prevails.
We can not also say that respondents were motivated by ill will
against the complainant considering that he was appraised to be
a good worker. For this reason that respondents would not
terminate [sic] the services of complainant were it not for the
fact that he violated the drug and alcohol policy of the company.
[T]hus, we find that just cause exist [sic] to justify the
termination of complainant.15
Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to
the NLRC. Jose, Jr. claimed that the Labor Arbiter committed
grave abuse of discretion in ruling that he was dismissed for just
cause.
The NLRCs Ruling
In its 19 January 2004 Resolution, the NLRC set aside
the Labor Arbiters 18 June 2003 Decision. The NLRC
held that Jose, Jr.s dismissal was illegal and ordered
MPI and MSSI to pay Jose, Jr. his salaries for the

EVIDENCE

Moreover, Respondents failed to accord Complainant due

process prior to his dismissal. There is no showing that
Complainants employer furnished him with a written notice
apprising him of the particular act or omission for which his
dismissal was sought and a subsequent written notice informing
him of the decision to dismiss him, much less any proof that
Complainant was given an opportunity to answer and rebut the
charges against him prior to his dismissal. Worse, Respondents
invoke the provision in the employment contract which allows
summary dismissal for cases provided therein. Consequently,
Respondents argue that there was no need for him to be notified
of his dismissal. Such blatant violation of basic labor law
principles cannot be permitted by this Office. Although a contract
is law between the parties, the provisions of positive law which
regulate such contracts are deemed included and shall limit and
govern the relations between the parties (Asia World
Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24, 1999).

AGUSTIN, E.P. | 128

Relative thereto, it is worth noting Section 10 of Republic Act No.

8042, which provides that "In cases of termination of overseas
employment without just, valid or authorized cause as defined
by law or contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest of twelve
percent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or for three (3) months for
every year of the unexpired term, whichever is less."16
MPI and MSSI filed a motion for reconsideration. In its
22 March 2004 Resolution, the NLRC denied the motion
for lack of merit. MPI and MSSI filed with the Court of
Appeals a petition17 for certiorari under Rule 65 of the
Rules of Court. MPI and MSSI claimed that the NLRC
gravely abused its discretion when it (1) reversed the
Labor Arbiters factual finding that Jose, Jr. was legally
dismissed; (2) awarded Jose, Jr. his salaries for the
unexpired portion of the employment contract; (3)
awarded Jose, Jr. $386 overtime pay; and (4) ruled that
Jose, Jr. perfected his appeal within the reglementary
period.
The Court of Appeals Ruling
In its 11 May 2005 Decision, the Court of Appeals set aside the
19 January and 22 March 2004 Resolutions of the NLRC and
reinstated the 18 June 2003 Decision of the Labor Arbiter. The
Court of Appeals held that:
The POEA standard employment contract adverted to in the
labor arbiters decision to which all seamens contracts must
adhere explicitly provides that the failure of a seaman to obey
the policy warrants a penalty of dismissal which may be carried
out by the master even without a notice of dismissal if there is a
clear and existing danger to the safety of the vessel or the crew.
That the petitioners were implementing a no-alcohol, no drug
policy that was communicated to the respondent when he
embarked is not in question. He had signed a document entitled
Drug and Alcohol Declaration in which he acknowledged that
alcohol beverages and unprescribed drugs such as marijuana
were banned on the vessel and that any employee found
possessing or using these substances would be subject to instant
dismissal. He undertook to comply with the policy and abide by
all the relevant rules and guidelines, including the system of
random testing that would be employed to enforce it.
We can hardly belabor the reasons and justification for this
policy. The safety of the vessel on the high seas is a matter of
supreme and unavoidable concern to all the owners, the crew
and the riding public. In the ultimate analysis, a vessel is only as
seaworthy as the men who sail it, so that it is necessary to
maintain at every moment the efficiency and competence of the
crew. Without an effective no alcohol, no drug policy on board
the ship, the vessels safety will be seriously compromised. The
policy is, therefore, a reasonable and lawful order or regulation
that, once made known to the employee, must be observed by
him, and the failure or refusal of a seaman to comply with it
should constitute serious misconduct or willful disobedience that
is a just cause for the termination of employment under the
Labor Code (Aparente vs. National Labor Relations Commission,
331 SCRA 82). As the labor arbiter has discerned, the
seriousness and earnestness in the enforcement of the ban is
highlighted by the provision of the POEA Standard Employment
Contract allowing the ship master to forego the notice of
dismissal requirement in effecting the repatriation of the seaman
violating it.
xxxx

EVIDENCE

Under legal rules of evidence, not all unsigned documents or

papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from
him because of necessity and under circumstances that
safeguard the trustworthiness of the paper. A number of
evidence of this sort are called entries in the course of business,
which are transactions made by persons in the regular course of
their duty or business. We agree with the labor arbiter that the
drug test result constitutes entries made in the ordinary or
regular course of duty of a responsible officer of the vessel. The
tests administered to the crew were routine measures of the
vessel conducted to enforce its stated policy, and it was a matter
of course for medical reports to be issued and released by the
medical officer. The ships physician at Curacao under whom the
tests were conducted was admittedly Dr. Heath. It was under his
name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these
results were issued other than in the ordinary course of his duty.
As the labor arbiter points out, the drug test report is evidence
in itself and does not require additional supporting evidence
except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he
says, has even been suggested in this particular case.
The regularity of the procedure observed in the administration
and reporting of the tests is the very assurance of the reports
admissibility and credibility under the laws of the evidence. We
see no reason why it cannot be considered substantial evidence,
which, parenthetically, is the lowest rung in the ladder of
evidence. It is from the fact that a report or entry is a part of the
regular routine work of a business or profession that it derives
its value as legal evidence.
Then the respondent was notified of the results and allowed to
explain himself. He could not show any history of medication
that could account for the traces of drugs in his system. Despite
his lack of plausible excuses, the ship captain came out in
support of him and asked his superiors to give him another
chance. These developments prove that the respondent was
afforded due process consistent with the exigencies of his
service at sea. For the NLRC to annul the process because he
was somehow not furnished with written notice is already being
pedantic. What is the importance to the respondent of the
difference between a written and verbal notice when he was
actually given the opportunity to be heard? x x x
The working environment in a seagoing vessel is sui generis
which amply justifies the difference in treatment of seamen
found guilty of serious infractions at sea. The POEA Standard
Employment Contract allows the ship master to implement a
repatriation for just cause without a notice of dismissal if this is
necessary to avoid a clear and existing danger to the vessel. The
petitioners have explained that that [sic] it is usually at the next
port of call where the offending crewman is made to disembark.
In this case, a month had passed by after the date of the
medical report before they reached the next port. We may not
second-guess the judgment of the master in allowing him to
remain at his post in the meantime. It is still reasonable to
believe that the proper safeguards were taken and proper
limitations observed during the period when the respondent
remained on board.
Finally, the fact that the respondent obtained negative results in
subsequent drug tests in the Philippines does not negate the
findings made of his condition on board the vessel. A drug test
can be negative if the user undergoes a sufficient period of
abstinence before taking the test. Unlike the tests made at his
instance, the drug test on the vessel was unannounced. The

AGUSTIN, E.P. | 129

credibility of the first test is, therefore, greater than the

subsequent ones.18

to answer and rebut the charges against him prior to the

dismissal.22

Jose, Jr. filed a motion19 for reconsideration. In its 5 August

2005 Resolution, the Court of Appeals denied the motion for lack
of merit. Hence, the present petition.

The Courts Ruling

In a motion20 dated 1 August 2007, MPI and MSSI prayed that

they be substituted by OSG Ship Management Manila, Inc. as
respondent in the present case. In a Resolution21 dated 14
November 2007, the Court noted the motion.
The Issues
In his petition dated 13 September 2005, Jose, Jr. claims that he
was illegally dismissed from employment for two reasons: (1)
there is no just cause for his dismissal because the drug test
result is unsigned by the doctor, and (2) he was not afforded
due process. He stated that:
2. The purported drug test result conducted to petitioner
indicates, among others, the following: [sic] typwritten words
Hool: Drs. R.R.L.. [sic] Petronia Apotheker" [sic] and :THCCOOH POS." [sic]; the handwritten word "Marihuana"; and the
stamped words "Dr. A.R.A Heath, MD", "SHIPS DOCTOR" and
"29 OKT. 2002." However, said test result does not contain any
signature, much less the signature of any of the doctors whose
name [sic] were printed therein. This omission is fatal as it goes
to the veracity of the said purported drug test result.
Consequently, the purported drug test result cannot be deemed
as substantial proof that petitioner violated his employers "no
alcohol, no drug policy [sic].
xxxx
Even assuming arguendo that there was just cause,
respondents miserably failed to show that the presence
of the petitioner in the vessel constitutes a clear and
existing danger to the safety of the crew or the vessel. x
xx
xxxx
It is a basic principle in Labor Law that in termination disputes,
the burden is on the employer to show that the dismissal was for
a just and valid cause. x x x
xxxx
x x x [T]he Honorable Labor Arbiter as well as the Honorable
Court of Appeals clearly erred in ruling that there was just cause
for the termination of petitioners employment. Petitioners
employment was terminated on the basis only of a mere
allegation that is unsubstantiated, unfounded and on the basis of
the drug test report that was not even signed by the doctor who
purportedly conducted such test.
5. Moreover, respondents failed to observe due process in
terminating petitioners employment. There is no evidence on
record that petitioner was furnished by his employer with a
written notice apprising him of the particular act or omission
which is the basis for his dismissal. Furthermore, there is also no
evidence on record that the second notice, informing petitioner
of the decision to dismiss, was served to the petitioner. There is
also no proof on record that petitioner was given an opportunity

EVIDENCE

In its 11 May 2005 Decision, the Court of Appeals held that there
was just cause for Jose, Jr.s dismissal. The Court of Appeals
gave credence to the drug test result showing that Jose, Jr. was
positive for marijuana. The Court of Appeals considered the drug
test result as part of entries in the course of business. The Court
of Appeals held that:
Under legal rules of evidence, not all unsigned documents or
papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from
him because of necessity and under circumstances that
safeguard the trustworthiness of the paper. A number of
evidence of this sort are called entries in the course of business,
which are transactions made by persons in the regular course of
their duty or business. We agree with the labor arbiter that the
drug test result constitutes entries made in the ordinary or
regular course of duty of a responsible officer of the vessel. The
tests administered to the crew were routine measures of the
vessel conducted to enforce its stated policy, and it was a matter
of course for medical reports to be issued and released by the
medical officer. The ships physician at Curacao under whom the
tests were conducted was admittedly Dr. Heath. It was under his
name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these
results were issued other than in the ordinary course of his duty.
As the labor arbiter points out, the drug test report is evidence
in itself and does not require additional supporting evidence
except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he
says, has even been suggested in this particular case.23
(Emphasis supplied)
Jose, Jr. claims that the Court of Appeals erred when it ruled
that there was just cause for his dismissal. The Court is not
impressed. In a petition for review on certiorari under Rule 45 of
the Rules of Court, a mere statement that the Court of Appeals
erred is insufficient. The petition must state the law or
jurisprudence and the particular ruling of the appellate court
violative of such law or jurisprudence. In Encarnacion v. Court of
Appeals,24 the Court held that:
Petitioner asserts that there is a question of law involved in this
appeal. We do not think so. The appeal involves an appreciation
of facts, i.e., whether the questioned decision is supported by
the evidence and the records of the case. In other words, did
the Court of Appeals commit a reversible error in considering the
trouble record of the subject telephone? Or is this within the
province of the appellate court to consider? Absent grave abuse
of discretion, this Court will not reverse the appellate courts
findings of fact.
In a petition for review under Rule 45, Rules of Court, invoking
the usual reason, i.e., that the Court of Appeals has decided a
question of substance not in accord with law or with applicable
decisions of the Supreme Court, a mere statement of the
ceremonial phrase is not sufficient to confer merit on the
petition. The petition must specify the law or prevailing
jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid
down by the Supreme Court. (Emphasis supplied)

AGUSTIN, E.P. | 130

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

marijuana; (5) the drug test result was issued under Dr. Heaths
name and contained his handwritten comments. The Court of
Appeals found that:

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

near the time of the transactions to which they refer, by a
person deceased, or unable to testify, who was in a position to
know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.1avvphi1

The tests administered to the crew were routine measures of the

vessel conducted to enforce its stated policy, and it was a matter
of course for medical reports to be issued and released by the
medical officer. The ships physician at Curacao under whom the
tests were conducted was admittedly Dr. Heath. It was under his
name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these
results were issued other than in the ordinary course of his duty.
As the labor arbiter points out, the drug test report is evidence
in itself and does not require additional supporting evidence
except if it appears that the drug test was conducted not in
accordance with drug testing procedures. Nothing of the sort, he
says, has even been suggested in this particular case.27

In Canque v. Court of Appeals,25 the Court laid down the

requisites for admission in evidence of entries in the course of
business: (1) the person who made the entry is dead, outside
the country, or unable to testify; (2) the entries were made at or
near the time of the transactions to which they refer; (3) the
person who made the entry was in a position to know the facts
stated in the entries; (4) the entries were made in a professional
capacity or in the performance of a duty; and (5) the entries
were made in the ordinary or regular course of business or duty.
Here, all the requisites are present: (1) Dr. Heath is outside the
country; (2) the entries were made near the time the random
drug test was conducted; (3) Dr. Heath was in a position to
know the facts made in the entries; (4) Dr. Heath made the
entries in his professional capacity and in the performance of his
duty; and (5) the entries were made in the ordinary or regular
course of business or duty.
The fact that the drug test result is unsigned does not
necessarily lead to the conclusion that Jose, Jr. was not found
positive for marijuana. In KAR ASIA, Inc. v. Corona,26 the Court
admitted in evidence unsigned payrolls. In that case, the Court
held that:
Entries in the payroll, being entries in the course of business,
enjoy the presumption of regularity under Rule 130, Section 43
of the Rules of Court. It is therefore incumbent upon the
respondents to adduce clear and convincing evidence in support
of their claim. Unfortunately, respondents naked assertions
without proof in corroboration will not suffice to overcome the
disputable presumption.
In disputing the probative value of the payrolls for December
1994, the appellate court observed that the same contain only
the signatures of Ermina Daray and Celestino Barreto, the
paymaster and the president, respectively. It further opined that
the payrolls presented were only copies of the approved
payment, and not copies disclosing actual payment.
The December 1994 payrolls contain a computation of the
amounts payable to the employees for the given period,
including a breakdown of the allowances and deductions on the
amount due, but the signatures of the respondents are
conspicuously missing. Ideally, the signatures of the respondents
should appear in the payroll as evidence of actual payment.
However, the absence of such signatures does not necessarily
lead to the conclusion that the December 1994 COLA was not
received. (Emphasis supplied)
In the present case, the following facts are established (1)
random drug tests are regularly conducted on all officers and
crew members of M/T Limar; (2) a random drug test was
conducted at the port of Curacao on 8 October 2002; (3) Dr.
Heath was the authorized physician of M/T Limar; (4) the drug
test result of Jose, Jr. showed that he was positive for

EVIDENCE

Factual findings of the Court of Appeals are binding on the

Court. Absent grave abuse of discretion, the Court will not
disturb the Court of Appeals factual findings.28 In Encarnacion,29
the Court held that, "unless there is a clearly grave or whimsical
abuse on its part, findings of fact of the appellate court will not
be disturbed. The Supreme Court will only exercise its power of
review in known exceptions such as gross misappreciation of
evidence or a total void of evidence." Jose, Jr. failed to show
that the Court of Appeals gravely abused its discretion.
Article 282(a) of the Labor Code states that the employer may
terminate an employment for serious misconduct. Drug use in
the premises of the employer constitutes serious misconduct. In
Bughaw, Jr. v. Treasure Island Industrial Corporation,30 the
Court held that:
The charge of drug use inside the companys premises and
during working hours against petitioner constitutes serious
misconduct, which is one of the just causes for termination.
Misconduct is improper or wrong conduct. It is the transgression
of some established and definite rule of action, a forbidden act,
a dereliction of duty, willful in character, and implies wrongful
intent and not merely an error in judgment. The misconduct to
be serious within the meaning of the Act must be of such a
grave and aggravated character and not merely trivial or
unimportant. Such misconduct, however serious, must
nevertheless, in connection with the work of the employee,
constitute just cause for his separation. This Court took judicial
notice of scientific findings that drug abuse can damage the
mental faculties of the user. It is beyond question therefore that
any employee under the influence of drugs cannot possibly
continue doing his duties without posing a serious threat to the
lives and property of his co-workers and even his employer.
(Emphasis supplied)
Jose, Jr. claims that he was not afforded due process. The Court
agrees. There are two requisites for a valid dismissal: (1) there
must be just cause, and (2) the employee must be afforded due
process.31 To meet the requirements of due process, the
employer must furnish the employee with two written notices
a notice apprising the employee of the particular act or omission
for which the dismissal is sought and another notice informing
the employee of the employers decision to dismiss. In Talidano
v. Falcon Maritime & Allied Services, Inc.,32 the Court held that:
[R]espondent failed to comply with the procedural due process
required for terminating the employment of the employee. Such
requirement is not a mere formality that may be dispensed with
at will. Its disregard is a matter of serious concern since it
constitutes a safeguard of the highest order in response to

AGUSTIN, E.P. | 131

mans innate sense of justice. The Labor Code does not, of

course, require a formal or trial type proceeding before an erring
employee may be dismissed. This is especially true in the case of
a vessel on the ocean or in a foreign port. The minimum
requirement of due process termination proceedings, which must
be complied with even with respect to seamen on board a
vessel, consists of notice to the employees intended to be
dismissed and the grant to them of an opportunity to present
their own side of the alleged offense or misconduct, which led to
the managements decision to terminate. To meet the
requirements of due process, the employer must furnish the
worker sought to be dismissed with two written notices before
termination of employment can be legally effected, i.e., (1) a
notice which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the
subsequent notice after due hearing which informs the employee
of the employers decision to dismiss him. (Emphasis supplied)
In the present case, Jose, Jr. was not given any written notice
about his dismissal. However, the propriety of Jose, Jr.s
dismissal is not affected by the lack of written notices. When the
dismissal is for just cause, the lack of due process does not
render the dismissal ineffectual but merely gives rise to the
payment of P30,000 in nominal damages.33
WHEREFORE, the petition is DENIED. The 11 May 2005 Decision
and 5 August 2005 Resolution of the Court of Appeals in CA-G.R.
SP No. 83272 are AFFIRMED with the MODIFICATION that OSG
Ship Management Manila, Inc. is ordered to pay Bernardo B.
Jose, Jr. P30,000 in nominal damages.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 132

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G. R. No. 157064

August 7, 2006

BARCELON, ROXAS SECURITIES, INC. (now known as

UBP Securities, Inc.) Petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, seeking to set aside the Decision of the Court of
Appeals in CA-G.R. SP No. 60209 dated 11 July 2002, 1 ordering
the petitioner to pay the Government the amount of
P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum. The Court of
Appeals, in its assailed Decision, reversed the Decision of the
Court of Tax Appeals (CTA) dated 17 May 2000 2 in C.T.A. Case
No. 5662.
Petitioner Barcelon, Roxas Securities Inc. (now known as UBP
Securities, Inc.) is a corporation engaged in the trading of
securities. On 14 April 1988, petitioner filed its Annual Income
Tax Return for taxable year 1987. After an audit investigation
conducted by the Bureau of Internal Revenue (BIR), respondent
Commissioner of Internal Revenue (CIR) issued an assessment
for deficiency income tax in the amount of P826,698.31 arising
from the disallowance of the item on salaries, bonuses and
allowances in the amount of P1,219,093,93 as part of the
deductible business expense since petitioner failed to subject the
salaries, bonuses and allowances to withholding taxes. This
assessment was covered by Formal Assessment Notice No. FAN1-87-91-000649 dated 1 February 1991, which, respondent
alleges, was sent to petitioner through registered mail on 6
February 1991. However, petitioner denies receiving the formal
assessment notice. 3
On 17 March 1992, petitioner was served with a Warrant of
Distraint and/or Levy to enforce collection of the deficiency
income tax for the year 1987. Petitioner filed a formal protest,
dated 25 March 1992, against the Warrant of Distraint and/or
Levy, requesting for its cancellation. On 3 July 1998, petitioner
received a letter dated 30 April 1998 from the respondent
denying the protest with finality. 4
On 31 July 1998, petitioner filed a petition for review with the
CTA. After due notice and hearing, the CTA rendered a decision
in favor of petitioner on 17 May 2000. The CTA ruled on the
primary issue of prescription and found it unnecessary to decide
the issues on the validity and propriety of the assessment. It
maintained that while a mailed letter is deemed received by the
addressee in the course of mail, this is merely a disputable
presumption. It reasoned that the direct denial of the petitioner
shifts the burden of proof to the respondent that the mailed
letter was actually received by the petitioner. The CTA found the
BIR records submitted by the respondent immaterial, selfserving, and therefore insufficient to prove that the assessment
notice was mailed and duly received by the petitioner. 5 The
dispositive portion of this decision reads:

EVIDENCE

WHEREFORE, in view of the foregoing, the 1988 deficiency tax

assessment against petitioner is hereby CANCELLED.
Respondent is hereby ORDERED TO DESIST from collecting said
deficiency tax. No pronouncement as to costs. 6
On 6 June 2000, respondent moved for reconsideration of the
aforesaid decision but was denied by the CTA in a Resolution
dated 25 July 2000. Thereafter, respondent appealed to the
Court of Appeals on 31 August 2001. In reversing the CTA
decision, the Court of Appeals found the evidence presented by
the respondent to be sufficient proof that the tax assessment
notice was mailed to the petitioner, therefore the legal
presumption that it was received should apply. 7 Thus, the Court
of Appeals ruled that:
WHEREFORE, the petition is hereby GRANTED. The decision
dated May 17, 2000 as well as the Resolution dated July 25,
2000 are hereby REVERSED and SET ASIDE, and a new on
entered ordering the respondent to pay the amount of
P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum from February 6,
1991 until fully paid pursuant to Sections 248 and 249 of the Tax
Code. 8
Petitioner moved for reconsideration of the said decision but the
same was denied by the Court of Appeals in its assailed
Resolution dated 30 January 2003. 9
Hence, this Petition for Review on Certiorari raising the following
issues:
I
WHETHER OR NOT LEGAL BASES EXIST FOR THE COURT OF
APPEALS FINDING THAT THE COURT OF TAX APPEALS
COMMITTED "GROSS ERROR IN THE APPRECIATION OF
FACTS."
II
WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN
REVERSING THE SUBJECT DECISION OF THE COURT OF TAX
APPEALS.
III
WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL
REVENUE TO ASSESS PETITIONER FOR ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.
IV
WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL
REVENUE TO COLLECT THE SUBJECT ALLEGED DEFICIENCY
INCOME TAX FOR 1987 HAS PRESCRIBED.
V
WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED
DEFICIENCY INCOME TAX ASSESSMENT FOR 1987.
VI

AGUSTIN, E.P. | 133

WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE

OF THE RIGHT OF PETITIONER TO DUE PROCESS. 10
This Court finds the instant Petition meritorious.
The core issue in this case is whether or not respondents right
to assess petitioners alleged deficiency income tax is barred by
prescription, the resolution of which depends on reviewing the
findings of fact of the Court of Appeals and the CTA.
While the general rule is that factual findings of the Court of
Appeals are binding on this Court, there are, however,
recognized exceptions 11 thereto, such as when the findings are
contrary to those of the trial court or, in this case, the CTA. 12
In its Decision, the CTA resolved the issues raised by the parties
thus:
Jurisprudence is replete with cases holding that if the taxpayer
denies ever having received an assessment from the BIR, it is
incumbent upon the latter to prove by competent evidence that
such notice was indeed received by the addressee. The onus
probandi was shifted to respondent to prove by contrary
evidence that the Petitioner received the assessment in the due
course of mail. The Supreme Court has consistently held that
while a mailed letter is deemed received by the addressee in the
course of mail, this is merely a disputable presumption subject to
controversion and a direct denial thereof shifts the burden to the
party favored by the presumption to prove that the mailed letter
was indeed received by the addressee (Republic vs. Court of
Appeals, 149 SCRA 351). Thus as held by the Supreme Court in
Gonzalo P. Nava vs. Commissioner of Internal Revenue, 13 SCRA
104, January 30, 1965:
"The facts to be proved to raise this presumption are (a) that the
letter was properly addressed with postage prepaid, and (b) that
it was mailed. Once these facts are proved, the presumption is
that the letter was received by the addressee as soon as it could
have been transmitted to him in the ordinary course of the mail.
But if one of the said facts fails to appear, the presumption does
not lie. (VI, Moran, Comments on the Rules of Court, 1963 ed,
56-57 citing Enriquez vs. Sunlife Assurance of Canada, 41 Phil
269)."
In the instant case, Respondent utterly failed to discharge this
duty. No substantial evidence was ever presented to prove that
the assessment notice No. FAN-1-87-91-000649 or other
supposed notices subsequent thereto were in fact issued or sent
to the taxpayer. As a matter of fact, it only submitted the BIR
record book which allegedly contains the list of taxpayers
names, the reference number, the year, the nature of tax, the
city/municipality and the amount (see Exh. 5-a for the
Respondent). Purportedly, Respondent intended to show to this
Court that all assessments made are entered into a record book
in chronological order outlining the details of the assessment and
the taxpayer liable thereon. However, as can be gleaned from
the face of the exhibit, all entries thereon appears to be
immaterial and impertinent in proving that the assessment
notice was mailed and duly received by Petitioner. Nothing
indicates therein all essential facts that could sustain the burden
of proof being shifted to the Respondent. What is essential to
prove the fact of mailing is the registry receipt issued by the
Bureau of Posts or the Registry return card which would have
been signed by the Petitioner or its authorized representative.
And if said documents cannot be located, Respondent at the
very least, should have submitted to the Court a certification
issued by the Bureau of Posts and any other pertinent document

EVIDENCE

which is executed with the intervention of the Bureau of Posts.

This Court does not put much credence to the self serving
documentations made by the BIR personnel especially if they are
unsupported by substantial evidence establishing the fact of
mailing. Thus:
"While we have held that an assessment is made when sent
within the prescribed period, even if received by the taxpayer
after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L12259, May 27, 1959), this ruling makes it the more imperative
that the release, mailing or sending of the notice be clearly and
satisfactorily proved. Mere notations made without the
taxpayers intervention, notice or control, without adequate
supporting evidence cannot suffice; otherwise, the taxpayer
would be at the mercy of the revenue offices, without adequate
protection or defense." (Nava vs. CIR, 13 SCRA 104, January 30,
1965).
xxxx
The failure of the respondent to prove receipt of the assessment
by the Petitioner leads to the conclusion that no assessment was
issued. Consequently, the governments right to issue an
assessment for the said period has already prescribed.
(Industrial Textile Manufacturing Co. of the Phils., Inc. vs. CIR
CTA Case 4885, August 22, 1996). 13
Jurisprudence has consistently shown that this Court accords the
findings of fact by the CTA with the highest respect. In Sea-Land
Service Inc. v. Court of Appeals 14 this Court recognizes that the
Court of Tax Appeals, which by the very nature of its function is
dedicated exclusively to the consideration of tax problems, has
necessarily developed an expertise on the subject, and its
conclusions will not be overturned unless there has been an
abuse or improvident exercise of authority. Such findings can
only be disturbed on appeal if they are not supported by
substantial evidence or there is a showing of gross error or
abuse on the part of the Tax Court. 15 In the absence of any
clear and convincing proof to the contrary, this Court must
presume that the CTA rendered a decision which is valid in every
respect.
Under Section 203 16 of the National Internal Revenue Code
(NIRC), respondent had three (3) years from the last day for the
filing of the return to send an assessment notice to petitioner. In
the case of Collector of Internal Revenue v. Bautista, 17 this
Court held that an assessment is made within the prescriptive
period if notice to this effect is released, mailed or sent by the
CIR to the taxpayer within said period. Receipt thereof by the
taxpayer within the prescriptive period is not necessary. At this
point, it should be clarified that the rule does not dispense with
the requirement that the taxpayer should actually receive, even
beyond the prescriptive period, the assessment notice which was
timely released, mailed and sent.
In the present case, records show that petitioner filed its Annual
Income Tax Return for taxable year 1987 on 14 April 1988. 18
The last day for filing by petitioner of its return was on 15 April
1988, 19 thus, giving respondent until 15 April 1991 within which
to send an assessment notice. While respondent avers that it
sent the assessment notice dated 1 February 1991 on 6
February 1991, within the three (3)-year period prescribed by
law, petitioner denies having received an assessment notice
from respondent. Petitioner alleges that it came to know of the
deficiency tax assessment only on 17 March 1992 when it was
served with the Warrant of Distraint and Levy. 20

AGUSTIN, E.P. | 134

In Protectors Services, Inc. v. Court of Appeals, 21 this Court

ruled that when a mail matter is sent by registered mail, there
exists a presumption, set forth under Section 3(v), Rule 131 of
the Rules of Court, 22 that it was received in the regular course
of mail. The facts to be proved in order to raise this presumption
are: (a) that the letter was properly addressed with postage
prepaid; and (b) that it was mailed. While a mailed letter is
deemed received by the addressee in the ordinary course of
mail, this is still merely a disputable presumption subject to
controversion, and a direct denial of the receipt thereof shifts
the burden upon the party favored by the presumption to prove
that the mailed letter was indeed received by the addressee. 23
In the present case, petitioner denies receiving the assessment
notice, and the respondent was unable to present substantial
evidence that such notice was, indeed, mailed or sent by the
respondent before the BIRs right to assess had prescribed and
that said notice was received by the petitioner. The respondent
presented the BIR record book where the name of the taxpayer,
the kind of tax assessed, the registry receipt number and the
date of mailing were noted. The BIR records custodian, Ingrid
Versola, also testified that she made the entries therein.
Respondent offered the entry in the BIR record book and the
testimony of its record custodian as entries in official records in
accordance with Section 44, Rule 130 of the Rules of Court, 24
which states that:
Section 44. Entries in official records. - Entries in official records
made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein
stated.
The foregoing rule on evidence, however, must be read in
accordance with this Courts pronouncement in Africa v. Caltex
(Phil.), Inc., 25 where it has been held that an entrant must have
personal knowledge of the facts stated by him or such facts
were acquired by him from reports made by persons under a
legal duty to submit the same.

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

Court stressed on the importance of proving the release, mailing
or sending of the notice.
While we have held that an assessment is made when sent
within the prescribed period, even if received by the taxpayer
after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L12259, May 27, 1959), this ruling makes it the more imperative
that the release, mailing, or sending of the notice be clearly and
satisfactorily proved. Mere notations made without the
taxpayers intervention, notice, or control, without adequate
supporting evidence, cannot suffice; otherwise, the taxpayer
would be at the mercy of the revenue offices, without adequate
protection or defense.
In the present case, the evidence offered by the respondent fails
to convince this Court that Formal Assessment Notice No. FAN-187-91-000649 was released, mailed, or sent before 15 April
1991, or before the lapse of the period of limitation upon
assessment and collection prescribed by Section 203 of the
NIRC. Such evidence, therefore, is insufficient to give rise to the
presumption that the assessment notice was received in the
regular course of mail. Consequently, the right of the
government to assess and collect the alleged deficiency tax is
barred by prescription.
IN VIEW OF THE FOREGOING, the instant Petition is GRANTED.
The assailed Decision of the Court of Appeals in CA-G.R. SP No.
60209 dated 11 July 2002, is hereby REVERSED and SET ASIDE,
and the Decision of the Court of Tax Appeals in C.T.A. Case No.
5662, dated 17 May 2000, cancelling the 1988 Deficiency Tax
Assessment against Barcelon, Roxas Securitites, Inc. (now
known as UPB Securities, Inc.) for being barred by prescription,
is hereby REINSTATED. No costs.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

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

EVIDENCE

AGUSTIN, E.P. | 135

RULE 130: Rules of Admissibility

(a) Sec. 48 - Sec. 51: Opinion Rule;
Character Evidence
(b) Sec. 30: Rules on Examination of Child Witness

guilty beyond reasonable doubt of parricide. The decretal portion

of the Decision reads:
"WHEREFORE, after all the foregoing being duly
considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable doubt of
the crime of Parricide as provided under Article 246 of
the Revised Penal Code as restored by Sec. 5, RA No.
7659, and after finding treachery as a generic
aggravating circumstance and none of mitigating
circumstance, hereby sentences the accused with the
penalty of DEATH.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 135981

"The Court likewise penalizes the accused to pay the

heirs of the deceased the sum of fifty thousand pesos
(P50,000.00), Philippine currency as indemnity and
another sum of fifty thousand pesos (P50,000.00),
Philippine currency as moral damages."2

January 15, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

The Information3 charged appellant with parricide as follows:

DECISION

"That on or about the 15th day of November 1995, at

Barangay Bilwang, Municipality of Isabel, Province of
Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with
intent to kill, with treachery and evident
premeditation, did then and there wilfully, unlawfully
and feloniously attack, assault, hit and wound one
BEN GENOSA, her legitimate husband, with the use of
a hard deadly weapon, which the accused had
provided herself for the purpose, [causing] the
following wounds, to wit:

PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer
for acquittal on a novel theory -- the "battered woman
syndrome" (BWS), which allegedly constitutes self-defense.
Under the proven facts, however, she is not entitled to complete
exoneration because there was no unlawful aggression -- no
immediate and unexpected attack on her by her battererhusband at the time she shot him.

'Cadaveric spasm.

Absent unlawful aggression, there can be no self-defense,

complete or incomplete.

'Body on the 2nd stage of decomposition.

But all is not lost. The severe beatings repeatedly inflicted on
appellant constituted a form of cumulative provocation that
broke down her psychological resistance and self-control. This
"psychological paralysis" she suffered diminished her will power,
thereby entitling her to the mitigating factor under paragraphs 9
and 10 of Article 13 of the Revised Penal Code.

'Face, black, blownup & swollen w/ evident

post-mortem lividity. Eyes protruding from
its sockets and tongue slightly protrudes
out of the mouth.
'Fracture, open, depressed, circular located
at the occipital bone of the head, resulting
[in] laceration of the brain, spontaneous
rupture of the blood vessels on the
posterior surface of the brain, laceration of
the dura and meningeal vessels producing
severe intracranial hemorrhage.

In addition, appellant should also be credited with the

extenuating circumstance of having acted upon an impulse so
powerful as to have naturally produced passion and obfuscation.
The acute battering she suffered that fatal night in the hands of
her batterer-spouse, in spite of the fact that she was eight
months pregnant with their child, overwhelmed her and put her
in the aforesaid emotional and mental state, which overcame her
reason and impelled her to vindicate her life and her unborn
child's.

'Blisters at both extrem[i]ties, anterior

chest, posterior chest, trunk w/ shedding
of the epidermis.

Considering the presence of these two mitigating circumstances

arising from BWS, as well as the benefits of the Indeterminate
Sentence Law, she may now apply for and be released from
custody on parole, because she has already served the minimum
period of her penalty while under detention during the pendency
of this case.
The Case
For automatic review before this Court is the September 25,
1998 Decision1 of the Regional Trial Court (RTC) of Ormoc City
(Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa

EVIDENCE

'Abdomen
bloated.'

distended

w/

gas.

Trunk

which caused his death."4

With the assistance of her counsel,5 appellant pleaded not guilty
during her arraignment on March 3, 1997.6 In due course, she
was tried for and convicted of parricide.
The Facts

AGUSTIN, E.P. | 136

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the
prosecution's version of the facts in this wise:
"Appellant and Ben Genosa were united in marriage
on November 19, 1983 in Ormoc City. Thereafter,
they lived with the parents of Ben in their house at
Isabel, Leyte. For a time, Ben's younger brother, Alex,
and his wife lived with them too. Sometime in 1995,
however, appellant and Ben rented from Steban
Matiga a house at Barangay Bilwang, Isabel, Leyte
where they lived with their two children, namely:
John Marben and Earl Pierre.
"On November 15, 1995, Ben and Arturo Basobas
went to a cockfight after receiving their salary. They
each had two (2) bottles of beer before heading
home. Arturo would pass Ben's house before reaching
his. When they arrived at the house of Ben, he found
out that appellant had gone to Isabel, Leyte to look
for him. Ben went inside his house, while Arturo went
to a store across it, waiting until 9:00 in the evening
for the masiao runner to place a bet. Arturo did not
see appellant arrive but on his way home passing the
side of the Genosas' rented house, he heard her say 'I
won't hesitate to kill you' to which Ben replied 'Why
kill me when I am innocent?' That was the last time
Arturo saw Ben alive. Arturo also noticed that since
then, the Genosas' rented house appeared
uninhabited and was always closed.
"On November 16, 1995, appellant asked Erlinda
Paderog, her close friend and neighbor living about
fifty (50) meters from her house, to look after her pig
because she was going to Cebu for a pregnancy
check-up. Appellant likewise asked Erlinda to sell her
motorcycle to their neighbor Ronnie Dayandayan who
unfortunately had no money to buy it.
"That same day, about 12:15 in the afternoon, Joseph
Valida was waiting for a bus going to Ormoc when he
saw appellant going out of their house with her two
kids in tow, each one carrying a bag, locking the gate
and taking her children to the waiting area where he
was. Joseph lived about fifty (50) meters behind the
Genosas' rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no
conversation as Joseph noticed that appellant did not
want to talk to him.
"On November 18, 1995, the neighbors of Steban
Matiga told him about the foul odor emanating from
his house being rented by Ben and appellant. Steban
went there to find out the cause of the stench but the
house was locked from the inside. Since he did not
have a duplicate key with him, Steban destroyed the
gate padlock with a borrowed steel saw. He was able
to get inside through the kitchen door but only after
destroying a window to reach a hook that locked it.
Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There,
he saw the lifeless body of Ben lying on his side on
the bed covered with a blanket. He was only in his
briefs with injuries at the back of his head. Seeing
this, Steban went out of the house and sent word to
the mother of Ben about his son's misfortune. Later

EVIDENCE

that day, Iluminada Genosa, the mother of Ben,

identified the dead body as that of [her] son.
"Meanwhile, in the morning of the same day, SPO3
Leo Acodesin, then assigned at the police station at
Isabel, Leyte, received a report regarding the foul
smell at the Genosas' rented house. Together with
SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo,
SPO3 Acodesin proceeded to the house and went
inside the bedroom where they found the dead body
of Ben lying on his side wrapped with a bedsheet.
There was blood at the nape of Ben who only had his
briefs on. SPO3 Acodesin found in one corner at the
side of an aparador a metal pipe about two (2)
meters from where Ben was, leaning against a wall.
The metal pipe measured three (3) feet and six (6)
inches long with a diameter of one and half (1 1/2)
inches. It had an open end without a stop valve with
a red stain at one end. The bedroom was not in
disarray.
"About 10:00 that same morning, the cadaver of Ben,
because of its stench, had to be taken outside at the
back of the house before the postmortem
examination was conducted by Dr. Cerillo in the
presence of the police. A municipal health officer at
Isabel, Leyte responsible for medico-legal cases, Dr.
Cerillo found that Ben had been dead for two to three
days and his body was already decomposing. The
postmortem examination of Dr. Cerillo yielded the
findings quoted in the Information for parricide later
filed against appellant. She concluded that the cause
of Ben's death was 'cardiopulmonary arrest secondary
to severe intracranial hemorrhage due to a depressed
fracture of the occipital [bone].'
"Appellant admitted killing Ben. She testified that
going home after work on November 15, 1995, she
got worried that her husband who was not home yet
might have gone gambling since it was a payday.
With her cousin Ecel Arao, appellant went to look for
Ben at the marketplace and taverns at Isabel, Leyte
but did not find him there. They found Ben drunk
upon their return at the Genosas' house. Ecel went
home despite appellant's request for her to sleep in
their house.
"Then, Ben purportedly nagged appellant for
following him, even challenging her to a fight. She
allegedly ignored him and instead attended to their
children who were doing their homework. Apparently
disappointed with her reaction, Ben switched off the
light and, with the use of a chopping knife, cut the
television antenna or wire to keep her from watching
television. According to appellant, Ben was about to
attack her so she ran to the bedroom, but he got hold
of her hands and whirled her around. She fell on the
side of the bed and screamed for help. Ben left. At
this point, appellant packed his clothes because she
wanted him to leave. Seeing his packed clothes upon
his return home, Ben allegedly flew into a rage,
dragged appellant outside of the bedroom towards a
drawer holding her by the neck, and told her 'You
might as well be killed so nobody would nag me.'
Appellant testified that she was aware that there was
a gun inside the drawer but since Ben did not have
the key to it, he got a three-inch long blade cutter
from his wallet. She however, 'smashed' the arm of
Ben with a pipe, causing him to drop the blade and

AGUSTIN, E.P. | 137

his wallet. Appellant then 'smashed' Ben at his nape

with the pipe as he was about to pick up the blade
and his wallet. She thereafter ran inside the bedroom.

incident was in 1995 when the couple had already

transferred to the house in Bilwang and she saw that
Ben's hand was plastered as 'the bone cracked.'

"Appellant, however, insisted that she ended the life

of her husband by shooting him. She supposedly
'distorted' the drawer where the gun was and shot
Ben. He did not die on the spot, though, but in the
bedroom."7 (Citations omitted)

"Both mother and son claimed they brought Ben to a

Pasar clinic for medical intervention.

Version of the Defense

Appellant relates her version of the facts in this manner:
"1. Marivic and Ben Genosa were allegedly married on
November 19, 1983. Prior to her marriage, Marivic
had graduated from San Carlos, Cebu City, obtaining
a degree of Bachelor of Science in Business
Administration, and was working, at the time of her
husband's death, as a Secretary to the Port Managers
in Ormoc City. The couple had three (3) children:
John Marben, Earl Pierre and Marie Bianca.
"2. Marivic and Ben had known each other since
elementary school; they were neighbors in Bilwang;
they were classmates; and they were third degree
cousins. Both sets of parents were against their
relationship, but Ben was persistent and tried to stop
other suitors from courting her. Their closeness
developed as he was her constant partner at fiestas.
"3. After their marriage, they lived first in the home of
Ben's parents, together with Ben's brother, Alex, in
Isabel, Leyte. In the first year of marriage, Marivic
and Ben 'lived happily'. But apparently, soon
thereafter, the couple would quarrel often and their
fights would become violent.
"4. Ben's brother, Alex, testified for the prosecution
that he could not remember when Ben and Marivic
married. He said that when Ben and Marivic
quarreled, generally when Ben would come home
drunk, Marivic would inflict injuries on him. He said
that in one incident in 1993 he saw Marivic holding a
kitchen knife after Ben had shouted for help as his
left hand was covered with blood. Marivic left the
house but after a week, she returned apparently
having asked for Ben's forgiveness. In another
incident in May 22, 1994, early morning, Alex and his
father apparently rushed to Ben's aid again and saw
blood from Ben's forehead and Marivic holding an
empty bottle. Ben and Marivic reconciled after Marivic
had apparently again asked for Ben's forgiveness.
"Mrs. Iluminada Genosa, Marivic's mother-in-law,
testified too, saying that Ben and Marivic married in
'1986 or 1985 more or less here in Fatima, Ormoc
City.' She said as the marriage went along, Marivic
became 'already very demanding. Mrs. Iluminada
Genosa said that after the birth of Marivic's two sons,
there were 'three (3) misunderstandings.' The first
was when Marivic stabbed Ben with a table knife
through his left arm; the second incident was on
November 15, 1994, when Marivic struck Ben on the
forehead 'using a sharp instrument until the eye was
also affected. It was wounded and also the ear' and
her husband went to Ben to help; and the third

EVIDENCE

"5. Arturo Basobas, a co-worker of Ben, testified that

on November 15, 1995 'After we collected our salary,
we went to the cock-fighting place of ISCO.' They
stayed there for three (3) hours, after which they
went to 'Uniloks' and drank beer allegedly only two
(2) bottles each. After drinking they bought barbeque
and went to the Genosa residence. Marivic was not
there. He stayed a while talking with Ben, after which
he went across the road to wait 'for the runner and
the usher of the masiao game because during that
time, the hearing on masiao numbers was rampant. I
was waiting for the ushers and runners so that I can
place my bet.' On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were
quarreling loudly. Outside their house was one 'Fredo'
who is used by Ben to feed his fighting cocks.
Basobas' testimony on the root of the quarrel,
conveniently overheard by him was Marivic saying 'I
will never hesitate to kill you', whilst Ben replied 'Why
kill me when I am innocent.' Basobas thought they
were joking.
"He did not hear them quarreling while he was across
the road from the Genosa residence. Basobas
admitted that he and Ben were always at the cockpits
every Saturday and Sunday. He claims that he once
told Ben 'before when he was stricken with a bottle
by Marivic Genosa' that he should leave her and that
Ben would always take her back after she would leave
him 'so many times'.
"Basobas could not remember when Marivic had hit
Ben, but it was a long time that they had been
quarreling. He said Ben 'even had a wound' on the
right forehead. He had known the couple for only one
(1) year.
"6. Marivic testified that after the first year of
marriage, Ben became cruel to her and was a habitual
drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and
sometimes beat her.
"These incidents happened several times and she
would often run home to her parents, but Ben would
follow her and seek her out, promising to change and
would ask for her forgiveness. She said after she
would be beaten, she would seek medical help from
Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These
doctors would enter the injuries inflicted upon her by
Ben into their reports. Marivic said Ben would beat
her or quarrel with her every time he was drunk, at
least three times a week.
"7. In her defense, witnesses who were not so closely
related to Marivic, testified as to the abuse and
violence she received at the hands of Ben.
'7.1. Mr. Joe Barrientos, a fisherman, who was a
[neighbor] of the Genosas, testified that on November

AGUSTIN, E.P. | 138

15, 1995, he overheard a quarrel between Ben and

Marivic. Marivic was shouting for help and through
the open jalousies, he saw the spouses 'grappling
with each other'. Ben had Marivic in a choke hold. He
did not do anything, but had come voluntarily to
testify. (Please note this was the same night as that
testified to by Arturo Busabos.8)
'7.2. Mr. Junnie Barrientos, also a fisherman, and the
brother of Mr. Joe Barrientos, testified that he heard
his neighbor Marivic shouting on the night of
November 15, 1995. He peeped through the window
of his hut which is located beside the Genosa house
and saw 'the spouses grappling with each other then
Ben Genosa was holding with his both hands the neck
of the accused, Marivic Genosa'. He said after a while,
Marivic was able to extricate he[r]self and enter the
room of the children. After that, he went back to work
as he was to go fishing that evening. He returned at
8:00 the next morning. (Again, please note that this

was the same night as that testified to by Arturo

Basobas).

'7.3. Mr. Teodoro Sarabia was a former neighbor of

the Genosas while they were living in Isabel, Leyte.
His house was located about fifty (50) meters from
theirs. Marivic is his niece and he knew them to be
living together for 13 or 14 years. He said the couple
was always quarreling. Marivic confided in him that
Ben would pawn items and then would use the
money to gamble. One time, he went to their house
and they were quarreling. Ben was so angry, but
would be pacified 'if somebody would come.' He
testified that while Ben was alive 'he used to gamble
and when he became drunk, he would go to our
house and he will say, 'Teody' because that was what
he used to call me, 'mokimas ta,' which means 'let's
go and look for a whore.' Mr. Sarabia further testified
that Ben 'would box his wife and I would see bruises
and one time she ran to me, I noticed a wound (the
witness pointed to his right breast) as according to
her a knife was stricken to her.' Mr. Sarabia also said
that once he saw Ben had been injured too. He said
he voluntarily testified only that morning.
'7.4. Miss Ecel Arano, an 18-year old student, who is
a cousin of Marivic, testified that in the afternoon of
November 15, 1995, Marivic went to her house and
asked her help to look for Ben. They searched in the
market place, several taverns and some other places,
but could not find him. She accompanied Marivic
home. Marivic wanted her to sleep with her in the
Genosa house 'because she might be battered by her
husband.' When they got to the Genosa house at
about 7:00 in the evening, Miss Arano said that 'her
husband was already there and was drunk.' Miss
Arano knew he was drunk 'because of his staggering
walking and I can also detect his face.' Marivic
entered the house and she heard them quarrel
noisily. (Again, please note that this is the same night
as that testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic had
asked her to sleep in the house as Marivic would be
afraid every time her husband would come home
drunk. At one time when she did sleep over, she was
awakened at 10:00 in the evening when Ben arrived
because the couple 'were very noisy in the sala and I
had heard something was broken like a vase.' She
said Marivic ran into her room and they locked the

EVIDENCE

door. When Ben couldn't get in he got a chair and a

knife and 'showed us the knife through the window
grill and he scared us.' She said that Marivic shouted
for help, but no one came. On cross-examination, she
said that when she left Marivic's house on November
15, 1995, the couple were still quarreling.
'7.5. Dr. Dino Caing, a physician testified that he and
Marivic were co-employees at PHILPHOS, Isabel,
Leyte. Marivic was his patient 'many times' and had
also received treatment from other doctors. Dr. Caing
testified that from July 6, 1989 until November 9,
1995, there were six (6) episodes of physical injuries
inflicted upon Marivic. These injuries were reported in
his Out-Patient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr. Caing
and considered him an expert witness.'
xxx

xxx

xxx

'Dr. Caing's clinical history of the tension headache

and hypertention of Marivic on twenty-three (23)
separate occasions was marked at Exhibits '2' and '2B.' The OPD Chart of Marivic at the Philphos Clinic
which reflected all the consultations made by Marivic
and the six (6) incidents of physical injuries reported
was marked as Exhibit '3.'
"On cross-examination, Dr. Caing said that he is not a
psychiatrist, he could not say whether the injuries
were directly related to the crime committed. He said
it is only a psychiatrist who is qualified to examine the
psychological make-up of the patient, 'whether she is
capable of committing a crime or not.'
'7.6 Mr. Panfilo Tero, the barangay captain in the
place where the Genosas resided, testified that about
two (2) months before Ben died, Marivic went to his
office past 8:00 in the evening. She sought his help to
settle or confront the Genosa couple who were
experiencing 'family troubles'. He told Marivic to
return in the morning, but he did not hear from her
again and assumed 'that they might have settled with
each other or they might have forgiven with each
other.'
xxx

xxx

xxx

"Marivic said she did not provoke her husband when

she got home that night it was her husband who
began the provocation. Marivic said she was
frightened that her husband would hurt her and she
wanted to make sure she would deliver her baby
safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from
eclampsia and hypertension, and the baby was born
prematurely on December 1, 1995.
"Marivic testified that during her marriage she had
tried to leave her husband at least five (5) times, but
that Ben would always follow her and they would
reconcile. Marivic said that the reason why Ben was
violent and abusive towards her that night was
because 'he was crazy about his recent girlfriend, Lulu
x x x Rubillos.'

AGUSTIN, E.P. | 139

"On cross-examination, Marivic insisted she shot Ben

with a gun; she said that he died in the bedroom;
that their quarrels could be heard by anyone passing
their house; that Basobas lied in his testimony; that
she left for Manila the next day, November 16, 1995;
that she did not bother anyone in Manila, rented
herself a room, and got herself a job as a field
researcher under the alias 'Marvelous Isidro'; she did
not tell anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby; and that
she was arrested in San Pablo, Laguna.
'Answering questions from the Court, Marivic said that
she threw the gun away; that she did not know what
happened to the pipe she used to 'smash him once';
that she was wounded by Ben on her wrist with the
bolo; and that two (2) hours after she was 'whirled'
by Ben, he kicked her 'ass' and dragged her towards
the drawer when he saw that she had packed his
things.'
"9. The body of Ben Genosa was found on November
18, 1995 after an investigation was made of the foul
odor emitting from the Genosa residence. This fact
was testified to by all the prosecution witnesses and
some defense witnesses during the trial.
"10. Dra. Refelina Y. Cerillo, a physician, was the
Municipal Health Officer of Isabel, Leyte at the time of
the incident, and among her responsibilities as such
was to take charge of all medico-legal cases, such as
the examination of cadavers and the autopsy of
cadavers. Dra. Cerillo is not a forensic pathologist.
She merely took the medical board exams and passed
in 1986. She was called by the police to go to the
Genosa residence and when she got there, she saw
'some police officer and neighbor around.' She saw
Ben Genosa, covered by a blanket, lying in a semiprone position with his back to the door. He was
wearing only a brief.
xxxxxxxxx
"Dra. Cerillo said that 'there is only one injury and
that is the injury involving the skeletal area of the
head' which she described as a 'fracture'. And that
based on her examination, Ben had been dead 2 or 3
days. Dra. Cerillo did not testify as to what caused his
death.
"Dra. Cerillo was not cross-examined by defense
counsel.
"11. The Information, dated November 14, 1996, filed
against Marivic Genosa charged her with the crime of
PARRICIDE committed 'with intent to kill, with
treachery and evidence premeditation, x x x wilfully,
unlawfully and feloniously attack, assault, hit and
wound x x x her legitimate husband, with the use of a
hard deadly weapon x x x which caused his death.'
"12. Trial took place on 7 and 14 April 1997, 14 May
1997, 21 July 1997, 17, 22 and 23 September 1997,
12 November 1997, 15 and 16 December 1997, 22
May 1998, and 5 and 6 August 1998.

EVIDENCE

"13. On 23 September 1998, or only fifty (50) days

from the day of the last trial date, the Hon. Fortunito
L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc
City, rendered a JUDGMENT finding Marivic guilty
'beyond reasonable doubt' of the crime of parricide,
and further found treachery as an aggravating
circumstance, thus sentencing her to the ultimate
penalty of DEATH.
"14. The case was elevated to this Honorable Court
upon automatic review and, under date of 24 January
2000, Marivic's trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel,
attaching thereto, as a precautionary measure, two
(2) drafts of Appellant's Briefs he had prepared for
Marivic which, for reasons of her own, were not
conformed to by her.
"The Honorable Court allowed the withdrawal of Atty.
Tabucanon and permitted the entry of appearance of
undersigned counsel.
"15. Without the knowledge of counsel, Marivic
Genosa wrote a letter dated 20 January 2000, to the
Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief
Judicial Records Office, wherein she submitted her
'Brief without counsels' to the Court.
"This letter was stamp-received by the Honorable
Court on 4 February 2000.
"16. In the meantime, under date of 17 February
2000, and stamp-received by the Honorable Court on
19 February 2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying that the
Honorable Court allow the exhumation of Ben Genosa
and the re-examination of the cause of his death;
allow the examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her state
of mind at the time she killed her husband; and
finally, to allow a partial re-opening of the case a quo
to take the testimony of said psychologists and
psychiatrists.
"Attached to the URGENT OMNIBUS MOTION was a
letter of Dr. Raquel Fortun, then the only qualified
forensic pathologist in the country, who opined that
the description of the death wound (as culled from
the post-mortem findings, Exhibit 'A') is more akin to
a gunshot wound than a beating with a lead pipe.
"17. In a RESOLUTION dated 29 September 2000, the
Honorable Court partly granted Marivic's URGENT
OMNIBUS MOTION and remanded the case 'to the
trial court for the reception of expert psychological
and/or psychiatric opinion on the 'battered woman
syndrome' plea, within ninety (90) days from notice,
and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the
TSN and relevant documentary evidence, if any,
submitted.'
"18. On 15 January 2001, Dra. Natividad A. Dayan
appeared and testified before the Hon. Fortunito L.
Madrona, RTC-Branch 35, Ormoc City.

AGUSTIN, E.P. | 140

"Immediately before Dra. Dayan was sworn, the

Court a quo asked if she had interviewed Marivic
Genosa. Dra. Dayan informed the Court that
interviews were done at the Penal Institution in 1999,
but that the clinical interviews and psychological
assessment were done at her clinic.
"Dra. Dayan testified that she has been a clinical
psychologist for twenty (20) years with her own
private clinic and connected presently to the De La
Salle University as a professor. Before this, she was
the Head of the Psychology Department of the
Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St.
Joseph's College; and was the counseling psychologist
of the National Defense College. She has an AB in
Psychology from the University of the Philippines, a
Master of Arts in Clinical [Counseling], Psychology
from the Ateneo, and a PhD from the U.P. She was
the past president of the Psychological Association of
the Philippines and is a member of the American
Psychological Association. She is the secretary of the
International Council of Psychologists from about 68
countries; a member of the Forensic Psychology
Association; and a member of the ASEAN
[Counseling] Association. She is actively involved with
the Philippine Judicial Academy, recently lecturing on
the socio-demographic and psychological profile of
families involved in domestic violence and nullity
cases. She was with the Davide Commission doing
research about Military Psychology. She has written a
book entitled 'Energy Global Psychology' (together
with Drs. Allan Tan and Allan Bernardo). The Genosa
case is the first time she has testified as an expert on
battered women as this is the first case of that
nature.
"Dra. Dayan testified that for the research she
conducted,
on
the
socio-demographic
and
psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500
cases over a period of ten (10) years and discovered
that 'there are lots of variables that cause all of this
marital conflicts, from domestic violence to infidelity,
to psychiatric disorder.'
"Dra. Dayan described domestic violence to comprise
of 'a lot of incidents of psychological abuse, verbal
abuse, and emotional abuse to physical abuse and
also sexual abuse.'
xxx

xxx

xxx

"Dra. Dayan testified that in her studies, 'the battered

woman usually has a very low opinion of herself. She
has
a
self-defeating
and
self-sacrificing
characteristics. x x x they usually think very lowly of
themselves and so when the violence would happen,
they usually think that they provoke it, that they were
the one who precipitated the violence, they provoke
their spouse to be physically, verbally and even
sexually abusive to them.' Dra. Dayan said that
usually a battered x x x comes from a dysfunctional
family or from 'broken homes.'
"Dra. Dayan said that the batterer, just like the
battered woman, 'also has a very low opinion of
himself. But then emerges to have superiority

EVIDENCE

complex and it comes out as being very arrogant,

very hostile, very aggressive and very angry. They
also had (sic) a very low tolerance for frustrations. A
lot of times they are involved in vices like gambling,
drinking and drugs. And they become violent.' The
batterer also usually comes from a dysfunctional
family which over-pampers them and makes them
feel entitled to do anything. Also, they see often how
their parents abused each other so 'there is a lot of
modeling of aggression in the family.'
"Dra. Dayan testified that there are a lot of reasons
why a battered woman does not leave her husband:
poverty, self-blame and guilt that she provoked the
violence, the cycle itself which makes her hope her
husband will change, the belief in her obligations to
keep the family intact at all costs for the sake of the
children.
xxx

xxx

xxx

"Dra. Dayan said that abused wives react differently

to the violence: some leave the house, or lock
themselves in another room, or sometimes try to fight
back triggering 'physical violence on both of them.'
She said that in a 'normal marital relationship,' abuses
also happen, but these are 'not consistent, not
chronic, are not happening day in [and] day out.' In
an 'abnormal marital relationship,' the abuse occurs
day in and day out, is long lasting and 'even would
cause hospitalization on the victim and even death on
the victim.'
xxx

xxx

xxx

"Dra. Dayan said that as a result of the battery of

psychological tests she administered, it was her
opinion that Marivic fits the profile of a battered
woman because 'inspite of her feeling of selfconfidence which we can see at times there are really
feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person.
And at the same time she still has the imprint of all
the abuses that she had experienced in the past.'
xxx

xxx

xxx

"Dra. Dayan said Marivic thought of herself as a

loving wife and did not even consider filing for nullity
or legal separation inspite of the abuses. It was at the
time of the tragedy that Marivic then thought of
herself as a victim.
xxx

xxx

xxx

"19. On 9 February 2001, Dr. Alfredo Pajarillo, a

physician, who has since passed away, appeared and
testified before RTC-Branch 35, Ormoc City.
"Dr. Pajarillo was a Diplomate of the Philippine Board
of Psychiatry; a Fellow of the Philippine Board of
Psychiatry and a Fellow of the Philippine Psychiatry
Association. He was in the practice of psychiatry for
thirty-eight (38) years. Prior to being in private
practice, he was connected with the Veterans
Memorial Medical Centre where he gained his training

AGUSTIN, E.P. | 141

on psychiatry and neurology. After that, he was called

to active duty in the Armed Forces of the Philippines,
assigned to the V. Luna Medical Center for twenty six
(26) years. Prior to his retirement from government
service, he obtained the rank of Brigadier General. He
obtained his medical degree from the University of
Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City
Medical Society; the Cagayan Medical Society; and
the Philippine Association of Military Surgeons.
"He authored 'The Comparative Analysis of Nervous
Breakdown in the Philippine Military Academy from
the Period 1954 1978' which was presented twice in
international congresses. He also authored 'The
Mental Health of the Armed Forces of the Philippines
2000', which was likewise published internationally
and locally. He had a medical textbook published on
the use of Prasepam on a Parke-Davis grant; was the
first to use Enanthate (siquiline), on an E.R. Squibb
grant; and he published the use of the drug Zopiclom
in 1985-86.
"Dr. Pajarillo explained that psychiatry deals with the
functional disorder of the mind and neurology deals
with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a
bachelor degree and a doctorate degree; while one
has to finish medicine to become a specialist in
psychiatry.
"Even only in his 7th year as a resident in V. Luna
Medical Centre, Dr. Pajarillo had already encountered
a suit involving violent family relations, and testified
in a case in 1964. In the Armed Forces of the
Philippines, violent family disputes abound, and he
has seen probably ten to twenty thousand cases. In
those days, the primordial intention of therapy was
reconciliation. As a result of his experience with
domestic violence cases, he became a consultant of
the Battered Woman Office in Quezon City under
Atty. Nenita Deproza.
"As such consultant, he had seen around forty (40)
cases of severe domestic violence, where there is
physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an
unconscious state such that the woman is sometimes
confined. The affliction of Post-Traumatic Stress
Disorder 'depends on the vulnerability of the victim.'
Dr. Pajarillo said that if the victim is not very healthy,
perhaps one episode of violence may induce the
disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, 'it will
take more repetitive trauma to precipitate the posttraumatic stress disorder and this x x x is very
dangerous.'
"In psychiatry, the post-traumatic stress disorder is
incorporated under the 'anxiety neurosis or neurologic
anxcietism.' It is produced by 'overwhelming brutality,
trauma.'
xxx

xxx

xxx

"Dr. Pajarillo explained that with 'neurotic anxiety',

the victim relives the beating or trauma as if it were

EVIDENCE

real, although she is not actually being beaten at that

time. She thinks 'of nothing but the suffering.'
xxx

xxx

xxx

"A woman who suffers battery has a tendency to

become neurotic, her emotional tone is unstable, and
she is irritable and restless. She tends to become
hard-headed and persistent. She has higher
sensitivity and her 'self-world' is damaged.
"Dr. Pajarillo said that an abnormal family background
relates to an individual's illness, such as the
deprivation of the continuous care and love of the
parents. As to the batterer, he normally 'internalizes
what is around him within the environment.' And it
becomes his own personality. He is very competitive;
he is aiming high all the time; he is so macho; he
shows his strong faade 'but in it there are doubts in
himself and prone to act without thinking.'
xxx

xxx

xxx

"Dr. Pajarillo emphasized that 'even though without

the presence of the precipator (sic) or the one who
administered the battering, that re-experiencing of
the trauma occurred (sic) because the individual
cannot control it. It will just come up in her mind or in
his mind.'
xxx

xxx

xxx

"Dr. Pajarillo said that a woman suffering post

traumatic stress disorder try to defend themselves,
and 'primarily with knives. Usually pointed weapons
or any weapon that is available in the immediate
surrounding or in a hospital x x x because that
abound in the household.' He said a victim resorts to
weapons when she has 'reached the lowest rock
bottom of her life and there is no other recourse left
on her but to act decisively.'
xxx

xxx

xxx

"Dr. Pajarillo testified that he met Marivic Genosa in

his office in an interview he conducted for two (2)
hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a
help in forming his diagnosis. He came out with a
Psychiatric Report, dated 22 January 2001.
xxx

xxx

xxx

"On cross-examination by the private prosecutor, Dr.

Pajarillo said that at the time she killed her husband
Marivic'c mental condition was that she was 'reexperiencing the trauma.' He said 'that we are trying
to explain scientifically that the re-experiencing of the
trauma is not controlled by Marivic. It will just come
in flashes and probably at that point in time that
things happened when the re-experiencing of the
trauma flashed in her mind.' At the time he
interviewed Marivic 'she was more subdued, she was
not super alert anymore x x x she is mentally stress
(sic) because of the predicament she is involved.'

AGUSTIN, E.P. | 142

xxx

xxx

xxx

"20. No rebuttal evidence or testimony was presented

by either the private or the public prosecutor. Thus, in
accord with the Resolution of this Honorable Court,
the records of the partially re-opened trial a quo were
elevated."9
Ruling of the Trial Court
Finding the proffered theory of self-defense untenable, the RTC
gave credence to the prosecution evidence that appellant had
killed the deceased while he was in bed sleeping. Further, the
trial court appreciated the generic aggravating circumstance of
treachery, because Ben Genosa was supposedly defenseless
when he was killed -- lying in bed asleep when Marivic smashed
him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated
to this Court for automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion
praying that this Court allow (1) the exhumation of Ben Genosa
and the reexamination of the cause of his death; (2) the
examination of appellant by qualified psychologists and
psychiatrists to determine her state of mind at the time she had
killed her spouse; and (3) the inclusion of the said experts'
reports in the records of the case for purposes of the automatic
review or, in the alternative, a partial reopening of the case for
the lower court to admit the experts' testimonies.
On September 29, 2000, this Court issued a Resolution granting
in part appellant's Motion, remanding the case to the trial court
for the reception of expert psychological and/or psychiatric
opinion on the "battered woman syndrome" plea; and requiring
the lower court to report thereafter to this Court the proceedings
taken as well as to submit copies of the TSN and additional
evidence, if any.
Acting on the Court's Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs.
Natividad Dayan10 and Alfredo Pajarillo,11 supposedly experts on
domestic violence. Their testimonies, along with their
documentary evidence, were then presented to and admitted by
the lower court before finally being submitted to this Court to
form part of the records of the case.12
The Issues
Appellant assigns the following alleged errors of the trial court
for this Court's consideration:
"1. The trial court gravely erred in promulgating an
obviously hasty decision without reflecting on the
evidence adduced as to self-defense.
"2. The trial court gravely erred in finding as a fact
that Ben and Marivic Genosa were legally married and
that she was therefore liable for parricide.
"3. The trial court gravely erred finding the cause of
death to be by beating with a pipe.

EVIDENCE

"4. The trial court gravely erred in ignoring and

disregarding evidence adduced from impartial and
unbiased witnesses that Ben Genosa was a drunk, a
gambler, a womanizer and wife-beater; and further
gravely erred in concluding that Ben Genosa was a
battered husband.
"5. The trial court gravely erred in not requiring
testimony from the children of Marivic Genosa.
"6. The trial court gravely erred in concluding that
Marivic's flight to Manila and her subsequent
apologies were indicia of guilt, instead of a clear
attempt to save the life of her unborn child.
"7. The trial court gravely erred in concluding that
there was an aggravating circumstance of treachery.
"8. The trial court gravely erred in refusing to reevaluate the traditional elements in determining the
existence of self-defense and defense of foetus in this
case, thereby erroneously convicting Marivic Genosa
of the crime of parricide and condemning her to the
ultimate penalty of death."13
In the main, the following are the essential legal issues: (1)
whether appellant acted in self-defense and in defense of her
fetus; and (2) whether treachery attended the killing of Ben
Genosa.
The Court's Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by appellant are factual in
nature, if not collateral to the resolution of the principal issues.
As consistently held by this Court, the findings of the trial court
on the credibility of witnesses and their testimonies are entitled
to a high degree of respect and will not be disturbed on appeal
in the absence of any showing that the trial judge gravely
abused his discretion or overlooked, misunderstood or
misapplied material facts or circumstances of weight and
substance that could affect the outcome of the case.14
In appellant's first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts
that would reverse or modify the trial court's disposition of the
case. In any event, we will now briefly dispose of these alleged
errors of the trial court.

First, we do not agree that the lower court promulgated "an

obviously hasty decision without reflecting on the evidence

adduced as to self-defense." We note that in his 17-page
Decision, Judge Fortunito L. Madrona summarized the
testimonies of both the prosecution and the defense witnesses
and -- on the basis of those and of the documentary evidence on
record -- made his evaluation, findings and conclusions. He
wrote a 3-page discourse assessing the testimony and the selfdefense theory of the accused. While she, or even this Court,
may not agree with the trial judge's conclusions, we cannot
peremptorily conclude, absent substantial evidence, that he
failed to reflect on the evidence presented.

AGUSTIN, E.P. | 143

Neither do we find the appealed Decision to have been made in

an "obviously hasty" manner. The Information had been filed
with the lower court on November 14, 1996. Thereafter, trial
began and at least 13 hearings were held for over a year. It took
the trial judge about two months from the conclusion of trial to
promulgate his judgment. That he conducted the trial and
resolved the case with dispatch should not be taken against him,
much less used to condemn him for being unduly hasty. If at all,
the dispatch with which he handled the case should be lauded.
In any case, we find his actions in substantial compliance with
his constitutional obligation.15

Second, the lower court did not err in finding as a fact that Ben

Genosa and appellant had been legally married, despite the nonpresentation of their marriage contract. In People v. Malabago,16
this Court held:

the discretion to determine which witnesses and evidence are

necessary to present.20 As the former further points out, neither
the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault
the lower court for not requiring them to testify.

Finally, merely collateral or corroborative is the matter of

whether the flight of Marivic to Manila and her subsequent

apologies to her brother-in-law are indicia of her guilt or are
attempts to save the life of her unborn child. Any reversible error
as to the trial court's appreciation of these circumstances has
little bearing on the final resolution of the case.
First Legal Issue:

Self-Defense and Defense of a Fetus

"The key element in parricide is the relationship of the
offender with the victim. In the case of parricide of a
spouse, the best proof of the relationship between
the accused and the deceased is the marriage
certificate. In the absence of a marriage certificate,
however, oral evidence of the fact of marriage may
be considered by the trial court if such proof is not
objected to."
Two of the prosecution witnesses -- namely, the mother and the
brother of appellant's deceased spouse -- attested in court that
Ben had been married to Marivic.17 The defense raised no
objection to these testimonies. Moreover, during her direct
examination, appellant herself made a judicial admission of her
marriage to Ben.18 Axiomatic is the rule that a judicial admission
is conclusive upon the party making it, except only when there is
a showing that (1) the admission was made through a palpable
mistake, or (2) no admission was in fact made.19 Other than
merely attacking the non-presentation of the marriage contract,
the defense offered no proof that the admission made by
appellant in court as to the fact of her marriage to the deceased
was made through a palpable mistake.

Third, under the circumstances of this case, the specific or direct

cause of Ben's death -- whether by a gunshot or by beating with

a pipe -- has no legal consequence. As the Court elucidated in its
September 29, 2000 Resolution, "[c]onsidering that the
appellant has admitted the fact of killing her husband and the
acts of hitting his nape with a metal pipe and of shooting him at
the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts
actually caused the victim's death." Determining which of these
admitted acts caused the death is not dispositive of the guilt or
defense of appellant.

Fourth, we cannot fault the trial court for not fully appreciating

evidence that Ben was a drunk, gambler, womanizer and wifebeater. Until this case came to us for automatic review,
appellant had not raised the novel defense of "battered woman
syndrome," for which such evidence may have been relevant.
Her theory of self-defense was then the crucial issue before the
trial court. As will be discussed shortly, the legal requisites of
self-defense under prevailing jurisprudence ostensibly appear
inconsistent with the surrounding facts that led to the death of
the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.

Fifth, the trial court surely committed no error in not requiring

testimony from appellant's children. As correctly elucidated by

the solicitor general, all criminal actions are prosecuted under
the direction and control of the public prosecutor, in whom lies

EVIDENCE

Appellant admits killing Ben Genosa but, to avoid criminal

liability, invokes self-defense and/or defense of her unborn child.
When the accused admits killing the victim, it is incumbent upon
her to prove any claimed justifying circumstance by clear and
convincing evidence.21 Well-settled is the rule that in criminal
cases, self-defense (and similarly, defense of a stranger or third
person) shifts the burden of proof from the prosecution to the
defense.22

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the
battered woman syndrome. While new in Philippine
jurisprudence, the concept has been recognized in foreign
jurisdictions as a form of self-defense or, at the least, incomplete
self-defense.23 By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey
their "understanding of the justifiably fearful state of mind of a
person who has been cyclically abused and controlled over a
period of time."24
A battered woman has been defined as a woman "who is
repeatedly subjected to any forceful physical or psychological
behavior by a man in order to coerce her to do something he
wants her to do without concern for her rights. Battered women
include wives or women in any form of intimate relationship with
men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least
twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in
the situation, she is defined as a battered woman."25
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and
the female sex role; emotional dependence upon the dominant
male; the tendency to accept responsibility for the batterer's
actions; and false hopes that the relationship will improve.26
More graphically, the battered woman syndrome is characterized
by the so-called "cycle of violence,"27 which has three phases:
(1) the tension-building phase; (2) the acute battering incident;
and (3) the tranquil, loving (or, at least, nonviolent) phase.28
During the tension-building phase, minor battering occurs -it could be verbal or slight physical abuse or another form of
hostile behavior. The woman usually tries to pacify the batterer
through a show of kind, nurturing behavior; or by simply staying
out of his way. What actually happens is that she allows herself
to be abused in ways that, to her, are comparatively minor. All

AGUSTIN, E.P. | 144

she wants is to prevent the escalation of the violence exhibited

by the batterer. This wish, however, proves to be double-edged,
because her "placatory" and passive behavior legitimizes his
belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal and/or
physical abuse worsens. Each partner senses the imminent loss
of control and the growing tension and despair. Exhausted from
the persistent stress, the battered woman soon withdraws
emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence "spirals out of
control" and leads to an acute battering incident.29
The acute battering incident is said to be characterized by
brutality, destructiveness and, sometimes, death. The battered
woman deems this incident as unpredictable, yet also inevitable.
During this phase, she has no control; only the batterer may put
an end to the violence. Its nature can be as unpredictable as the
time of its explosion, and so are his reasons for ending it. The
battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence
may be rationalized thus: the batterer is almost always much
stronger physically, and she knows from her past painful
experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent
bystanders or intervenors are likely to get hurt.30
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may
show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for
it, begging for her forgiveness and promising never to beat her
again. On the other hand, the battered woman also tries to
convince herself that the battery will never happen again; that
her partner will change for the better; and that this "good,
gentle and caring man" is the real person whom she loves.
A battered woman usually believes that she is the sole anchor of
the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being. The truth,
though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she
remains with him. Generally, only after she leaves him does he
seek professional help as a way of getting her back. Yet, it is in
this phase of remorseful reconciliation that she is most
thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a
battered woman's psyche. In this phase, she and her batterer
are indeed emotionally dependent on each other -- she for his
nurturant behavior, he for her forgiveness. Underneath this
miserable cycle of "tension, violence and forgiveness," each
partner may believe that it is better to die than to be separated.
Neither one may really feel independent, capable of functioning
without the other.31

History
in the Present Case

of

Abuse

To show the history of violence inflicted upon appellant, the

defense presented several witnesses. She herself described her
heart-rending experience as follows:
"ATTY. TABUCANON
Q How did you describe your marriage with Ben
Genosa?
A In the first year, I lived with him happily but in the
subsequent year he was cruel to me and a behavior
of habitual drinker.
Q You said that in the subsequent year of your
marriage, your husband was abusive to you and
cruel. In what way was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he always slap
me and sometimes he pinned me down on the bed
and sometimes beat me.
Q How many times did this happen?
A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father
and we separate each other.
Q What was the action of Ben Genosa towards you
leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I
was convinced and after that I go to him and he said
'sorry'.
Q During those times that you were the recipient of
such cruelty and abusive behavior by your husband,
were you able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo.
xxx

xxx

xxx

Q You said that you saw a doctor in relation to your

injuries?
A Yes, sir.

EVIDENCE

AGUSTIN, E.P. | 145

Q Who inflicted these injuries?

3. March 26, 1993 - Abrasion, Furuncle (L)

Axilla;

A Of course my husband.

4. August 1, 1994 - Pain, mastitis (L)

breast, 2o to trauma. Attending physician:
Dr. Caing;

Q You mean Ben Genosa?

A Yes, sir.
xxx

xxx

5. April 17, 1995 - Trauma, tenderness (R)

Shoulder. Attending physician: Dr. Canora;
and

xxx

6. June 5, 1995 - Swelling Abrasion (L) leg,

multiple contusion Pregnancy. Attending
physician: Dr. Canora.

[Court] /to the witness

Q How frequent was the alleged cruelty that you
said?
A Everytime he got drunk.

Q Among the findings, there were two (2) incidents

wherein you were the attending physician, is that
correct?

Q No, from the time that you said the cruelty or the
infliction of injury inflicted on your occurred, after
your marriage, from that time on, how frequent was
the occurrence?

A Yes, sir.

A Everytime he got drunk.

A Yes, sir.

Q Is it daily, weekly, monthly or how many times in a

month or in a week?

Q Now, going to your finding no. 3 where you were

the one who attended the patient. What do you mean
by abrasion furuncle left axilla?

A Three times a week.

Q Do you mean three times a week he would beat
you?
A Not necessarily that he would beat me but
sometimes he will just quarrel me." 32
33

Referring to his "Out-Patient Chart" on Marivic Genosa at the

Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing
testimony on chronic battery in this manner:
"Q So, do you have a summary of those six (6)
incidents which are found in the chart of your clinic?

Q Did you actually physical examine the accused?

A Abrasion is a skin wound usually when it comes in

contact with something rough substance if force is
applied.
Q What is meant by furuncle axilla?
A It is secondary of the light infection over the
abrasion.
Q What is meant by pain mastitis secondary to
trauma?

A Yes, sir.

A So, in this 4th episode of physical injuries there is

an inflammation of left breast. So, [pain] meaning
there is tenderness. When your breast is traumatized,
there is tenderness pain.

Q Who prepared the list of six (6) incidents, Doctor?

Q So, these are objective physical injuries. Doctor?

A I did.

xxx

Q Will you please read the physical findings together

with the dates for the record.

Q Were you able to talk with the patient?

A 1. May 12, 1990 - physical findings are as follows:

Hematoma (R) lower eyelid and redness of eye.
Attending physician: Dr. Lucero;
2. March 10, 1992 - Contusion-Hematoma
(L) lower arbital area, pain and contusion
(R) breast. Attending physician: Dr.
Canora;

EVIDENCE

xxx

xxx

A Yes, sir.
Q What did she tell you?
A As a doctor-patient relationship, we need to know
the cause of these injuries. And she told me that it
was done to her by her husband.

AGUSTIN, E.P. | 146

Q You mean, Ben Genosa?

A Yes, sir.
xxx

xxx

xxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical
examine the accused sometime in the month of
November, 1995 when this incident happened?

Q Lets go back to the clinical history of Marivic

Genosa. You said that you were able to examine her
personally on November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of tension headache
secondary to hypertension and I think I have a record
here, also the same period from 1989 to 1995, she
had a consultation for twenty-three (23) times.
Q For what?

A As per record, yes.

A Tension headache.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this
Honorable Court, was the patient pregnant?

Q Can we say that specially during the latter

consultation, that the patient had hypertension?
A The patient definitely had hypertension. It was
refractory to our treatment. She does not response
when the medication was given to her, because
tension headache is more or less stress related and
emotional in nature.
Q What did you deduce of tension headache when
you said is emotional in nature?

A Yes, sir.
Q Being a doctor, can you more engage at what stage
of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance stage of
pregnancy?
A Yes, sir.
Q What was your November 6, 1995 examination,
was it an examination about her pregnancy or for
some other findings?
A No, she was admitted for hypertension headache
which complicates her pregnancy.
Q When you said admitted, meaning she was
confined?
A Yes, sir.
Q For how many days?

A From what I deduced as part of our physical

examination of the patient is the family history in line
of giving the root cause of what is causing this
disease. So, from the moment you ask to the patient
all comes from the domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of blood
pressure, Doctor?
A Yes, if it is emotionally related and stressful it can
cause
increases
in
hypertension
which
is
unfortunately does not response to the medication.
Q In November 6, 1995, the date of the incident, did
you take the blood pressure of the accused?
A On November 6, 1995 consultation, the blood
pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.

A One day.
Q Where?

Q Considering that she was 8 months pregnant, you

mean this is dangerous level of blood pressure?

A At PHILPHOS Hospital.

A It was dangerous to the child or to the fetus."

xxx

xxx

EVIDENCE

34

xxx

AGUSTIN, E.P. | 147

Another defense witness, Teodoro Sarabia, a former neighbor of

the Genosas in Isabel, Leyte, testified that he had seen the
couple quarreling several times; and that on some occasions
Marivic would run to him with bruises, confiding that the injuries
were inflicted upon her by Ben.35

Q By the way, where was your conjugal residence

situated this time?

Ecel Arano also testified36 that for a number of times she had
been asked by Marivic to sleep at the Genosa house, because
the latter feared that Ben would come home drunk and hurt her.
On one occasion that Ecel did sleep over, she was awakened
about ten o'clock at night, because the couple "were very noisy
and I heard something was broken like a vase." Then Marivic
came running into Ecel's room and locked the door. Ben showed
up by the window grill atop a chair, scaring them with a knife.

Q Is this your house or you are renting?

A Bilwang.

A Renting.
Q What time were you able to come back in your
residence at Bilwang?
A I went back around almost 8:00 o'clock.

On the afternoon of November 15, 1995, Marivic again asked her

help -- this time to find Ben -- but they were unable to. They
returned to the Genosa home, where they found him already
drunk. Again afraid that he might hurt her, Marivic asked her to
sleep at their house. Seeing his state of drunkenness, Ecel
hesitated; and when she heard the couple start arguing, she
decided to leave.
On that same night that culminated in the death of Ben Genosa,
at least three other witnesses saw or heard the couple
quarreling.37 Marivic relates in detail the following backdrop of
the fateful night when life was snuffed out of him, showing in
the process a vivid picture of his cruelty towards her:
"ATTY. TABUCANON:
Q Please tell this Court, can you recall the incident in
November 15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the
office working then after office hours, I boarded the
service bus and went to Bilwang. When I reached
Bilwang, I immediately asked my son, where was his
father, then my second child said, 'he was not home
yet'. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting
for him, my eldest son arrived from school, I prepared
dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?

Q What happened when you arrived in your

residence?
A When I arrived home with my cousin Ecel whom I
requested to sleep with me at that time because I
had fears that he was again drunk and I was worried
that he would again beat me so I requested my
cousin to sleep with me, but she resisted because she
had fears that the same thing will happen again last
year.
Q Who was this cousin of yours who you requested to
sleep with you?
A Ecel Arao, the one who testified.
Q Did Ecel sleep with you in your house on that
evening?
A No, because she expressed fears, she said her
father would not allow her because of Ben.
Q During this period November 15, 1995, were you
pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?

A When he arrived, I was not there, I was in Isabel

looking for him.

A Yes, sir.

Q So when he arrived you were in Isabel looking for

him?

Q What's the name of the baby you were carrying at

that time?

A Yes, sir.

A Marie Bianca.

Q Did you come back to your house?

Q What time were you able to meet personally your

husband?

A Yes, sir.

EVIDENCE

A Yes, sir.

AGUSTIN, E.P. | 148

Q What time?
A When I arrived home, he was there already in his
usual behavior.
Q Will you tell this Court what was his disposition?
A He was drunk again, he was yelling in his usual
unruly behavior.
Q What was he yelling all about?
A His usual attitude when he got drunk.
Q You said that when you arrived, he was drunk and
yelling at you? What else did he do if any?

Q You said the children were scared, what else

happened as Ben was carrying that bolo?
A He was about to attack me so I run to the room.
Q What do you mean that he was about to attack
you?
A When I attempt to run he held my hands and he
whirled me and I fell to the bedside.
Q So when he whirled you, what happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on
the bedside?

A He is nagging at me for following him and he dared

me to quarrel him.

A Yes, sir.

Q What was the cause of his nagging or quarreling at

you if you know?

Q You screamed for help and he left, do you know

where he was going?

A He was angry at me because I was following x x x

him, looking for him. I was just worried he might be
overly drunk and he would beat me again.

A Outside perhaps to drink more.

Q You said that he was yelling at you, what else, did

he do to you if any?
A He was nagging at me at that time and I just ignore
him because I want to avoid trouble for fear that he
will beat me again. Perhaps he was disappointed
because I just ignore him of his provocation and he
switch off the light and I said to him, 'why did you
switch off the light when the children were there.' At
that time I was also attending to my children who
were doing their assignments. He was angry with me
for not answering his challenge, so he went to the
kitchen and [got] a bolo and cut the antenna wire to
stop me from watching television.

Q When he left what did you do in that particular

time?
A I packed all his clothes.
Q What was your reason in packing his clothes?
A I wanted him to leave us.
Q During this time, where were your children, what
were their reactions?
A After a couple of hours, he went back again and he
got angry with me for packing his clothes, then he
dragged me again of the bedroom holding my neck.

Q What did he do with the bolo?

A He cut the antenna wire to keep me from watching
T.V.

Q You said that when Ben came back to your house,

he dragged you? How did he drag you?
COURT INTERPRETER:

Q What else happened after he cut the wire?

A He switch off the light and the children were
shouting because they were scared and he was
already holding the bolo.

The witness demonstrated to the Court by

using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.

Q How do you described this bolo?

ATTY. TABUCANON:
A 1 1/2 feet.
Q Where did he bring you?
Q What was the bolo used for usually?
A For chopping meat.

EVIDENCE

A Outside the bedroom and he wanted to get

something and then he kept on shouting at me that

AGUSTIN, E.P. | 149

'you might as well be killed so there will be nobody to

nag me.'
Q So you said that he dragged you towards the
drawer?
A Yes, sir.

A My children were already asleep.

Q You mean they were inside the room?
A Yes, sir.

Q What is there in the drawer?

Q You said that he dropped the blade, for the record

will you please describe this blade about 3 inches
long, how does it look like?

A I was aware that it was a gun.

A Three (3) inches long and 1/2 inch wide.

COURT INTERPRETER:

Q Is it a flexible blade?

(At this juncture the witness started

crying).

A It's a cutter.

ATTY. TABUCANON:

Q How do you describe the blade, is it sharp both

edges?

Q Were you actually brought to the drawer?

A Yes, because he once used it to me.

A Yes, sir.

Q How did he do it?

Q What happened when you were brought to that

drawer?

A He wanted to cut my throat.

A He dragged me towards the drawer and he was

about to open the drawer but he could not open it
because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it
was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very
moment everything on my mind was to pity on
myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying
intensely).
xxx

xxx

xxx

ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your
room?
A Outside.
Q In what part of the house?

Q With the same blade?

A Yes, sir, that was the object used when he
intimidate me." 38
In addition, Dra. Natividad Dayan was called by the RTC to
testify as an expert witness to assist it in understanding the
psyche of a battered person. She had met with Marivic Genosa
for five sessions totaling about seventeen hours. Based on their
talks, the former briefly related the latter's ordeal to the court a
quo as follows:
"Q: What can you say, that you found Marivic as a
battered wife? Could you in layman's term describe to
this Court what her life was like as said to you?
A: What I remember happened then was it was more
than ten years, that she was suffering emotional
anguish. There were a lot of instances of abuses, to
emotional abuse, to verbal abuse and to physical
abuse. The husband had a very meager income, she
was the one who was practically the bread earner of
the family. The husband was involved in a lot of vices,
going out with barkadas, drinking, even womanizing
being involved in cockfight and going home very
angry and which will trigger a lot of physical abuse.
She also had the experience a lot of taunting from the
husband for the reason that the husband even
accused her of infidelity, the husband was saying that
the child she was carrying was not his own. So she
was very angry, she was at the same time very
depressed because she was also aware, almost like
living in purgatory or even hell when it was
happening day in and day out." 39

A Dining.
Q Where were the children during that time?

EVIDENCE

AGUSTIN, E.P. | 150

In cross-examining Dra. Dayan, the public prosecutor not merely

elicited, but wittingly or unwittingly put forward, additional
supporting evidence as shown below:
"Q In your first encounter with the appellant in this
case in 1999, where you talked to her about three
hours, what was the most relevant information did
you gather?
A The most relevant information was the tragedy that
happened. The most important information were
escalating abuses that she had experienced during
her marital life.
Q Before you met her in 1999 for three hours, we
presume that you already knew of the facts of the
case or at least you have substantial knowledge of
the facts of the case?
A I believe I had an idea of the case, but I do not
know whether I can consider them as substantial.
xxx

xxx

xxx

Q Did you gather an information from Marivic that on

the side of her husband they were fond of battering
their wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example who are the
relatives of her husband that were fond of battering
their wives?
A What I remember that there were brothers of her
husband who are also battering their wives.
Q Did she not inform you that there was an instance
that she stayed in a hotel in Ormoc where her
husband followed her and battered [her] several
times in that room?
A She told me about that.
Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she
was battered in that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no
problem about being battered, it really happened.
Q Being an expert witness, our jurisprudence is not
complete on saying this matter. I think that is the first

EVIDENCE

time that we have this in the Philippines, what is your

opinion?
A Sir, my opinion is, she is really a battered wife and
in this kind happened, it was really a self-defense. I
also believe that there had been provocation and I
also believe that she became a disordered person.
She had to suffer anxiety reaction because of all the
battering that happened and so she became an
abnormal person who had lost she's not during the
time and that is why it happened because of all the
physical battering, emotional battering, all the
psychological abuses that she had experienced from
her husband.
Q I do believe that she is a battered wife. Was she
extremely battered?
A Sir, it is an extreme form of battering. Yes.40
Parenthetically, the credibility of appellant was demonstrated as
follows:
"Q And you also said that you administered [the]
objective personality test, what x x x [is this] all
about?
A The objective personality test is the Millon Clinical
Multiaxial Inventory. The purpose of that test is to
find out about the lying prone[ne]ss of the person.
Q What do you mean by that?
A Meaning, am I dealing with a client who is telling
me the truth, or is she someone who can exaggerate
or x x x [will] tell a lie[?]
Q And what did you discover on the basis of this
objective personality test?
A She was a person who passed the honesty test.
Meaning she is a person that I can trust. That the
data that I'm gathering from her are the truth."41
The other expert witness presented by the defense, Dr. Alfredo
Pajarillo, testified on his Psychiatric Report,42 which was based
on his interview and examination of Marivic Genosa. The Report
said that during the first three years of her marriage to Ben,
everything looked good -- the atmosphere was fine, normal and
happy -- until "Ben started to be attracted to other girls and was
also enticed in[to] gambling[,] especially cockfighting. x x x. At
the same time Ben was often joining his barkada in drinking
sprees."
The drinking sprees of Ben greatly changed the attitude he
showed toward his family, particularly to his wife. The Report
continued: "At first, it was verbal and emotional abuses but as
time passed, he became physically abusive. Marivic claimed that
the viciousness of her husband was progressive every time he
got drunk. It was a painful ordeal Marivic had to anticipate
whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and
practically more than eight years, she was battered and
maltreated relentlessly and mercilessly by her husband
whenever he was drunk."

AGUSTIN, E.P. | 151

Marivic sought the help of her mother-in-law, but her efforts

were in vain. Further quoting from the Report, "[s]he also
sought the advice and help of close relatives and well-meaning
friends in spite of her feeling ashamed of what was happening to
her. But incessant battering became more and more frequent
and more severe. x x x."43
From the totality of evidence presented, there is indeed no
doubt in the Court's mind that Appellant Marivic Genosa was a
severely abused person.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the
abused woman, her state of mind metamorphoses. In
determining her state of mind, we cannot rely merely on the
judgment of an ordinary, reasonable person who is evaluating
the events immediately surrounding the incident. A Canadian
court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law
partners are both relevant and necessary. "How can the mental
state of the appellant be appreciated without it? The average
member of the public may ask: Why would a woman put up with
this kind of treatment? Why should she continue to live with
such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman
to pack her bags and go. Where is her self-respect? Why does
she not cut loose and make a new life for herself? Such is the
reaction of the average person confronted with the so-called
'battered wife syndrome.'"44
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable
person. What goes on in the mind of a person who has been
subjected to repeated, severe beatings may not be consistent
with -- nay, comprehensible to -- those who have not been
through a similar experience. Expert opinion is essential to clarify
and refute common myths and misconceptions about battered
women.45
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in
the United States and the United Kingdom on the treatment and
prosecution of cases, in which a battered woman is charged with
the killing of her violent partner. The psychologist explains that
the cyclical nature of the violence inflicted upon the battered
woman immobilizes the latter's "ability to act decisively in her
own interests, making her feel trapped in the relationship with
no means of escape."46 In her years of research, Dr. Walker
found that "the abuse often escalates at the point of separation
and battered women are in greater danger of dying then."47
Corroborating these research findings, Dra. Dayan said that "the
battered woman usually has a very low opinion of herself. She
has x x x self-defeating and self-sacrificing characteristics. x x x
[W]hen the violence would happen, they usually think that they
provoke[d] it, that they were the one[s] who precipitated the
violence[; that] they provoke[d] their spouse to be physically,
verbally and even sexually abusive to them."48
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner -poverty, self-blame and guilt arising from the latter's belief that
she provoked the violence, that she has an obligation to keep
the family intact at all cost for the sake of their children, and
that she is the only hope for her spouse to change.49

EVIDENCE

The testimony of another expert witness, Dr. Pajarillo, is also

helpful. He had previously testified in suits involving violent
family relations, having evaluated "probably ten to twenty
thousand" violent family disputes within the Armed Forces of the
Philippines, wherein such cases abounded. As a result of his
experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City. As
such, he got involved in about forty (40) cases of severe
domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of consciousness.50
Dr. Pajarillo explained that "overwhelming brutality, trauma"
could result in posttraumatic stress disorder, a form of "anxiety
neurosis or neurologic anxietism."51 After being repeatedly and
severely abused, battered persons "may believe that they are
essentially helpless, lacking power to change their situation. x x
x [A]cute battering incidents can have the effect of stimulating
the development of coping responses to the trauma at the
expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim
ceases to believe that anything she can do will have a
predictable positive effect."52
A study53 conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has
control over a situation, but believes that she does not, she will
be more likely to respond to that situation with coping responses
rather than trying to escape." He said that it was the cognitive
aspect -- the individual's thoughts -- that proved all-important.
He referred to this phenomenon as "learned helplessness."
"[T]he truth or facts of a situation turn out to be less important
than the individual's set of beliefs or perceptions concerning the
situation. Battered women don't attempt to leave the battering
situation, even when it may seem to outsiders that escape is
possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their
terrible circumstances."54
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also
believes that he is capable of killing her, and that there is no
escape.55 Battered women feel unsafe, suffer from pervasive
anxiety, and usually fail to leave the relationship.56 Unless a
shelter is available, she stays with her husband, not only
because she typically lacks a means of self-support, but also
because she fears that if she leaves she would be found and
hurt even more.57
In the instant case, we meticulously scoured the records for
specific evidence establishing that appellant, due to the repeated
abuse she had suffered from her spouse over a long period of
time, became afflicted with the battered woman syndrome. We,
however, failed to find sufficient evidence that would support
such a conclusion. More specifically, we failed to find ample
evidence that would confirm the presence of the essential
characteristics of BWS.
The defense fell short of proving all three phases of the "cycle of
violence" supposedly characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute battering incidents.
In relating to the court a quo how the fatal incident that led to
the death of Ben started, Marivic perfectly described the tensionbuilding phase of the cycle. She was able to explain in adequate
detail the typical characteristics of this stage. However, that
single incident does not prove the existence of the syndrome. In
other words, she failed to prove that in at least another
battering episode in the past, she had gone through a similar
pattern.

AGUSTIN, E.P. | 152

How did the tension between the partners usually arise or build
up prior to acute battering? How did Marivic normally respond to
Ben's relatively minor abuses? What means did she employ to
try to prevent the situation from developing into the next (more
violent) stage?
Neither did appellant proffer sufficient evidence in regard to the
third phase of the cycle. She simply mentioned that she would
usually run away to her mother's or father's house;58 that Ben
would seek her out, ask for her forgiveness and promise to
change; and that believing his words, she would return to their
common abode.
Did she ever feel that she provoked the violent incidents
between her and her spouse? Did she believe that she was the
only hope for Ben to reform? And that she was the sole support
of his emotional stability and well-being? Conversely, how
dependent was she on him? Did she feel helpless and trapped in
their relationship? Did both of them regard death as preferable
to separation?
In sum, the defense failed to elicit from appellant herself her

factual experiences and thoughts that would clearly and fully

demonstrate the essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert
witnesses for the defense. Indeed, they were able to explain
fully, albeit merely theoretically and scientifically, how the
personality of the battered woman usually evolved or
deteriorated as a result of repeated and severe beatings inflicted
upon her by her partner or spouse. They corroborated each
other's testimonies, which were culled from their numerous
studies of hundreds of actual cases. However, they failed to

present in court the factual experiences and thoughts that

appellant had related to them -- if at all -- based on which they
concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a
modifying circumstance must be proven in order to be
appreciated. To repeat, the records lack supporting evidence
that would establish all the essentials of the battered woman
syndrome as manifested specifically in the case of the Genosas.

BWS as Self-Defense
In any event, the existence of the syndrome in a relationship
does not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context
of self-defense.59
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of
the battered woman at the time of the offense60 -- she must
have actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to save her life.
Settled in our jurisprudence, however, is the rule that the one
who resorts to self-defense must face a real threat on one's life;
and the peril sought to be avoided must be imminent and actual,
not merely imaginary.61 Thus, the Revised Penal Code provides
the following requisites and effect of self-defense:62
"Art. 11. Justifying circumstances. -- The following do
not incur any criminal liability:

EVIDENCE

"1. Anyone who acts in defense of his person or

rights, provided that the following circumstances
concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed
to prevent or repel it;

Third. Lack of sufficient provocation on the part of the

person defending himself."

Unlawful aggression is the most essential element of selfdefense.63 It presupposes actual, sudden and unexpected attack
-- or an imminent danger thereof -- on the life or safety of a
person.64 In the present case, however, according to the
testimony of Marivic herself, there was a sufficient time interval
between the unlawful aggression of Ben and her fatal attack
upon him. She had already been able to withdraw from his
violent behavior and escape to their children's bedroom. During
that time, he apparently ceased his attack and went to bed. The
reality or even the imminence of the danger he posed had ended
altogether. He was no longer in a position that presented an
actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their
children's bedroom -- and based on past violent incidents, there
was a great probability that he would still have pursued her and
inflicted graver harm -- then, the imminence of the real threat
upon her life would not have ceased yet. Where the brutalized
person is already suffering from BWS, further evidence of actual
physical assault at the time of the killing is not required.
Incidents of domestic battery usually have a predictable pattern.
To require the battered person to await an obvious, deadly
attack before she can defend her life "would amount to
sentencing her to 'murder by installment.'"65 Still, impending
danger (based on the conduct of the victim in previous battering
episodes) prior to the defendant's use of deadly force must be
shown. Threatening behavior or communication can satisfy the
required imminence of danger.66 Considering such circumstances
and the existence of BWS, self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous,
does not warrant self-defense.67 In the absence of such
aggression, there can be no self-defense -- complete or
incomplete -- on the part of the victim.68 Thus, Marivic's killing of
Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise
any other modifying circumstances that would alter her penalty,
we deem it proper to evaluate and appreciate in her favor
circumstances that mitigate her criminal liability. It is a hornbook
doctrine that an appeal in a criminal case opens it wholly for
review on any issue, including that which has not been raised by
the parties.69
From several psychological tests she had administered to
Marivic, Dra. Dayan, in her Psychological Evaluation Report
dated November 29, 2000, opined as follows:
"This is a classic case of a Battered Woman
Syndrome.
The
repeated
battering
Marivic
experienced with her husband constitutes a form of
[cumulative] provocation which broke down her

AGUSTIN, E.P. | 153

psychological resistance and natural self-control. It is

very clear that she developed heightened sensitivity
to sight of impending danger her husband posed
continuously. Marivic truly experienced at the hands
of her abuser husband a state of psychological
paralysis which can only be ended by an act of
violence on her part." 70
Dr. Pajarillo corroborates the findings of Dra. Dayan. He
explained that the effect of "repetitious pain taking, repetitious
battering, [and] repetitious maltreatment" as well as the severity
and the prolonged administration of the battering is
posttraumatic stress disorder.71 Expounding thereon, he said:
"Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious
battering. Second, the severity of the battering. Third,
the prolonged administration of battering or the
prolonged commission of the battering and the
psychological and constitutional stamina of the victim
and another one is the public and social support
available to the victim. If nobody is interceding, the
more she will go to that disorder....
xxx

xxx

xxx

Q You referred a while ago to severity. What are the

qualifications in terms of severity of the postraumatic
stress disorder, Dr. Pajarillo?
A The severity is the most severe continuously to
trig[g]er this post[t]raumatic stress disorder is injury
to the head, banging of the head like that. It is
usually the very very severe stimulus that precipitate
this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the
face, strangulating the individual, suffocating the
individual, and boxing the individual. In this situation
therefore, the victim is heightened to painful stimulus,
like for example she is pregnant, she is very
susceptible because the woman will not only protect
herself, she is also to protect the fetus. So the anxiety
is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr.
Witness, how do you classify?
A We classify the disorder as [acute], or chronic or
delayed or [a]typical.
Q Can you please describe this pre[-]classification you
called delayed or [atypical]?
A The acute is the one that usually require only one
battering and the individual will manifest now a
severe emotional instability, higher irritability
remorse, restlessness, and fear and probably in most
[acute] cases the first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering,
repetitious maltreatment, any prolonged, it is longer

EVIDENCE

than six (6) months. The [acute] is only the first day
to six (6) months. After this six (6) months you
become chronic. It is stated in the book specifically
that after six (6) months is chronic. The [a]typical one
is the repetitious battering but the individual who is
abnormal and then become normal. This is how you
get neurosis from neurotic personality of these cases
of post[t]raumatic stress disorder." 72
Answering the questions propounded by the trial judge, the
expert witness clarified further:
"Q But just the same[,] neurosis especially on
battered woman syndrome x x x affects x x x his or
her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her
rationality?
A Of course obfuscated."73
In sum, the cyclical nature and the severity of the violence
inflicted upon appellant resulted in "cumulative provocation
which broke down her psychological resistance and natural selfcontrol,"
"psychological
paralysis,"
and
"difficulty
in
concentrating or impairment of memory."

Based on the explanations of the expert witnesses, such

manifestations were analogous to an illness that diminished the
exercise by appellant of her will power without, however,
depriving her of consciousness of her acts. There was, thus, a

resulting diminution of her freedom of action, intelligence or

intent. Pursuant to paragraphs 974 and 1075 of Article 13 of the
Revised Penal Code, this circumstance should be taken in her
favor and considered as a mitigating factor. 76
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to
have naturally produced passion and obfuscation. It has been
held that this state of mind is present when a crime is committed
as a result of an uncontrollable burst of passion provoked by
prior unjust or improper acts or by a legitimate stimulus so
powerful as to overcome reason.77 To appreciate this
circumstance, the following requisites should concur: (1) there is
an act, both unlawful and sufficient to produce such a condition
of mind; and (2) this act is not far removed from the commission
of the crime by a considerable length of time, during which the
accused might recover her normal equanimity.78
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Marivic. He had
further threatened to kill her while dragging her by the neck
towards a cabinet in which he had kept a gun. It should also be
recalled that she was eight months pregnant at the time. The
attempt on her life was likewise on that of her fetus.79 His
abusive and violent acts, an aggression which was directed at
the lives of both Marivic and her unborn child, naturally
produced passion and obfuscation overcoming her reason. Even
though she was able to retreat to a separate room, her
emotional and mental state continued. According to her, she felt
her blood pressure rise; she was filled with feelings of self-pity
and of fear that she and her baby were about to die. In a fit of
indignation, she pried open the cabinet drawer where Ben kept a
gun, then she took the weapon and used it to shoot him.

AGUSTIN, E.P. | 154

The confluence of these events brings us to the conclusion that

there was no considerable period of time within which Marivic
could have recovered her normal equanimity. Helpful is Dr.
Pajarillo's testimony80 that with "neurotic anxiety" -- a
psychological effect on a victim of "overwhelming brutality [or]
trauma" -- the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at the time. She
cannot control "re-experiencing the whole thing, the most
vicious and the trauma that she suffered." She thinks "of nothing
but the suffering." Such reliving which is beyond the control of a
person under similar circumstances, must have been what
Marivic experienced during the brief time interval and prevented
her from recovering her normal equanimity. Accordingly, she
should further be credited with the mitigating circumstance of
passion and obfuscation.
It should be clarified that these two circumstances -psychological paralysis as well as passion and obfuscation -- did
not arise from the same set of facts.

The witness demonstrated to the Court by

using her right hand flexed forcibly in her
front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get
something and then he kept on shouting at me that
'you might as well be killed so there will be nobody to
nag me'
Q So you said that he dragged you towards the
drawer?

On the one hand, the first circumstance arose from the cyclical
nature and the severity of the battery inflicted by the battererspouse upon appellant. That is, the repeated beatings over a
period of time resulted in her psychological paralysis, which was
analogous to an illness diminishing the exercise of her will power
without depriving her of consciousness of her acts.

A Yes, sir.

The second circumstance, on the other hand, resulted from the

violent aggression he had inflicted on her prior to the killing.
That the incident occurred when she was eight months pregnant
with their child was deemed by her as an attempt not only on
her life, but likewise on that of their unborn child. Such
perception naturally produced passion and obfuscation on her
part.

COURT INTERPRETER

Second Legal Issue:

Q Were you actually brought to the drawer?

Treachery

A Yes, sir.

There is treachery when one commits any of the crimes against

persons by employing means, methods or forms in the execution
thereof without risk to oneself arising from the defense that the
offended party might make.81 In order to qualify an act as
treacherous, the circumstances invoked must be proven as
indubitably as the killing itself; they cannot be deduced from
mere inferences, or conjectures, which have no place in the
appreciation of evidence.82 Because of the gravity of the
resulting offense, treachery must be proved as conclusively as
the killing itself.83

Q What happened when you were brought to that

drawer?

Ruling that treachery was present in the instant case, the trial
court imposed the penalty of death upon appellant. It inferred
this qualifying circumstances merely from the fact that the
lifeless body of Ben had been found lying in bed with an "open,
depressed, circular" fracture located at the back of his head. As
to exactly how and when he had been fatally attacked, however,
the prosecution failed to establish indubitably. Only the following
testimony of appellant leads us to the events surrounding his
death:

Q What is there in the drawer?

A I was aware that it was a gun.

(At this juncture the witness started

crying)
ATTY. TABUCANON:

A He dragged me towards the drawer and he was

about to open the drawer but he could not open it
because he did not have the key then he pulled his
wallet which contained a blade about 3 inches long
and I was aware that he was going to kill me and I
smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it
was a pipe about that long, and when he was about
to pick-up the wallet and the blade, I smashed him
then I ran to the other room, and on that very
moment everything on my mind was to pity on
myself, then the feeling I had on that very moment
was the same when I was admitted in PHILPHOS
Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying
intensely).

"Q You said that when Ben came back to your house,
he dragged you? How did he drag you?
COURT:

EVIDENCE

xxx

xxx

xxx

AGUSTIN, E.P. | 155

Q You said that he dropped the blade, for the record

will you please describe this blade about 3 inches
long, how does it look like?

A Considering all the physical sufferings that I've been

through with him, I took pity on myself and I felt I
was about to die also because of my blood pressure
and the baby, so I got that gun and I shot him.

A Three (3) inches long and inch wide.

COURT

Q It is a flexible blade?

/to Atty. Tabucanon

A It's a cutter.

Q You shot him?

Q How do you describe the blade, is it sharp both

edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?

A Yes, I distorted the drawer."84

The above testimony is insufficient to establish the presence of
treachery. There is no showing of the victim's position relative to
appellant's at the time of the shooting. Besides, equally
axiomatic is the rule that when a killing is preceded by an
argument or a quarrel, treachery cannot be appreciated as a
qualifying circumstance, because the deceased may be said to
have been forewarned and to have anticipated aggression from
the assailant.85

A Yes, because I smashed him.

Moreover, in order to appreciate alevosia, the method of assault

adopted by the aggressor must have been consciously and
deliberately chosen for the specific purpose of accomplishing the
unlawful act without risk from any defense that might be put up
by the party attacked.86 There is no showing, though, that the
present appellant intentionally chose a specific means of
successfully attacking her husband without any risk to herself
from any retaliatory act that he might make. To the contrary, it
appears that the thought of using the gun occurred to her only
at about the same moment when she decided to kill her
batterer-spouse. In the absence of any convincing proof that she
consciously and deliberately employed the method by which she
committed the crime in order to ensure its execution, this Court
resolves the doubt in her favor.87

Q What happened?

Proper Penalty

A Ben tried to pick-up the wallet and the blade, I

pick-up the pipe and I smashed him and I ran to the
other room.

The penalty for parricide imposed by Article 246 of the Revised

Penal Code is reclusion perpetua to death. Since two mitigating
circumstances and no aggravating circumstance have been
found to have attended the commission of the offense, the
penalty shall be lowered by one (1) degree, pursuant to Article
64 of paragraph 588 of the same Code.89 The penalty of reclusion
temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in
reducing the penalty by one degree, and no other modifying
circumstances were shown to have attended the commission of
the offense.90 Under the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of that which
is next lower in degree -- prision mayor -- and the maximum
shall be within the range of the medium period of reclusion
temporal.

A Yes, sir, that was the object used when he

intimidate me.
xxx

xxx

xxx

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it
correct?

Q What else happened?

A When I was in the other room, I felt the same thing
like what happened before when I was admitted in
PHILPHOS Clinic, I was about to vomit. I know my
blood pressure was raised. I was frightened I was
about to die because of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting
the pipe and smashed him, the witness at
the same time pointed at the back of her
neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else
happened?

EVIDENCE

Considering all the circumstances of the instant case, we deem it

just and proper to impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1) day in prison as
minimum; to reclusion temporal in its medium period, or 14
years 8 months and 1 day as maximum. Noting that appellant
has already served the minimum period, she may now apply for
and be released from detention on parole.91

Epilogue

AGUSTIN, E.P. | 156

Being a novel concept in our jurisprudence, the battered woman

syndrome was neither easy nor simple to analyze and recognize
vis--vis the given set of facts in the present case. The Court
agonized on how to apply the theory as a modern-day reality. It
took great effort beyond the normal manner in which decisions
are made -- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at
studies conducted here and abroad in order to understand the
intricacies of the syndrome and the distinct personality of the
chronically abused person. Certainly, the Court has learned
much. And definitely, the solicitor general and appellant's
counsel, Atty. Katrina Legarda, have helped it in such learning
process.
While our hearts empathize with recurrently battered persons,
we can only work within the limits of law, jurisprudence and
given facts. We cannot make or invent them. Neither can we
amend the Revised Penal Code. Only Congress, in its wisdom,
may do so.
The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now
sum up our main points. First, each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes between the appellant and her intimate
partner. Second, the final acute battering episode preceding the
killing of the batterer must have produced in the battered
person's mind an actual fear of an imminent harm from her
batterer and an honest belief that she needed to use force in
order to save her life. Third, at the time of the killing, the
batterer must have posed probable -- not necessarily immediate
and actual -- grave harm to the accused, based on the history of
violence perpetrated by the former against the latter. Taken
altogether, these circumstances could satisfy the requisites of
self-defense. Under the existing facts of the present case,
however, not all of these elements were duly established.
WHEREFORE, the conviction of Appellant Marivic Genosa for
parricide is hereby AFFIRMED. However, there being two (2)
mitigating circumstances and no aggravating circumstance
attending her commission of the offense, her penalty is
REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal
as maximum.
Inasmuch as appellant has been detained for more than the
minimum penalty hereby imposed upon her, the director of the
Bureau of Corrections may immediately RELEASE her from
custody upon due determination that she is eligible for parole,
unless she is being held for some other lawful cause. Costs de
oficio.
SO ORDERED.

Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and

Tinga,
JJ.,
concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ.,
join

Justice

Santiago

in

Vitug
and
Quisumbing
JJ.,
in
Ynares-Santiago J., see dissenting opinion.

EVIDENCE

her
the

dissent.
result.

AGUSTIN, E.P. | 157

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 123137

October 17, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and
JANUARIO DOSDOS, accused-appellants.
QUISUMBING, J.:
On appeal is the decision dated May 17, 1995, of the Regional
Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU30350 for murder and CBU-33664 for illegal possession of
firearms, finding appellants Albert Abriol, Macario Astellero, and
Januario Dosdos guilty beyond reasonable doubt of murder and
violation of Presidential Decree No. 1866 on Illegal Possession of
Firearms. Its decretal portion reads:
WHEREFORE, judgment is hereby rendered:
In Criminal Case No. CBU-30350 for Murder, the
Court finds accused Albert Abriol, Macario Astellero
and Januario Dosdos, GUILTY of murder beyond
reasonable doubt and each is hereby sentenced to
reclusion perpetua, with the accessory penalties
provided by law; to indemnify the heirs of deceased
Alejandro Flores the sum of P50,000.00; actual
damages of P30,000.00, representing a reasonable
amount for the embalming, vigil, wake, and burial
expenses; P30,000.00 for attorney's fees; and to pay
the costs.
For insufficiency of evidence, accused Gaudioso
Navales is hereby ACQUITTED with costs de officio.
In Criminal Case No. CBU-33664 for Illegal Possession
of Firearms, accused Albert Abriol, Macario Astellero
and Januario Dosdos, are hereby sentenced to suffer
an indeterminate penalty of 14 years, 8 months and 1
day to 17 years and 4 months and to pay the costs.
The .38 caliber revolver, SN P08445 and the two .45
caliber pistols with SN PGO 13506 and SN 52469, are
hereby confiscated and forfeited in favor of the
Government and accordingly, the Clerk of Court of
this Branch is directed to turn over the said firearms
to the Chief of Police, Cebu City, or to the Firearms
and Explosives Office (FEO) of the PNP Region 7,
upon proper receipt.
The Cebu City Chief of Police is directed to release
immediately upon receipt hereof, the person of
Gaudioso Navales, unless there be any other valid
reason for his continued detention.
SO ORDERED.1
This judgment was the culmination of proceedings beginning
with the Amended Information dated September 6, 1993,

EVIDENCE

docketed as Criminal Case No. CBU-30350, wherein appellants

PO2 Albert Abriol of the Philippine National Police (PNP), Macario
Astellero, Januario Dosdos, and PNP P/Chief Inspector Gaudioso
Navales were charged with murder allegedly committed as
follows:
That on or about the 5th day of June, 1993, at about
11:50 P.M., in the City of Cebu, Philippines and within
the jurisdiction of this Honorable Court, the said
accused, armed with handguns, conniving and
confederating together and mutually helping one
another, with treachery and evident premeditation,
with deliberate intent, with intent to kill, did then and
there shot one Alejandro Flores alias Alex with the
said handguns, hitting him on the different parts of
his body, thereby inflicting upon him the following
physical injuries:
CARDIO RESPIRATORY ARREST DUE TO
SHOCK AND HEMORRHAGE SECONDARY
TO MULTIPLE GUNSHOT WOUNDS TO THE
TRUNK AND THE HEAD
as a consequence of which the said Alejandro Flores
alias Alex died later.
CONTRARY TO LAW.2
At the time of the incident, appellant Abriol, a policeman
previously detailed as a jailguard at the Bagong Buhay
Rehabilitation Center (BBRC) in Cebu City, was himself a
detention prisoner in BBRC. He was charged with murder, a nonbailable offense, in Criminal Case No. CBU-28843 before the RTC
of Cebu City, Branch 14.3
Appellant Astellero was a former prisoner at BBRC, who had
served time for grave threats.4 The warden then, Chief Inspector
Navales,5 employed him as his personal driver and general
factotum.6 Navales was found guilty of grave misconduct in
Administrative Case No. 01-93 for allowing Abriol and Dosdos
out of BBRC on the day of the murder and was summarily
dismissed from the police force.
Dosdos had been convicted by the RTC of Cebu City, Branch 10,
of highway robbery in Criminal Case No. CBU-18152 but Navales
failed to act on the mittimus ordering Dosdos' transfer to the
national penitentiary, and he remained in BBRC.7 Abriol and
Dosdos enjoyed special privileges at BBRC as the warden's
errand boys8 or "trustees."
The victim, Alejandro Flores alias "Alex," was a former
policeman. He was dismissed from the PNP in August 1992 after
testing positive for prohibited drugs.9
Abriol, Astellero, and Dosdos were also indicted for illegal
possession of firearms in Criminal Case No. CBU-33664. The
charge sheet reads:
That on or about the 5th day of June 1993 at about
11:48 P.M. in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said
accused, conniving and confederating together and
mutually helping one another, with deliberate intent,
did then and there keep under their control and
possession the following:

AGUSTIN, E.P. | 158

1. one (1) .38 cal. revolver (Armscor) with SN P08445

with six empty shells;

magazine and another .45 caliber pistol with serial number

52469 loaded with five (5) unfired bullets.12

2. one (1) .45 cal. pistol (Colt) with SN P6013506 with

9 live ammunitions (sic);

While the patrol cars were chasing the "Jiffy," another police
team proceeded to the crime scene in response to the alarm.
This team from Police Station No. 3 in San Nicolas, Cebu City
rushed the victim to the Cebu City Medical Center, where he was
pronounced dead on arrival. Meanwhile, PO3 Celso Seville, Jr., a
homicide investigator of Police Station No. 3 found four (4) .45
caliber shells some four (4) feet away from the victim's body,
and two (2) deformed slugs where the victim had lain, and
submitted them to the Region 7 PNP Crime Laboratory for
ballistics testing.13

3. one (1) .45 cal. Pistol (Colt) with SN 52469 with

five live ammunition.
without first obtaining a permit or license therefor
from competent authority.
CONTRARY TO LAW.10
When arraigned, all the accused pleaded not guilty to both
charges. Since the indictments arose from the same incident, the
cases were jointly tried.

Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime

Laboratory autopsied the victim's body. He found that the cause
of the victim's death was "cardiorespiratory arrest due to shock
and hemorrhage secondary to multiple gunshot wounds to the
trunk and head.''14 Dr. Diola recovered a .38 caliber slug from
the corpse, which he later submitted for ballistics examination.

The facts of the case are as follows:

At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a
radio news reporter then aboard his jeep, had just reached the
ABS-CBN compound in P. del Rosario Street, Cebu City, when he
heard a couple of gunshots. He looked around and saw a man
running unsteadily towards the intersection of P. del Rosario
Street and Jones Avenue (Osmea Boulevard). The man was
shouting "Tabang, tabang!" ("Help! Help!"). Sta. Cruz, Jr., saw a
red "Jiffy" make a U-turn near the gate of the city central school
that nearly ran over the man shouting for help. The man turned
back and staggered towards the direction of Bacalso Avenue and
Urgello Private Road, but after a few meters on wobbly legs, he
stopped and collapsed.
Meanwhile, the "Jiffy" followed. It stopped beside the fallen
figure and a tall, thin man alighted. The man fired several shots
at the prostrate figure. He boarded the "Jiffy" which sped away
towards Leon Kilat Street. Romeo Sta. Cruz, Jr., moved his jeep
and focused its headlights on the victim.
In the meantime, PO3 Alexander Rustela was at a vulcanizing
shop near the intersection of Bacalso Avenue and Leon Kilat
Street, when he heard gunshots coming from the north. He ran
towards where the gunshots came and saw people scampering.
All of a sudden, the "Jiffy" with three persons on board sped
past him and made an abrupt left turn at Leon Kilat Street.
Rustela immediately radioed for assistance. Minutes later, patrol
car No. 201 with PO2 Herbert Ramos on board arrived. Rustela
boarded the car and they followed the "Jiffy," while broadcasting
an alarm to police headquarters and other mobile patrol cars.
On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo
Abellana were cruising aboard patrol car No. 208, when they
heard a radio message that the suspects in the shooting incident
were aboard a "Jiffy." As they turned left at Leon Kilat Street,
they saw the "Jiffy" heading towards Carbon Market. They
pursued the "Jiffy" which stopped in front of the Don Bosco
Building near BBRC, when police car No. 205, with PO Eugenio
Badrinas and PO2 Gerald Cue aboard, blocked the "Jiffy's" path.
Cue fired a warning shot and three persons alighted. The driver
was appellant Astellero, whom Cue had recognized and seen
before at the BBRC. Abrigana and Cue approached the trio who
stood a meter away from the "Jiffy." SPO1 Abrigana frisked
Abriol and seized from his waist a .38 caliber revolver with serial
number PO8485 with six (6) empty shells in its cylinder.11 Under
Abriol's seat, the police also found a .45 caliber pistol bearing
serial number PGO 13506 with nine (9) live rounds in its

EVIDENCE

SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory,

reported the following:
1. Fired cartridge cases marked "JA-1" to "JA-3"
possesses similar individual characteristics markings
with the test cartridge cases fired from cal .45 with
SN: PGO13506;
2. Fired cartridge cases marked "JA-4" and "E-69-6"
possesses similar individual characteristics markings
with the test cartridge cases fired from cal .45 pistol
with SN: 52469;
3. Fired bullet metal jacket marked "JA-5" possesses
similar individual characteristics markings with test
bullets fired from cal .45 pistol with SN: PGO13506;
4. Fired cartridge cases marked "E-45-1 " to "E-45-6"
possesses similar individual characteristics markings
with the test cartridge cases fired from cal .38 Rev.
SN: P8445;
5. Fired bullets marked as "JA-6" and "LD" possesses
similar individual characteristic markings with the test
bullets fired from cal .38 Rev. SN: P8445.15
The following day, appellants underwent a paraffin test. The
hands of appellants were found positive for gunpowder residues.
A chemistry test on the firearms showed that the three
handguns were also positive. Inspector Myrna Areola, Chief of
the Chemistry Section of the PNP Region 7 Crime Laboratory,
stated in her testimony that the firearms had been fired,16 and
that appellants had fired the guns within a period of seventy-two
(72) hours prior to the examination.
The widow and relatives of the victim testified on the possible
motive behind the killing. They claimed the victim, a confessed
drug user, may have been "rubbed out" on the orders of Navales
for failure to remit P31,000 as proceeds from pushing prohibited
drugs. After failing to deliver the drug money to Navales, for
whom he was repeatedly pushing drugs, the victim went into
hiding, but later returned to Cebu City because he missed his
family.17

AGUSTIN, E.P. | 159

Appellants deny the accusations. Abriol averred that he and

Dosdos were among the several "trustees" at BBRC assigned to
work in the kitchen. Appellant Astellero, who was the warden's
driver, was also in charge of marketing for the prisoners' food.
On the day of the incident, Astellero realized that there was no
money for the next day's marketing so he asked Abriol to
accompany him to the house of Navales, but since he was not
in, they returned to BBRC and saw Navales an hour later. After
they received the money from Navales' niece on their way back
to BBRC, Dosdos heard gunshots. Abriol ordered Astellero, who
was driving, to turn back. Then Abriol claimed he saw a tall, slim
man alight from a "Jiffy" and shoot at a prone figure on the
ground. Seconds later, the gunman returned to the "Jiffy," which
sped off. Abriol said he ordered Astellero to chase that "Jiffy" but
it had too much of a headstart and they lost sight of it. Abriol
ordered Astellero to proceed to BBRC. At Colon Street, they
heard gunshots behind them and the blaring siren of a police
car. They explained that since they were detention prisoners,
they had to evade meeting the police. They heard more gun
shots. Upon reaching BBRC, the gates were closed, so they
drove to the old airport. On their way back to BBRC several
police cars blocked them and arrested them. SPO4 Eleazar
Abrigana frisked him and took the .38 service revolver from his
waist.18
Abriol also testified that he surrendered his service firearm to the
BBRC Administrative Officer when he was served a warrant of
arrest for murder in Criminal Case No. CBU-28843. However, the
handgun was defective and it was returned to him for repair by
Armscor, and upon repair he handed it over to the BBRC armory.
The armorer returned it to him since there was no place to keep
it. He said that although he was a detention prisoner, he had yet
to be discharged from the service. He was assigned guard and
escort duties by the warden.19 Abriol said that on the day of the
incident he was, as a BBRC jailguard, authorized to carry his
service firearm.20 He presented a Memorandum Receipt21
authorizing him to carry the government-issued .38 revolver.22
On the witness stand, Astellero and Dosdos narrated a similar
version of the incident as did Abriol. Both vehemently denied
having any knowledge of the two .45 caliber pistols found by
PO3 Cue in the "Jiffy."23
The defense also presented Dr. Jesus P. Cerna, medico-legal
officer of the Cebu City PNP Command, to testify on the caliber
of the firearms which might have caused the gunshot wounds of
the victim. Relying on the Necropsy Report prepared by Dr.
Diola, Dr. Cerna declared that wound nos. 1 and 2, which each
measured 0.6 cm. by 0.6 cm., may have been caused by a .38
caliber firearm. As to wound nos. 3 and 4, which each measured
0.5 cm. by 0.5 cm., it was possible that a .38 handgun was
used, or one with a smaller bore. Dr. Cerna opined that a .45
pistol could not have inflicted all the foregoing wounds, as the
entry points were too small for a .45 caliber bullet. With respect
to the grazing wounds found on the victim's body, Dr. Cerna
testified that it was impossible to determine the caliber of the
firearm used.24
The trial court found appellants' version of the incident neither
convincing and credible and, as earlier stated, it believed the
prosecution's version. Petitioners' were convicted of the offenses
charged.
Hence, this appeal, with appellants assigning the following
errors:
I

EVIDENCE

THE LOWER COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANTS OF THE CRIMES OF MURDER AND ILLEGAL
POSSESSION OF FIREARMS DESPITE THE FLIMSY AND
UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.
II
THE LOWER COURT ERRED IN FINDING THE GUILT OF THE
ACCUSED-APPELLANTS OF THE CRIME OF MURDER AND
ILLEGAL POSSESSION OF FIREARMS BEYOND REASONABLE
DOUBT.
At issue is whether the prosecution's evidence, which is mainly
circumstantial, suffices to convict appellants for murder and
violation of Presidential Decree No. 1866, beyond reasonable
doubt.
A. Criminal Case No. CBU-30350
On their conviction for murder, appellants argue that the
prosecution's circumstantial evidence against them is weak,
ambiguous, and inconclusive. Specifically, appellants contend
that they should be acquitted because:

First, eyewitness Romeo Sta. Cruz, Jr., did not personally identify

them as the culprits. At no point in his testimony did eyewitness

Sta. Cruz, Jr., positively identify any of the appellants or
appellant Abriol as the gunman. Sta. Cruz, Jr. only gave a
general description of the assailants, despite attempts to make
him give a categorical identification. He admitted he found out
the name of Abriol from television and news reports and could
not identify Abriol as the one whom he saw shot the victim. The
transcript of his testimony is revealing.
Q:
Then after the Jiffy stopped in front of the
fallen victim, what happened next?
A:
I saw that there was a man who
disembarked from the Jiffy. He was a tall, thin fellow
who disembarked from the Jiffy and at the same
time, he shot the fallen victim.
Q:

How many times did he shoot the victim?

A:
I cannot count attorney but I saw him
shooting the victim.
Q:
In your affidavit, you said that the person
who disembarked from the Jiffy, whose name you
know later on as PO2 Albert Abriol, PNP, shot the
victim in the different parts of his body. If Albert
Abriol is now in the courtroom, will you please point
to him?
A:
I will know him attorney because of the TV
shows and newspapers.
COURT: (TO WITNESS)
Q:
You are referring to the name of that man
who disembarked from the Jiffy and fired several
shots at the fallen victim?

AGUSTIN, E.P. | 160

A:
Yes, I know his name Your Honor on (sic) the
news cast.
COURT: (TO WITNESS)
Q:
Alright, forget the news. The man you saw
when he alighted from the Jiffy and poured (sic)
several bullets on the fallen man, look around if he is
in the courtroom?
A:

I cannot identify Your Honor.

COURT:
Q:

But [because] what I saw is a man who is tall

and thin because it was dark.
xxx

xxx

xxx

How many persons fired a shot at the fallen

A:
I only saw that man Your Honor who alighted
from the Jiffy.
Q:

We note, however, that during cross-examination, Dr. Diola

carefully explained that a firearm's caliber is not the only basis
for determining the cause of the gunshot wound. He said:
ATTY. REMOTIQUE:
Q:
So, normally the size of .5 cm x .5 cm which
is the point of entry of gunshot wound No. 3 this may
have been caused by a firearm of lesser caliber than
caliber .38?

You cannot?

A:

Q:
man?

measuring .5 x .5 centimeters could not be caused by a caliber

.45 bullet.30 Since no firearm smaller than a .38 caliber pistol
was seized from appellants, they claim the observation of Dr.
Cerna only shows that they could not have shot the victim.

Did you see his physical features?

Only (t)his, I can only tell his height, he was

tall and his body build is thin. Tall and thin. (Emphasis

A:
Not necessarily. There is a very small
difference in the size and this does not preclude that
gunshot wound No. 3 may have also been caused by
the same firearm which caused gunshot wounds Nos.
1 and 2. There are factors which often affect the size

of the wounds at the time of the examination,

perhaps a recission (sic) of the skin in the area where
gunshot Wound No. 3 was inflicted so that gunshot
wound becomes smaller.
Q:
Did you not say that normally the point of
entry of the gunshot wounds vary with the caliber of
the firearm which caused it, so that the point of entry
caused by one firearm of a particular caliber may be
bigger than the point of entry of a gunshot wound
caused by another firearm of lesser caliber?

A:

supplied)25

Since the sole eyewitness could not identify the gunman and his
companions, the prosecution relied on circumstantial evidence
from which the trial court could draw its findings and conclusion
of culpability.26 Circumstantial evidence may be relied upon, as
in this case, when to insist on direct testimony would result in
setting felons free.

Second, appellants assert that the paraffin tests are judicially

recognized as unreliable and inconclusive. A paraffin test could

establish the presence or absence of nitrates on the hand.
However, it cannot establish that the source of the nitrates was
the discharge of firearms. Nitrates are also found in substances
other than gunpowder. A person who tests positive may have
handled one or more substances with the same positive reaction
for nitrates such as explosives, fireworks, fertilizers,
pharmaceuticals, tobacco, and leguminous plants. Hence, the
presence of nitrates should only be taken as an indication of a
possibility that a person has fired a gun.27 However, it must be
borne in mind that appellants were not convicted on the sole
basis of the paraffin test.

Third, appellants claim that the autopsy report of prosecution

witness Dr. Ladislao Diola revealed serious ambiguities.28 Dr.

Jesus P. Cerna, using the same autopsy report, said that the
gunshot wounds measuring 0.6 x 0.6 centimeters could not have
been caused by a .45 caliber pistol because an entrance wound
of that size was too small for a .45 caliber bullet.29 Dr. Cerna
claimed that a wound inflicted by a .45 pistol would have an
entry point of anywhere from 1.1 to 1.3 centimeters. He
declared that it was with more reason that an entrance wound

EVIDENCE

I told you of other factors that often affect

the size of the entry of the bullet although the caliber
is one basis of the size of the wounds.
A:

xxx

xxx

xxx

Q:
Will you explain further on that because my
understanding is that .5 cm wound must perforce be
caused by a firearm of lesser caliber than that which
caused the .6 cm wound?
A:
As I said there are ranges in the size of the
wounds. The variance in the size of the wound when
it is minimal does not exclude the possibility that a
wound with a .5 cm size and .6 cm size could have
been caused by the same caliber. (Emphasis
supplied).31
The Office of the Solicitor General points out that Dr. Diola's
testimony is supported by Dr. Pedro P. Solis, a medical expert, in
his book entitled Legal Medicine. The factors which could make
the wound of entrance bigger than the caliber include: (1)
shooting in contact or near fire; (2) deformity of the bullet which
entered; (3) a bullet which might have entered the skin
sidewise; and (4) an acute angular approach of the bullet.
However, where the wound of entrance is smaller than the
firearm's caliber, the same may be attributed to the
fragmentation of the bullet before entering the skin or to a
contraction of the elastic tissues of the skin (stress supplied).32
Dr. Diola testified that a .45 caliber pistol could have caused the
grazing wounds on the victim's head and extremities.33 Dr. Cerna
corroborated Dr. Diola's findings in this regard.34 Such expert
opinions disprove appellants' theory that the .45 caliber

AGUSTIN, E.P. | 161

handguns confiscated from them could not have been used in

killing the victim.

Fourth, appellants allege that the testimony of P/Inspector

Lemuel Caser, the prosecution's ballistics expert, clearly shows

that: (1) He is ignorant about such ballistics instruments such as
the micrometer, goniometer, and pressure barrel.35 (2) He is not
conversant with "the required references concerning ballistics,"
particularly books on the subject by foreign authorities.36 (3) He
could not "scientifically determine the caliber of a bullet."37 Since
P/Inspector Caser lacked adequate training and expertise in
ballistics, they claim that his opinion that the test bullets and
cartridges matched the slugs and cartridges recovered from the
scene of the crime was not reliable. Appellants also assail Caser's
failure to take the necessary photographs to support his
findings.
An expert witness is "one who belongs to the profession or
calling to which the subject matter of the inquiry relates and
who possesses special knowledge on questions on which he
proposes to express an opinion."38 There is no definite standard
of determining the degree of skill or knowledge that a witness
must possess in order to testify as an expert. It is sufficient that
the following factors be present: (1) training and education; (2)
particular, first-hand familiarity with the facts of the case; and
(3) presentation of authorities or standards upon which his
opinion is based.39 The question of whether a witness is properly
qualified to give an expert opinion on ballistics rests with the
discretion of the trial court.40
In giving credence to Caser's expert testimony, the trial court
explained:
The defense downgraded the capability of Caser in
forensics ballistics and identifying firearms. Much
stress is given to the absence of photographs of his
examination. Nonetheless, the Court is satisfied (with)
Caser's examination, findings and conclusions with
the use of a microscope. Caser's conclusion based on
his examination deserves credit. He found the
impressions on the primer of the fired cartridges that
were test-fired to have the same characteristics with
those recovered at the scene of the crime. Whenever
a triggerman pumps a bullet (into) the body of his
victim, he releases a chunk of concrete evidence that
binds him inseparably to his act. Every gun barrel
deeply imprints on every bullet its characteristic
marking peculiar to that gun and that gun alone.
These marking might be microscopic but they are
terribly vocal in announcing their origin. And they are
as infallible for purposes of identification, as the print
left by the human finger.41
We agree with the trial court that P/Inspector Caser qualifies as
a ballistics expert. He is a licensed criminologist, trained at the
Ballistics Command and Laboratory Center in Fort Bonifacio, in
the PNP Crime Laboratory in Camp Crame, and in the National
Bureau of Investigation. He had previously testified as an expert
witness in at least twenty-seven (27) murder and homicide cases
all over the country.42 An expert witness need not present
comparative microphotographs of test bullets and cartridges to
support his findings.43 Examination under a comparison
microscope showing that the test bullet and the evidence bullet
both came from the same gun is sufficient.44 Moreover, the
ballistician conclusively found similar characteristic markings in
the evidence, test cartridges and slugs.

EVIDENCE

Fifth, appellants aver that the prosecution failed to show any

plausible motive for appellants to kill the victim. The prosecution

tried to prove that their co-accused Navales instigated them to
kill the victim because Navales had a grudge against him.
However, as Navales was acquitted, appellants insist that
Navales' acquittal should redound to their benefit since no
motive was imputed on their part.
Motive is not an essential element of a crime,45 particularly of
murder.46 It becomes relevant only where there is no positive
evidence of an accused's direct participation in the commission
of a crime.47 Stated otherwise, proof of motive becomes
essential to a conviction only where the evidence of an accused's
participation in an offense is circumstantial.48 A careful perusal of
the State's evidence reveals that the prosecution had established
sufficient motive why appellants killed the victim, independent of
any grudge which Navales may have had against the latter. At
the time of the incident, appellants Abriol and Dosdos were both
BBRC detention prisoners during Navales' term as warden. Abriol
and Dosdos were treated as highly favored "trustees" of Navales
and were never locked up. Abriol and Dosdos were even allowed
to go out of BBRC to do the marketing for the prison's kitchen.
Appellant Astellero, a former detention prisoner, was also a
recipient of Navales' favors. Navales hired Astellero as his
personal driver after the latter served his sentence. Navales and
the victim, a former BBRC jailguard, were associates in dealing
with prohibited drugs, until they had a falling out allegedly after
the victim failed to remit to Navales proceeds from the sale of
illegal drugs amounting to P31,000. Appellants apparently killed
the victim to return the "special favors" Navales had showered
them. Lack of a motive does not necessarily preclude conviction.
Persons have been killed or assaulted for no reason at all, and
friendship or even relationship is no deterrent to the commission
of a crime.49

Sixth, in the present case, appellants contend that the PNP

cannot be presumed to have done their work since it committed

errors and blunders in transferring possession and custody of the
physical evidence. They allege there was a possibility that the
evidence was tainted, planted, or manufactured. Besides,
appellants point out that the presumption of regularity cannot
prevail over the constitutional presumption of innocence of the
accused.
The record shows that the police officers did not issue
acknowledgment receipts in some instances. However, minor
lapses do not mean that the State had failed to show an
unbroken chain of custody of the subject firearms and
ammunition, nor that said firearms and ammunition were
tampered. The slugs and spent shells recovered from the scene
of the crime and the victim's corpse were plainly identified in
open court by the PNP investigators. The ballistician testified
that the bullets and cartridges recovered from the crime scene
had been fired from the subject handguns. Under these
circumstances, we must respect the presumption of the
regularity in the performance of duties.

Seventh, appellants insist that the prosecution failed to show

that the red "Jiffy" used by them and seized by the police
officers was the same vehicle used by the gunmen who killed
Alejandro Flores. Appellants point out that PO3 Rustela, who was
aboard police car No. 201, testified that they lost sight of the red
"Jiffy" while chasing it along Leon Kilat Street. Appellants argue
that the "Jiffy" which was chased by patrol car No. 208 until it
was cornered near BBRC by the other pursuing patrol cars was
not the same vehicle originally sighted and tailed by patrol car
No. 201.

AGUSTIN, E.P. | 162

In rejecting this theory, the trial court stated that:

. . . PO3 Rustela who was nearby, immediately ran to
the scene of the crime and met the red jiffy with
three persons on board, that speedily passed by him
proceeding towards Leon Kilat Street. Car 208 readily
picked up the trail and pursued the red jiffy from
Leon Kilat, then making abrupt turns on downtown
streets until other patrol cars joined the chase and
captured them in Lahug, near the BBRC. The identity
of the red jiffy was never interrupted. Members of the
Mobile Patrol Cars identified in court without batting
an eyelash, the red jiffy which was the object of the
shooting alarm. There was no interruption, no let-up
in the chase, right after Alejandro Flores was shot and
there was no other red jiffy that the crews of the
(pursuing) patrol cars noticed.
The Court rejects their claim of innocence, for their
very acts belied the same.
Astellero could have stopped the jeep upon noticing
that patrol cars were already running after them with
sirens, blinkers and warning shots fired. From Leon
Kilat Street to Lahug airport, there were several police
stations that they could have sought shelter and
police assistance. Guilt has many ways of surfacing.
Instead of stopping, Abriol ordered Astellero to
accelerate their speed. Their obvious purpose was to
elude the patrol cars. Flight is indicative of guilt.50
But, in this case, is the totality of the circumstantial evidence
relied upon by the trial court sufficient to support a conviction?
Circumstantial evidence is that which indirectly proves a fact in
issue. For circumstantial evidence to be sufficient to support a
conviction, all the circumstances must be consistent with each
other, consistent with the theory that the accused is guilty of the
offense charged, and at the same time inconsistent with the
hypothesis that he is innocent and with every other possible,
rational hypothesis, except that of guilt.51 An accused can be
convicted on the basis of circumstantial evidence where all the
circumstances constitute an unbroken chain leading to one fair
and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the culprit.52
In our assessment, the prosecution's evidence constitutes an
unbroken chain of events leading to the inevitable conclusion of
guilt on the part of appellants. First, the fatal shooting of
Alejandro Flores occurred at around 11:50 P.M. of June 5, 1993
in front of the ABS-CBN compound in Cebu City. The gunman,
who was tall and thin, alighted from a red "Jiffy," pumped
several bullets into the prone victim, and got back aboard the
"Jiffy" which then sped towards Leon Kilat Street. Second,
eyewitness Romeo Sta. Cruz, Jr.'s description of the gunman as
"tall and thin" perfectly matches the physique of appellant Abriol.
Third, PO3 Alexander Rustela, who was close to the crime scene,
heard the gunshots and ran towards the place where the sound
of gunshots emanated. A red "Jiffy" with three persons aboard
whizzed by him and abruptly turned at Leon Kilat Street. After
Sta. Cruz, Jr. informed him that the gunmen were aboard a red
"Jiffy," Rustela boarded patrol car No. 201, radioed an alarm,
and commenced a pursuit of the fleeing vehicle. Police car no.
208 received the alarm, and on turning into Leon Kilat Street,
encountered the speeding red "Jiffy." They immediately chased
the "Jiffy" but failed to catch it. Police cars Nos. 208 and 205
cornered the vehicle in front of the Don Bosco building near
BBRC. PO2 Gerald Cue, on patrol car no. 205 fired a warning

EVIDENCE

shot at the vehicle and directed all those aboard to disembark.

Three men got out, with their hands raised. SPO1 Abrigana, on
patrol car no. 208 and PO2 Cue approached the trio. Abrigana
frisked the man who was seated in the front passenger seat,
who turned out to be appellant Abriol, and recovered from his
waist a .38 caliber revolver with six empty shells. Cue searched
the red "Jiffy" and found two loaded .45 caliber pistols under the
front seat where Abriol had sat. Other police officers immediately
went to the crime scene where they found the victim barely
alive. PO3 Seville retrieved four .45 caliber slugs and two
deformed slugs at the spot where the victim was shot. The
autopsy of the victim's remains showed that he died of cardio
respiratory arrest due to shock and hemorrhage secondary to
gunshot wounds. A deformed metal jacket of a .38 caliber slug
was recovered from the corpse. Ballistics tests showed that the
bullets and cartridges had identical individual characteristics with
those of the test bullets and cartridges. Paraffin tests conducted
on each of the appellants, one day after the incident, revealed
that all were positive for gunpowder residues. The subject
firearms were also chemically examined and found positive for
gunpowder residue. Before the shooting incident, appellants
were seen at Navales' house until around 7:30 P.M., when they
left aboard Navales' red "Jiffy" with Astellero driving, Abriol in
the front passenger seat, and Dosdos in the back seat.53
Appellants' seating arrangements were exactly the same, several
hours later, after they were pursued and cornered by police cars
near BBRC. Appellants admitted that they dropped by the
Navales residence at around 7:00 P.M. and 11:00 P.M.
These unbroken chain of events prove not only appellants'
identities but also their participation and collective responsibility
in the murder of Alejandro Flores. They reveal a unity of purpose
and concerted action evidencing their conspiracy to kill him.
Against this matrix of facts and circumstances, appellants' bare
denials cannot stand. Their story of chasing a red "Jiffy" is
merely a disingenuous diversion of no evidentiary value for the
defense.
Finally, the information for murder alleged treachery and evident
premeditation. We note, though, that the trial court did not state
which circumstance qualified the killing into murder.
A review of the record would reveal that there was no evident
premeditation. There is evident premeditation when the
following are shown: (a) the time when the accused determined
to commit the crime; (b) an act or acts manifestly indicating that
the accused has clung to his determination; and (c) a lapse of
time between the determination to commit the crime and the
execution thereof sufficient to allow him to reflect upon the
consequences of his act.54 Evident premeditation indicates
deliberate planning and preparation. Nowhere in the record is it
shown when and how appellants planned and prepared to kill
the victim.
Concerning treachery, however, it was shown that: (1) the
means of execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2) the means of
execution was deliberately or consciously adopted.55 These twin
requisites were adequately proved.
Appellants had superiority in numbers and weapons. The victim
was without any means to defend himself as no weapon was
found or even intimated to be in his possession. The victim was
running away from the "Jiffy" prior to the killing. That he was
warned or threatened earlier is of no moment. Even when the
victim is warned of danger to his person, if the execution of the
attack made it impossible for the victim to defend himself or to
retaliate, treachery can still be appreciated.56 The victim was

AGUSTIN, E.P. | 163

lying prostrate on the ground when he was deliberately and

mercilessly riddled with bullets. The weapons used, the number
of assailants, the swift and planned manner of the attack, and
the multiple number of wounds inflicted upon the victim all
demonstrate a determined assault with intent to kill the victim.
No doubt there was treachery.
B. Criminal Case No. CBU-33664
On their conviction for illegal possession of firearms, appellants
contend that the handguns and ammunition allegedly taken from
them by the police officers were illegally seized. They assert that
the police had no warrant to effect a search and seizure, such
that these illegally seized firearms were inadmissible as
evidence, and it was error for the trial court to admit them.
There are eight (8) instances where a warrantless search and
seizure is valid. They are: (1) consented searches;57 (2) as an
incident to a lawful arrest;58 (3) searches of vessels and aircraft
for violation of immigration, customs, and drug laws;59 (4)
searches of moving vehicles;60 (5) searches of automobiles at
borders or constructive borders; (6) where the prohibited articles
are in "plain view;"61 (7) searches of buildings and premises to
enforce fire, sanitary, and building regulations; and (8) "stop and
frisk" operations.62
In this case, the warrantless search and seizure of the subject
handguns and ammunition is valid for two reasons. It was a
search incidental to a lawful arrest. It was made after a fatal
shooting, and pursuit of a fast-moving vehicle seeking to elude
pursuing police officers, and a more than reasonable belief on
the part of the police officers that the fleeing suspects aboard
said vehicle had just engaged in criminal activity. The urgent
need of the police to take immediate action in the light of the
foregoing exigencies clearly satisfies the requirements for
warrantless arrests under the Rules of Court.63 Moreover, when
caught in flagrante delicto with firearms and ammunition which
they were not authorized to carry, appellants were actually
violating P.D. No. 1866, another ground for valid arrest under
the Rules.64
Appellants further contend that the trial court erred in convicting
appellants Astellero and Dosdos of illegal possession of firearms.
They point out that the .38 caliber revolver was recovered from
appellant Abriol, who as a policeman was authorized to carry
and possess said firearm, as evidenced by his Memorandum
Receipt (MR), which had "not been recalled, cancelled or
revoked until the time of the trial of these cases." Appellants
claim that the two .45 caliber pistols could have been left in the
vehicle by PNP personnel assigned at BBRC, considering that the
red "Jiffy" was generally used as a service vehicle by BBRC
personnel. They also argue that the prosecution failed to prove
appellants' ownership, control, and possession of the .45 caliber
pistols, considering that appellants were six meters away from
the "Jiffy" when said handguns were allegedly found.
To sustain a conviction for violation of P.D. No. 1866, the
prosecution must prove two elements of the offense: (1) the
existence of the subject firearm; (2) the fact that the accused
who owned or possessed the firearm does not have the
corresponding license or permit to possess it.65 These the
prosecution did. It presented a .38 caliber revolver with serial
number PO8445, a .45 caliber pistol with serial number PGO
13506 Para Ordinance, and a .45 caliber pistol with serial
number 52469. The .38 caliber handgun was recovered from
appellant Abriol, while the two .45 caliber automatics were found
and seized from under the front passenger seat of appellants'
vehicle. SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan

EVIDENCE

District Command's Firearms and Explosive Unit testified that

appellants were not listed as licensed firearm owners in Cebu
City.66 The prosecution also presented a certification from
P/Senior Inspector Edwin Roque of the Firearms and Explosives
Division of PNP Headquarters at Camp Crame, Quezon City that
appellant Abriol is not licensed to hold any firearm; that the .45
caliber pistols were unlicensed; and that a certification from the
PNP Firearms and Explosives Office attesting that a person is not
a licensee of any firearm, proves beyond reasonable doubt the
second element of illegal possession of firearm.67
Abriol insists that he had a valid MR authorizing him to carry the
.38 revolver. We agree with the observation of the trial court
that:
The claim of Abriol that .38 caliber was issued to him,
as evidenced by the corresponding receipt (MR), is of
no moment. While an MR is an authority of Abriol to
possess the government firearm that was issued to
him, when he was charged and detained at BBRC for
an earlier case of murder, other than the case at bar,
he was already then at that moment a detained
prisoner and therefore, (un)authorized to carry a
firearm. A military man or a member of the PNP who
commits a crime, is immediately disarmed upon his
arrest and stripped of all the rights and privileges that
go with the function of his office, and this includes, in
the case of Abriol, his MR. Thus, when he shot
Alejandro Flores with his .38 caliber revolver, this
firearm was already unauthorized and its use and
possession illegal.68
Even if Abriol's MR was valid, said authorization was limited only
to the .38 caliber revolver and not the two .45 caliber automatic
pistols found under the front passenger seat of the "Jiffy."
Appellants were still in the unlawful possession of the .45 caliber
pistols. Under P.D. No. 1866, possession is not limited to actual
possession.69 In this case, appellants had control over the
pistols. They were all liable since conspiracy was established and
the act of one is the act of all.70
Appellants claim that they were six meters away from the "Jiffy"
when it was searched and the two .45 caliber pistols were
seized. They suggest that the policemen who searched the
vehicle could have planted said firearms. The trial court found
that they were in fact only one meter away from the vehicle.
Findings of fact of the trial court, when supported by the
evidence on record, are binding and conclusive upon appellate
courts.71
All told, on the charge of illegal possession of firearms, no
reversible error was committed by the trial court when it found
appellants guilty beyond reasonable doubt.
The Office of the Solicitor General recommends that although
appellants were charged with and convicted of two separate
offenses of murder and violation of P.D. No. 1866, R.A. No.
8294, which amended said decree, should be applied to
appellants retroactively, citing People v. Molina, 292 SCRA 742,
779 (1998) interpreting R.A. No. 8294.
We agree. We ruled in Molina that with the passage of R.A. No.
8294 on June 6, 1997, the use of an unlicensed firearm in
murder or homicide is not a separate crime, but merely a special
aggravating circumstance. This was recently reiterated in People
v. Castillo, G.R. Nos. 131592-93, February 15, 2000.72 Appellants
are thus guilty only of murder with the special aggravating

AGUSTIN, E.P. | 164

circumstance of use of unlicensed firearms. The imposition of

the penalty of reclusion perpetua cannot however be modified
since the murder took place before the effectivity of R.A. No.
7659.
A final word on the damages. In addition to the award of
P50,000 as indemnity ex delicto, the trial court awarded P30,000
in actual damages, "representing a reasonable amount for the
embalming, vigil, wake and burial expenses," and P30,000 as
attorney's fees. To be entitled to actual damages, it is necessary
to prove the actual amount of loss with a reasonable degree of
certainty, premised upon competent proof, and on the best
evidence obtainable by the injured party.73 No such evidence
was offered. The award of actual damages must, therefore, be
deleted. However, temperate damages may be awarded since
the family of the victim has demonstrably spent for the wake,
funeral and burial arrangements. The amount of P20,000 should
suffice as temperate damages. In addition, we find an award of
exemplary damages in order, pursuant to Article 2230 of the
Civil Code.74 The killing was attended by the special aggravating
circumstance of use of unlicensed firearms. Moreover, the public
good demands that detained prisoners should not abuse their
status as "trustees." Had the police been unsuccessful in their
pursuit of appellants, the latter would have used the BBRC as
shelter and as an alibi that they could not have committed the
crime since they were then in detention. Thus, we find an award
of P10,000 as exemplary damages in order. Accordingly, the
award of attorney's fees is sustained.75
WHEREFORE, the assailed Decision of the Regional Trial Court of
Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 and
CBU-33664 is hereby MODIFIED. Appellants Albert Abriol,
Macario Astellero, and Januario Dosdos are hereby found
GUILTY of murder, qualified by treachery, with the special
aggravating circumstance of use of unlicensed firearms and are
hereby sentenced to suffer the penalty of reclusion perpetua
with the accessory penalties provided for by law. Appellants
Abriol, Astellero, and Dosdos are also ordered to pay, jointly and
severally, the heirs of Alejandro Flores the sum of P50,000 as
death indemnity, P20,000 as temperate damages, P10,000 as
exemplary damages, and P30,000 as attorney's fees, as well as
the costs.
SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

EVIDENCE

AGUSTIN, E.P. | 165

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 166738

August 14, 2009

ROWENA PADILLA-RUMBAUA, Petitioner,

vs.
EDWARD RUMBAUA, Respondent.
DECISION
BRION, J.:
Petitioner Rowena Padilla-Rumbaua (petitioner) challenges,
through her petition for review on certiorari,1 the decision dated
June 25, 20042 and the resolution dated January 18, 20053 of
the Court of Appeals (CA) in CA-G.R. CV No. 75095. The
challenged decision reversed the decision4 of the Regional Trial
Court (RTC) declaring the marriage of the petitioner and
respondent Edward Rumbaua (respondent) null and void on the
ground of the latters psychological incapacity. The assailed
resolution, on the other hand, denied the petitioners motion for
reconsideration.
ANTECEDENT FACTS
The present petition traces its roots to the petitioners complaint
for the declaration of nullity of marriage against the respondent
before the RTC, docketed as Civil Case No. 767. The petitioner
alleged that the respondent was psychologically incapacitated to
exercise the essential obligations of marriage as shown by the
following circumstances: the respondent reneged on his promise
to live with her under one roof after finding work; he failed to
extend financial support to her; he blamed her for his mothers
death; he represented himself as single in his transactions; and
he pretended to be working in Davao, although he was
cohabiting with another woman in Novaliches, Quezon City.
Summons was served on the respondent through substituted
service, as personal service proved futile.5 The RTC ordered the
provincial prosecutor to investigate if collusion existed between
the parties and to ensure that no fabrication or suppression of
evidence would take place.6 Prosecutor Melvin P. Tiongsons
report negated the presence of collusion between the parties.7
The Republic of the Philippines (Republic), through the office of
the Solicitor General (OSG), opposed the petition.8 The OSG
entered its appearance and deputized the Provincial Prosecutor
of Nueva Vizcaya to assist in all hearings of the case.9
The petitioner presented testimonial and documentary evidence
to substantiate her charges.
The petitioner related that she and the respondent were
childhood neighbors in Dupax del Norte, Nueva Vizcaya.
Sometime in 1987, they met again and became sweethearts but
the respondents family did not approve of their relationship.
After graduation from college in 1991, the respondent promised
to marry the petitioner as soon as he found a job. The job came
in 1993, when the Philippine Air Lines (PAL) accepted the
respondent as a computer engineer. The respondent proposed
to the petitioner that they first have a "secret marriage" in order

EVIDENCE

not to antagonize his parents. The petitioner agreed; they were

married in Manila on February 23, 1993. The petitioner and the
respondent, however, never lived together; the petitioner stayed
with her sister in Fairview, Quezon City, while the respondent
lived with his parents in Novaliches.
The petitioner and respondent saw each other every day during
the first six months of their marriage. At that point, the
respondent refused to live with the petitioner for fear that public
knowledge of their marriage would affect his application for a
PAL scholarship. Seven months into their marriage, the couples
daily meetings became occasional visits to the petitioners house
in Fairview; they would have sexual trysts in motels. Later that
year, the respondent enrolled at FEATI University after he lost
his employment with PAL.10
In 1994, the parties respective families discovered their secret
marriage. The respondents mother tried to convince him to go
to the United States, but he refused. To appease his mother, he
continued living separately from the petitioner. The respondent
forgot to greet the petitioner during her birthday in 1992 and
likewise failed to send her greeting cards on special occasions.
The respondent indicated as well in his visa application that he
was single.
In April 1995, the respondents mother died. The respondent
blamed the petitioner, associating his mothers death to the pain
that the discovery of his secret marriage brought. Pained by the
respondents action, the petitioner severed her relationship with
the respondent. They eventually reconciled through the help of
the petitioners father, although they still lived separately.
In 1997, the respondent informed the petitioner that he had
found a job in Davao. A year later, the petitioner and her mother
went to the respondents house in Novaliches and found him
cohabiting with one Cynthia Villanueva (Cynthia). When she
confronted the respondent about it, he denied having an affair
with Cynthia.11 The petitioner apparently did not believe the
respondents and moved to to Nueva Vizcaya to recover from the
pain and anguish that her discovery brought.12
The petitioner disclosed during her cross-examination that
communication between her and respondent had ceased. Aside
from her oral testimony, the petitioner also presented a certified
true copy of their marriage contract;13 and the testimony,
curriculum vitae,14 and psychological report15 of clinical
psychologist Dr. Nedy Lorenzo Tayag (Dr. Tayag).
Dr. Tayag declared on the witness stand that she administered
the following tests on the petitioner: a Revised Beta
Examination; a Bender Visual Motor Gestalt Test; a Rorschach
Psychodiagnostic Test; a Draw a Person Test; a Sachs Sentence
Completion Test; and MMPI.16 She thereafter prepared a
psychological report with the following findings:
TEST RESULTS AND EVALUATION
Psychometric tests data reveal petitioner to operate in an
average intellectual level. Logic and reasoning remained intact.
She is seen to be the type of woman who adjusts fairly well into
most situations especially if it is within her interests. She is
pictured to be faithful to her commitments and had reservations
from negative criticisms such that she normally adheres to social
norms, behavior-wise. Her age speaks of maturity, both
intellectually and emotionally. Her one fault lies in her compliant
attitude which makes her a subject for manipulation and
deception such that of respondent. In all the years of their

AGUSTIN, E.P. | 166

relationship, she opted to endure his irresponsibility largely

because of the mere belief that someday things will be much
better for them. But upon the advent of her husbands infidelity,
she gradually lost hope as well as the sense of self-respect, that
she has finally taken her tool to be assertive to the point of
being aggressive and very cautious at times so as to fight with
the frustration and insecurity she had especially regarding her
failed marriage.
Respondent in this case, is revealed to operate in a very
self-centered manner as he believes that the world
revolves around him. His egocentrism made it so easy for
him to deceitfully use others for his own advancement
with an extreme air of confidence and dominance. He
would do actions without any remorse or guilt feelings
towards others especially to that of petitioner.

SO ORDERED.18
The CA Decision
The Republic, through the OSG, appealed the RTC decision to
the CA.19 The CA decision of June 25, 2004 reversed and set
aside the RTC decision, and denied the nullification of the
parties marriage.20
In its ruling, the CA observed that Dr. Tayags psychiatric report
did not mention the cause of the respondents so-called
"narcissistic personality disorder;" it did not discuss the
respondents childhood and thus failed to give the court an
insight into the respondents developmental years. Dr. Tayag
likewise failed to explain why she came to the conclusion that
the respondents incapacity was "deep-seated" and "incurable."

REMARKS
Love happens to everyone. It is dubbed to be boundless as it
goes beyond the expectations people tagged with it. In love,
"age does matter." People love in order to be secure that one
will share his/her life with another and that he/she will not die
alone. Individuals who are in love had the power to let love grow
or let love die it is a choice one had to face when love is not
the love he/she expected.
In the case presented by petitioner, it is very apparent that love
really happened for her towards the young respondent who
used "love" as a disguise or deceptive tactic for exploiting the
confidence she extended towards him. He made her believe that
he is responsible, true, caring and thoughtful only to reveal
himself contrary to what was mentioned. He lacked the
commitment, faithfulness, and remorse that he was able to
engage himself to promiscuous acts that made petitioner look
like an innocent fool. His character traits reveal him to suffer
Narcissistic Personality Disorder - declared to be grave, severe
and incurable.17 [Emphasis supplied.]
The RTC Ruling
The RTC nullified the parties marriage in its decision of April 19,
2002. The trial court saw merit in the testimonies of the
petitioner and Dr. Tayag, and concluded as follows:
xxxx
Respondent was never solicitous of the welfare and wishes of his
wife. Respondent imposed limited or block [sic] out
communication with his wife, forgetting special occasions, like
petitioners birthdays and Valentines Day; going out only on
occasions despite their living separately and to go to a motel to
have sexual intercourse.
It would appear that the foregoing narration are the attendant
facts in this case which show the psychological incapacity of
respondent, at the time of the celebration of the marriage of the
parties, to enter into lawful marriage and to discharge his marital
responsibilities (See Articles 68 to 71, Family Code). This
incapacity is "declared grave, severe and incurable."
WHEREFORE, in view of the foregoing, the marriage between
petitioner Rowena Padilla Rumbaua and respondent Edwin
Rumbaua is hereby declared annulled.

EVIDENCE

The CA held that Article 36 of the Family Code requires the

incapacity to be psychological, although its manifestations may
be physical. Moreover, the evidence presented must show that
the incapacitated party was mentally or physically ill so that he
or she could not have known the marital obligations assumed,
knowing them, could not have assumed them. In other words,
the illness must be shown as downright incapacity or inability,
not a refusal, neglect, or difficulty to perform the essential
obligations of marriage. In the present case, the petitioner
suffered because the respondent adamantly refused to live with
her because of his parents objection to their marriage.
The petitioner moved to reconsider the decision, but the CA
denied her motion in its resolution of January 18, 2005. 21
The Petition and the Issues
The petitioner argues in the present petition that
1. the OSG certification requirement under Republic v.
Molina22 (the Molina case) cannot be dispensed with
because A.M. No. 02-11-10-SC, which relaxed the
requirement, took effect only on March 15, 2003;
2. vacating the decision of the courts a quo and
remanding the case to the RTC to recall her expert
witness and cure the defects in her testimony, as well
as to present additional evidence, would temper
justice with mercy; and
3. Dr. Tayags testimony in court
deficiencies in her psychiatric report.

cured

the

The petitioner prays that the RTCs and the CAs decisions be
reversed and set aside, and the case be remanded to the RTC
for further proceedings; in the event we cannot grant this
prayer, that the CAs decision be set aside and the RTCs
decision be reinstated.
The Republic maintained in its comment that: (a) A.M. No. 0211-10-SC was applicable although it took effect after the
promulgation of Molina; (b) invalidating the trial courts decision
and remanding the case for further proceedings were not
proper; and (c) the petitioner failed to establish respondents
psychological incapacity.23

AGUSTIN, E.P. | 167

The parties simply reiterated their arguments in the memoranda

they filed.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
A.M. No. 02-11-10-SC is applicable
In Molina, the Court emphasized the role of the prosecuting
attorney or fiscal and the OSG; they are to appear as counsel for
the State in proceedings for annulment and declaration of nullity
of marriages:

A.M. No. 02-11-10-SC, as a remedial measure, removed the

mandatory nature of an OSG certification and may be applied
retroactively to pending matters. In effect, the measure cures in
any pending matter any procedural lapse on the certification
prior to its promulgation. Our rulings in Antonio v. Reyes27 and
Navales v. Navales28 have since confirmed and clarified that A.M.
No. 02-11-10-SC has dispensed with the Molina guideline on the
matter of certification, although Article 48 mandates the
appearance of the prosecuting attorney or fiscal to ensure that
no collusion between the parties would take place. Thus, what is
important is the presence of the prosecutor in the case, not the
remedial requirement that he be certified to be present. From
this perspective, the petitioners objection regarding the Molina
guideline on certification lacks merit.
A Remand of the Case to the RTC is Improper

(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No
decision shall be handed down unless the Solicitor General issues
a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095. [Emphasis supplied.]
A.M. No. 02-11-10-SC24 -- which this Court promulgated on
March 15, 2003 and duly published -- is geared towards the
relaxation of the OSG certification that Molina required. Section
18 of this remedial regulation provides:
SEC. 18. Memoranda. The court may require the parties and
the public prosecutor, in consultation with the Office of the
Solicitor General, to file their respective memoranda in support
of their claims within fifteen days from the date the trial is
terminated.lawphil.net It may require the Office of the Solicitor
General to file its own memorandum if the case is of significant
interest to the State. No other pleadings or papers may be
submitted without leave of court. After the lapse of the period
herein provided, the case will be considered submitted for
decision, with or without the memoranda.
The petitioner argues that the RTC decision of April 19, 2002
should be vacated for prematurity, as it was rendered despite
the absence of the required OSG certification specified in Molina.
According to the petitioner, A.M. No. 02-11-10-SC, which took
effect only on March 15, 2003, cannot overturn the requirements
of Molina that was promulgated as early as February 13, 1997.
The petitioners argument lacks merit.
The amendment introduced under A.M. No. 02-11-10-SC is
procedural or remedial in character; it does not create or remove
any vested right, but only operates as a remedy in aid of or
confirmation of already existing rights. The settled rule is that
procedural laws may be given retroactive effect,25 as we held in
De Los Santos v. Vda. de Mangubat:26
Procedural Laws do not come within the legal conception of a
retroactive law, or the general rule against the retroactive
operation of statues - they may be given retroactive effect on
actions pending and undetermined at the time of their passage
and this will not violate any right of a person who may feel that
he is adversely affected, insomuch as there are no vested rights
in rules of procedure.

EVIDENCE

The petitioner maintains that vacating the lower courts decisions

and the remand of the case to the RTC for further reception of
evidence are procedurally permissible. She argues that the
inadequacy of her evidence during the trial was the fault of her
former counsel, Atty. Richard Tabago, and asserts that
remanding the case to the RTC would allow her to cure the
evidentiary insufficiencies. She posits in this regard that while
mistakes of counsel bind a party, the rule should be liberally
construed in her favor to serve the ends of justice.
We do not find her arguments convincing.
A remand of the case to the RTC for further proceedings
amounts to the grant of a new trial that is not procedurally
proper at this stage. Section 1 of Rule 37 provides that an
aggrieved party may move the trial court to set aside a
judgment or final order already rendered and to grant a new trial
within the period for taking an appeal. In addition, a motion for
new trial may be filed only on the grounds of (1) fraud, accident,
mistake or excusable negligence that could not have been
guarded against by ordinary prudence, and by reason of which
the aggrieved partys rights have probably been impaired; or (2)
newly discovered evidence that, with reasonable diligence, the
aggrieved party could not have discovered and produced at the
trial, and that would probably alter the result if presented.
In the present case, the petitioner cites the inadequacy of the
evidence presented by her former counsel as basis for a remand.
She did not, however, specify the inadequacy. That the RTC
granted the petition for declaration of nullity prima facie shows
that the petitioners counsel had not been negligent in handling
the case. Granting arguendo that the petitioners counsel had
been negligent, the negligence that would justify a new trial
must be excusable, i.e. one that ordinary diligence and prudence
could not have guarded against. The negligence that the
petitioner apparently adverts to is that cited in Uy v. First Metro
Integrated Steel Corporation where we explained:29
Blunders and mistakes in the conduct of the proceedings in the
trial court as a result of the ignorance, inexperience or
incompetence of counsel do not qualify as a ground for new
trial. If such were to be admitted as valid reasons for re-opening
cases, there would never be an end to litigation so long as a new
counsel could be employed to allege and show that the prior
counsel had not been sufficiently diligent, experienced or
learned. This will put a premium on the willful and intentional
commission of errors by counsel, with a view to securing new
trials in the event of conviction, or an adverse decision, as in the
instant case.

AGUSTIN, E.P. | 168

Thus, we find no justifiable reason to grant the petitioners

requested remand.
Petitioner
failed
to
respondents psychological incapacity

establish

the

A petition for declaration of nullity of marriage is anchored on

Article 36 of the Family Code which provides that "a marriage
contracted by any party who, at the time of its celebration, was
psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such
incapacity becomes manifest only after its solemnization." In
Santos v. Court of Appeals,30 the Court first declared that
psychological incapacity must be characterized by (a) gravity;
(b) juridical antecedence; and (c) incurability. The defect should
refer to "no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged
by the parties to the marriage." It must be confined to "the most
serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to
the marriage."
We laid down more definitive guidelines in the interpretation and
application of Article 36 of the Family Code in Republic v. Court
of Appeals where we said:
(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of
the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution
and our laws cherish the validity of marriage and
unity of the family. Thus, our Constitution devotes an
entire Article on the Family, recognizing it "as the
foundation of the nation." It decrees marriage as
legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family
and marriage are to be "protected" by the state.
The Family Code echoes this constitutional edict on
marriage and the family and emphasizes their
permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity
must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the
incapacity must be psychological - not physical,
although its manifestations and/or symptoms may be
physical. The evidence must convince the court that
the parties, or one of them, was mentally or
psychically ill to such an extent that the person could
not have known the obligations he was assuming, or
knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need
be given here so as not to limit the application of the
provision under the principle of ejusdem generis,
nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at
"the time of the celebration" of the marriage. The
evidence must show that the illness was existing

EVIDENCE

when the parties exchanged their "I do's." The

manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at
such moment, or prior thereto.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in
regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession
or employment in a job. x x x
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential
obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The
illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less
ill will. In other words, there is a natal or supervening
disabling factor in the person, an adverse integral
element in the personality structure that effectively
incapacitates the person from really accepting and
thereby complying with the obligations essential to
marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition,
proven by evidence and included in the text of the
decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should
be given great respect by our courts
(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall be handed
down unless the Solicitor General issues a
certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition.
The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The
Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under
Canon 1095.
These Guidelines incorporate the basic requirements we
established in Santos. To reiterate, psychological incapacity must
be characterized by: (a) gravity; (b) juridical antecedence; and
(c) incurability.31 These requisites must be strictly complied with,
as the grant of a petition for nullity of marriage based on
psychological incapacity must be confined only to the most
serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to
the marriage. Furthermore, since the Family Code does not
define "psychological incapacity," fleshing out its terms is left to

AGUSTIN, E.P. | 169

us to do so on a case-to-case basis through jurisprudence.32 We

emphasized this approach in the recent case of Ting v. VelezTing33 when we explained:
It was for this reason that we found it necessary to emphasize in
Ngo Te that each case involving the application of Article 36
must be treated distinctly and judged not on the basis of a priori
assumptions, predilections or generalizations but according to its
own attendant facts. Courts should interpret the provision on a
case-to-case basis, guided by experience, the findings of experts
and researchers in psychological disciplines, and by decisions of
church tribunals.
In the present case and using the above standards and
approach, we find the totality of the petitioners evidence
insufficient to prove that the respondent is psychologically unfit
to discharge the duties expected of him as a husband.
a. Petitioners testimony did not prove the root cause, gravity
and incurability of respondents condition
The petitioners evidence merely showed that the respondent:
(a) reneged on his promise to cohabit with her; (b) visited her
occasionally from 1993 to 1997; (c) forgot her birthday in 1992,
and did not send her greeting cards during special occasions; (d)
represented himself as single in his visa application; (e) blamed
her for the death of his mother; and (f) told her he was working
in Davao when in fact he was cohabiting with another woman in
1997.
These acts, in our view, do not rise to the level of the
"psychological incapacity" that the law requires, and should be
distinguished from the "difficulty," if not outright "refusal" or
"neglect" in the performance of some marital obligations that
characterize some marriages. In Bier v. Bier,34 we ruled that it
was not enough that respondent, alleged to be psychologically
incapacitated, had difficulty in complying with his marital
obligations, or was unwilling to perform these obligations. Proof
of a natal or supervening disabling factor an adverse integral
element in the respondent's personality structure that effectively
incapacitated him from complying with his essential marital
obligations had to be shown and was not shown in this cited
case.
In the present case, the respondents stubborn refusal to cohabit
with the petitioner was doubtlessly irresponsible, but it was
never proven to be rooted in some psychological illness. As the
petitioners testimony reveals, respondent merely refused to
cohabit with her for fear of jeopardizing his application for a
scholarship, and later due to his fear of antagonizing his family.
The respondents failure to greet the petitioner on her birthday
and to send her cards during special occasions, as well as his
acts of blaming petitioner for his mothers death and of
representing himself as single in his visa application, could only
at best amount to forgetfulness, insensitivity or emotional
immaturity, not necessarily psychological incapacity. Likewise,
the respondents act of living with another woman four years
into the marriage cannot automatically be equated with a
psychological disorder, especially when no specific evidence was
shown that promiscuity was a trait already existing at the
inception of marriage. In fact, petitioner herself admitted that
respondent was caring and faithful when they were going steady
and for a time after their marriage; their problems only came in
later.
To be sure, the respondent was far from perfect and had some
character flaws. The presence of these imperfections, however,

EVIDENCE

does not necessarily warrant a conclusion that he had a

psychological malady at the time of the marriage that rendered
him incapable of fulfilling his duties and obligations. To use the
words of Navales v. Navales:35
Article 36 contemplates downright incapacity or inability to take
cognizance of and to assume basic marital obligations. Mere
"difficulty," "refusal" or "neglect" in the performance of marital
obligations or "ill will" on the part of the spouse is different from
"incapacity" rooted on some debilitating psychological condition
or illness. Indeed, irreconcilable differences, sexual infidelity or
perversion, emotional immaturity and irresponsibility, and the
like, do not by themselves warrant a finding of psychological
incapacity under Article 36, as the same may only be due to a
person's refusal or unwillingness to assume the essential
obligations of marriage and not due to some psychological illness
that is contemplated by said rule.
b. Dr. Tayags psychological report and court testimony
We cannot help but note that Dr. Tayags conclusions about the
respondents psychological incapacity were based on the
information fed to her by only one side the petitioner whose
bias in favor of her cause cannot be doubted. While this
circumstance alone does not disqualify the psychologist for
reasons of bias, her report, testimony and conclusions deserve
the application of a more rigid and stringent set of standards in
the manner we discussed above.36 For, effectively, Dr. Tayag
only diagnosed the respondent from the prism of a third party
account; she did not actually hear, see and evaluate the
respondent and how he would have reacted and responded to
the doctors probes.
Dr. Tayag, in her report, merely summarized the petitioners
narrations, and on this basis characterized the respondent to be
a self-centered, egocentric, and unremorseful person who
"believes that the world revolves around him"; and who "used
love as adeceptive tactic for exploiting the confidence
[petitioner] extended towards him." Dr. Tayag then incorporated
her own idea of "love"; made a generalization that respondent
was a person who "lacked commitment, faithfulness, and
remorse," and who engaged "in promiscuous acts that made the
petitioner look like a fool"; and finally concluded that the
respondents character traits reveal "him to suffer Narcissistic
Personality Disorder with traces of Antisocial Personality Disorder
declared to be grave and incurable."
We find these observations and conclusions insufficiently indepth and comprehensive to warrant the conclusion that a
psychological incapacity existed that prevented the respondent
from complying with the essential obligations of marriage. It
failed to identify the root cause of the respondent's narcissistic
personality disorder and to prove that it existed at the inception
of the marriage. Neither did it explain the incapacitating nature
of the alleged disorder, nor show that the respondent was really
incapable of fulfilling his duties due to some incapacity of a
psychological, not physical, nature. Thus, we cannot avoid but
conclude that Dr. Tayags conclusion in her Report i.e., that
the respondent suffered "Narcissistic Personality Disorder with
traces of Antisocial Personality Disorder declared to be grave and
incurable" is an unfounded statement, not a necessary
inference from her previous characterization and portrayal of the
respondent. While the various tests administered on the
petitioner could have been used as a fair gauge to assess her
own psychological condition, this same statement cannot be
made with respect to the respondents condition. To make
conclusions and generalizations on the respondents
psychological condition based on the information fed by only one

AGUSTIN, E.P. | 170

side is, to our mind, not different from admitting hearsay

evidence as proof of the truthfulness of the content of such
evidence.

Q: So in the representation of the petitioner that the respondent

is now lying [sic] with somebody else, how will you describe the
character of this respondent who is living with somebody else?

Petitioner nonetheless contends that Dr. Tayags subsequent

testimony in court cured whatever deficiencies attended her
psychological report.

A: This is where the antisocial personality trait of the respondent

[sic] because an antisocial person is one who indulge in
philandering activities, who do not have any feeling of guilt at
the expense of another person, and this [is] again a buy-product
of deep seated psychological incapacity.

We do not share this view.

A careful reading of Dr. Tayags testimony reveals that she failed
to establish the fact that at the time the parties were married,
respondent was already suffering from a psychological defect
that deprived him of the ability to assume the essential duties
and responsibilities of marriage. Neither did she adequately
explain how she came to the conclusion that respondents
condition was grave and incurable. To directly quote from the
records:
ATTY. RICHARD TABAGO:
Q: I would like to call your attention to the Report already
marked as Exh. "E-7", there is a statement to the effect that his
character traits begin to suffer narcissistic personality disorder
with traces of antisocial personality disorder. What do you
mean? Can you please explain in laymans word, Madam
Witness?
DR. NEDY LORENZO TAYAG:
A: Actually, in a laymans term, narcissistic personality disorder
cannot accept that there is something wrong with his own
behavioral manifestation. [sic] They feel that they can rule the
world; they are eccentric; they are exemplary, demanding
financial and emotional support, and this is clearly manifested by
the fact that respondent abused and used petitioners love.
Along the line, a narcissistic person cannot give empathy; cannot
give love simply because they love themselves more than
anybody else; and thirdly, narcissistic person cannot support his
own personal need and gratification without the help of others
and this is where the petitioner set in.
Q: Can you please describe the personal [sic] disorder?
A: Clinically, considering that label, the respondent behavioral
manifestation under personality disorder [sic] this is already
considered grave, serious, and treatment will be impossible [sic].
As I say this, a kind of developmental disorder wherein it all
started during the early formative years and brought about by
one familiar relationship the way he was reared and cared by the
family. Environmental exposure is also part and parcel of the
child disorder. [sic]
Q: You mean to say, from the formative [years] up to the
present?
A: Actually, the respondent behavioral manner was [present]
long before he entered marriage. [Un]fortunately, on the part of
the petitioner, she never realized that such behavioral
manifestation of the respondent connotes pathology. [sic]
xxxx

EVIDENCE

Q: And this psychological incapacity based on this particular

deep seated [sic], how would you describe the psychological
incapacity? [sic]
A: As I said there is a deep seated psychological dilemma, so I
would say incurable in nature and at this time and again [sic]
the psychological pathology of the respondent. One plays a
major factor of not being able to give meaning to a relationship
in terms of sincerity and endurance.
Q: And if this psychological disorder exists before the marriage
of the respondent and the petitioner, Madam Witness?
A: Clinically, any disorder are usually rooted from the early
formative years and so if it takes enough that such psychological
incapacity of respondent already existed long before he entered
marriage, because if you analyze how he was reared by her
parents particularly by the mother, there is already an unhealthy
symbiosis developed between the two, and this creates a major
emotional havoc when he reached adult age.
Q: How about the gravity?
A: This is already grave simply because from the very start
respondent never had an inkling that his behavioral
manifestation connotes pathology and second ground [sic],
respondent will never admit again that such behavior of his
connotes again pathology simply because the disorder of the
respondent is not detrimental to himself but, more often than
not, it is detrimental to other party involved.
xxxx
PROSECUTOR MELVIN TIONGSON:
Q: You were not able to personally examine the respondent
here?
DR. NEDY TAYAG:
A: Efforts were made by the psychologist but unfortunately, the
respondent never appeared at my clinic.
Q: On the basis of those examinations conducted with the
petitioning wife to annul their marriage with her husband in
general, what can you say about the respondent?
A: That from the very start respondent has no emotional intent
to give meaning to their relationship. If you analyze their marital
relationship they never lived under one room. From the very
start of the [marriage], the respondent to have petitioner to
engage in secret marriage until that time their family knew of

AGUSTIN, E.P. | 171

their marriage [sic]. Respondent completely refused, completely

relinquished his marital obligation to the petitioner.
xxxx
COURT:
Q: Because you have interviewed or you have questioned the
petitioner, can you really enumerate the specific traits of the
respondent?
DR. NEDY TAYAG:
A: One is the happy-go-lucky attitude of the respondent and the
dependent attitude of the respondent.
Q: Even if he is already eligible for employment?
A: He remains to be at the mercy of his mother. He is a happygo-lucky simply because he never had a set of responsibility. I
think that he finished his education but he never had a stable
job because he completely relied on the support of his mother.

This testimony shows that while Dr. Tayag initially described the
general characteristics of a person suffering from a narcissistic
personality disorder, she did not really show how and to what
extent the respondent exhibited these traits. She mentioned the
buzz words that jurisprudence requires for the nullity of a
marriage namely, gravity, incurability, existence at the time of
the marriage, psychological incapacity relating to marriage and
in her own limited way, related these to the medical condition
she generally described. The testimony, together with her
report, however, suffers from very basic flaws.

First, what she medically described was not related or

linked to the respondents exact condition except in a

very general way. In short, her testimony and report
were rich in generalities but disastrously short on
particulars, most notably on how the respondent can
be said to be suffering from narcissistic personality
disorder; why and to what extent the disorder is
grave and incurable; how and why it was already
present at the time of the marriage; and the effects
of the disorder on the respondents awareness of and
his capability to undertake the duties and
responsibilities of marriage. All these are critical to
the success of the petitioners case.

Second, her testimony was short on factual basis for

Q: You give a more thorough interview so I am asking you
something specific?
A: The happy-go-lucky attitude; the overly dependent attitude
on the part of the mother merely because respondent happened
to be the only son. I said that there is a unhealthy symbiosis
relationship [sic] developed between the son and the mother
simply because the mother always pampered completely,
pampered to the point that respondent failed to develop his own
sense of assertion or responsibility particularly during that stage
and there is also presence of the simple lying act particularly his
responsibility in terms of handling emotional imbalance and it is
clearly manifested by the fact that respondent refused to build a
home together with the petitioner when in fact they are legally
married. Thirdly, respondent never felt or completely ignored the
feelings of the petitioner; he never felt guilty hurting the
petitioner because on the part of the petitioner, knowing that
respondent indulge with another woman it is very, very
traumatic on her part yet respondent never had the guts to feel
guilty or to atone said act he committed in their relationship, and
clinically this falls under antisocial personality. 37
In terms of incurability, Dr. Tayags answer was very vague and
inconclusive, thus:
xxxx
ATTY. RICHARD TABAGO
Q: Can this personally be cured, madam witness?
DR. NEDY TAYAG
A: Clinically, if persons suffering from personality disorder
curable, up to this very moment, no scientific could be upheld to
alleviate their kind of personality disorder; Secondly, again
respondent or other person suffering from any kind of disorder
particularly narcissistic personality will never admit that they are
suffering from this kind of disorder, and then again curability will
always be a question. [sic]38

EVIDENCE

her diagnosis because it was wholly based on what

the petitioner related to her. As the doctor admitted
to the prosecutor, she did not at all examine the
respondent, only the petitioner. Neither the law nor
jurisprudence requires, of course, that the person
sought to be declared psychologically incapacitated
should be personally examined by a physician or
psychologist as a condition sine qua non to arrive at
such declaration.39 If a psychological disorder can be
proven by independent means, no reason exists why
such independent proof cannot be admitted and given
credit.40 No such independent evidence, however,
appears on record to have been gathered in this case,
particularly about the respondents early life and
associations, and about events on or about the time
of the marriage and immediately thereafter. Thus, the
testimony and report appear to us to be no more than
a diagnosis that revolves around the one-sided and
meager facts that the petitioner related, and were all
slanted to support the conclusion that a ground exists
to justify the nullification of the marriage. We say this
because only the baser qualities of the respondents
life were examined and given focus; none of these
qualities were weighed and balanced with the better
qualities, such as his focus on having a job, his
determination to improve himself through studies, his
care and attention in the first six months of the
marriage, among others. The evidence fails to
mention also what character and qualities the
petitioner brought into her marriage, for example,
why the respondents family opposed the marriage
and what events led the respondent to blame the
petitioner for the death of his mother, if this
allegation is at all correct. To be sure, these are
important because not a few marriages have failed,
not because of psychological incapacity of either or
both of the spouses, but because of basic
incompatibilities and marital developments that do
not amount to psychological incapacity. The
continued separation of the spouses likewise never
appeared to have been factored in. Not a few married
couples have likewise permanently separated simply
because they have "fallen out of love," or have

AGUSTIN, E.P. | 172

outgrown the attraction that drew them together in

their younger years.
Thus, on the whole, we do not blame the petitioner for the move
to secure a remand of this case to the trial courts for the
introduction of additional evidence; the petitioners evidence in
its present state is woefully insufficient to support the conclusion
that the petitioners marriage to the respondent should be
nullified on the ground of the respondents psychological
incapacity.
The Court commiserates with the petitioners marital
predicament. The respondent may indeed be unwilling to
discharge his marital obligations, particularly the obligation to
live with ones spouse. Nonetheless, we cannot presume
psychological defect from the mere fact that respondent refuses
to comply with his marital duties. As we ruled in Molina, it is not
enough to prove that a spouse failed to meet his responsibility
and duty as a married person; it is essential that he must be
shown to be incapable of doing so due to some psychological
illness. The psychological illness that must afflict a party at the
inception of the marriage should be a malady so grave and
permanent as to deprive the party of his or her awareness of the
duties and responsibilities of the matrimonial bond he or she was
then about to assume.41
WHEREFORE, in view of these considerations, we DENY the
petition and AFFIRM the decision and resolution of the Court of
Appeals dated June 25, 2004 and January 18, 2005,
respectively, in CA-G.R. CV No. 75095.
SO ORDERED.
ARTURO D. BRION
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 173

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 132164

October 19, 2004

CIVIL SERVICE COMMISSION, petitioner,

vs.
ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by
proof of his reputation, it is necessary that the reputation shown
should be that which existed before the occurrence of the
circumstances out of which the litigation arose,1 or at the time of
the trial and prior thereto, but not at a period remote from the
commencement of the suit.2 This is because a person of
derogatory character or reputation can still change or reform
himself.
For our resolution is the petition for review on certiorari of the
Court of Appeals Decision3 dated January 8, 1998, in CA-G.R.
SP. No. 44180, the dispositive portion of which reads:
"WHEREFORE, Resolution No. 966213 dated
September 23, 1996 and Resolution No. 972423
dated April 11, 1997 of the respondent Civil Service
Commission are hereby set aside. The complaint
against petitioner Allyson Belagan filed by Magdalena
Gapuz is hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is
hereby ordered to be immediately reinstated to his
position without loss of seniority, retirement,
backwages and other rights and benefits.
SO ORDERED."
The instant case stemmed from two (2) separate complaints
filed respectively by Magdalena Gapuz, founder/directress of the
"Mother and Child Learning Center," and Ligaya Annawi, a public
school teacher at Fort Del Pilar Elementary School, against
respondent Dr. Allyson Belagan, Superintendent of the
Department of Education, Culture and Sports (DECS), all from
Baguio City. Magdalena charged respondent with sexual
indignities and harassment, while Ligaya accused him of sexual
harassment and various malfeasances.
Magdalenas sworn complaint alleges that sometime in March
1994, she filed an application with the DECS Office in Baguio
City for a permit to operate a pre-school. One of the requisites
for the issuance of the permit was the inspection of the school
premises by the DECS Division Office. Since the officer assigned
to conduct the inspection was not present, respondent
volunteered his services. Sometime in June 1994, respondent
and complainant visited the school. In the course of the
inspection, while both were descending the stairs of the second
floor, respondent suddenly placed his arms around her shoulders
and kissed her cheek. Dumbfounded, she muttered, "Sir, is this
part of the inspection? Pati ba naman kayo sa DECS wala ng

EVIDENCE

values?" Respondent merely sheepishly smiled. At that time,

there were no other people in the area.
Fearful that her application might be jeopardized and that her
husband might harm respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office
and asked respondent, "Sir, kumusta yung application ko?" His
reply was "Mag-date muna tayo." She declined, explaining that
she is married. She then left and reported the matter to DECS
Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow
up her application. However, she was forced to reveal the
incidents to her husband when he asked why the permit has not
yet been released. Thereupon, they went to the office of the
respondent. He merely denied having a personal relationship
with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director
his recommendation to approve Magdalenas application for a
permit to operate a pre-school.
Sometime in September 1994, Magdalena read from a local
newspaper that certain female employees of the DECS in Baguio
City were charging a high-ranking DECS official with sexual
harassment. Upon inquiry, she learned that the official being
complained of was respondent. She then wrote a lettercomplaint for sexual indignities and harassment to former DECS
Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that
on four separate occasions, respondent touched her breasts,
kissed her cheek, touched her groins, embraced her from behind
and pulled her close to him, his organ pressing the lower part of
her back.
Ligaya also charged respondent with: (1) delaying the payment
of the teachers salaries; (2) failing to release the pay
differentials of substitute teachers; (3) willfully refusing to
release the teachers uniforms, proportionate allowances and
productivity pay; and (4) failing to constitute the Selection and
Promotion Board, as required by the DECS rules and regulations.
The DECS conducted a joint investigation of the complaints of
Magdalena and Ligaya. In his defense, respondent denied their
charge of sexual harassment. However, he presented evidence
to disprove Ligayas imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint
Decision4 finding respondent guilty of four (4) counts of sexual
"indignities or harassments" committed against Ligaya; and two
(2) counts of "sexual advances or indignities" against
Magdalena. He was ordered dismissed from the service. The
dispositive portion of the Joint Decision reads:
"WHEREFORE,
foregoing
disquisitions
duly
considered, decision is hereby rendered in the two
above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan,
Superintendent of the DECS Baguio City
Schools Division GUILTY of the four counts

AGUSTIN, E.P. | 174

of sexual indignities or harassments

committed against the person and honor of
complainant Miss Ligaya Annawi, a Baguio
City public school teacher, while in the
performance of his official duties and
taking advantage of his office. He is,
however, ABSOLVED of all the other
charges of administrative malfeasance or
dereliction of duty.

2. Criminal Case No. 45629 for SLIGHT PHYSICAL

INJURIES (May 13, 1982)

b) Respondent Baguio City Superintendent

Allyson Belagan likewise GUILTY of the two
counts of sexual advances or indignities
committed against the person and honor of
complainant Mrs. Magdalena Gapuz, a
private school teacher of Baguio City, while
in the performance of his official duties and
taking advantage of his office.

5. Criminal Case No. 51532 for MALICIOUS MISCHIEF

(January 25, 1985)

Consequently, respondent Allyson Belagan is HEREBY

ORDERED DISMISSED from the government service,
with prejudice to reinstatement and all his retirement
benefits and other remunerations due him are
HEREBY DECLARED FORFEITED in favor of the
government.
SO ORDERED."5
Upon appeal, the Civil Service Commission (CSC), on September
23, 1996, promulgated Resolution No. 9662136 affirming the
Decision of the DECS Secretary in the case filed by Magdalena
but dismissing the complaint of Ligaya. The CSC ruled that
respondents transgression against Magdalena constitutes grave
misconduct. Thus:
"The acts of Belagan are serious breach of good
conduct since he was holding a position which
requires the incumbent thereof to maintain a high
degree
of
moral
uprightness.
As
Division
Superintendent, Belagan represents an institution
tasked to mold the character of children.
Furthermore, one of his duties is to ensure that
teachers in his division conduct themselves properly
and observe the proper discipline. Any improper
behavior on his part will seriously impair his moral
ascendancy over the teachers and students which can
not be tolerated. Therefore, his misconduct
towards an applicant for a permit to operate a
private pre-school cannot be treated lightly and
constitutes the offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby
found guilty of grave misconduct and imposed the
penalty of DISMISSAL from the service with all the
accessory penalties. The decision of the DECS
Secretary is modified accordingly."7
On October 29, 1996, respondent seasonably filed a motion for
reconsideration, contending that he has never been charged of
any offense in his thirty-seven (37) years of service. By contrast,
Magdalena was charged with several offenses before the
Municipal Trial Court (MTC) of Baguio City, thus:
"1. Criminal Case No. 43416 for LIGHT ORAL
DEFAMATION (December 3, 1980)

EVIDENCE

3. Criminal Case No. 45630 for GRAVE THREATS (May

13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS
(June 24, 1982)

6. Criminal Case No. 51533 for LIGHT THREATS

(January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL
DEFAMATION (January 30, 1985)
8. Criminal Case No. 51818 for LIGHT ORAL
DEFAMATION (March 18, 1985)
9. Criminal Case No. 51819 for GRAVE ORAL
DEFAMATION (March 18, 1985)
10. Criminal Case No. 51820
MISCHIEF (March 18, 1985)

for

MALICIOUS

11. Criminal Case No. 51821 for UNJUST VEXATION

(March 18, 1985)
12. Criminal Case No. 62173 for UNJUST VEXATION
(May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL
DEFAMATION (May 29, 1991)
14. Criminal Case No. 62754 for GRAVE ORAL
DEFAMATION (December 2, 1986)
15. Criminal Case No. 55642 for GRAVE ORAL
DEFAMATION (December 2, 1986)
16. Criminal Case No. 55423 for GRAVE ORAL
DEFAMATION (October 24, 1986)
17. Criminal Case No. 55846 for GRAVE ORAL
DEFAMATION (November 4, 1986)
18. Criminal Case No. 55800 for GRAVE ORAL
DEFAMATION (January 7, 1987)
19. Criminal Case No. 57312 for UNJUST VEXATION
(November 29, 1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL
INJURIES (December 13, 1985)
21. Criminal Case No. 53404 for UNJUST VEXATION
(December 13, 1985)

AGUSTIN, E.P. | 175

22. Criminal Case No. 55422 for UNJUST VEXATION

(October 24, 1986)"8

17.

In addition, the following complaints against Magdalena were

filed with the Barangay Chairmen of Barangay Gabriela Silang
and Barangay Hillside, both in Baguio City:

18.

"1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for

GRAVE THREATS, UNJUST VEXATION, RUMOR
MONGERING

19.

2. Teresita De Los Santos vs. Gapuz (Brgy. Case No.

86-8-26-8)
for
GRAVE
THREATS
&
ORAL
DEFAMATION

20.

3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case

No. 029) for ORAL DEFAMATION and FALSE
ACCUSATION

21.

4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030)

for HARASSMENT and THREATS

22.

5. GABRIELA SILANG TANOD FORCES vs. Gapuz

(Case No. 031) for HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for
ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for
ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978)
for RUMOR MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978)
for ORAL DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978)
for ORAL DEFAMATION
11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for
ORAL DEFAMATION
12.

Vistro
Salcedo
case
(May 8,
1979)
Where Mrs. Gapuz was spreading rumors against
Barangay Captain and Police Chief
13.

Demolition
Scandal
(May
10,
1979)
Where she called all the residents of their
Barangay for an emergency meeting and where she
shouted invectives against the residents
Incident
of
June
13,
1979
Mrs. Gapuz shouted invectives against the
Barangay Sanitary Inspector

Incident
of
September
2,
1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz

Incident
of
September
9,
1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros
during the council meeting
Incident
of
September
10,
1979
Mrs. Gapuz was hurling invectives along her alley
in the early morning
Incident
of
September
13,
1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie
de los Santos with the latters consent
Incident
of
September
21,
1979
Mrs. Gapuz was shouting and hurling invectives
scandalously around her residence
Incident
of
September
21,
1979
Mrs. Gapuz was shouting, complaining about
alleged poisoned sardines near the premises of her
residence which killed her hen.
23.

Incident
of
September
23,
1979
Mrs. Gapuz was shouting unpleasant words
around the neighborhood. She did not like the
actuations of a bayanihan group near the waiting
shed."9
Respondent claimed that the numerous cases filed against
Magdalena cast doubt on her character, integrity, and credibility.
In its Resolution No. 97242310 dated April 11, 1997, the CSC
denied respondents motion for reconsideration, holding that:
"The character of a woman who was the subject of a
sexual assault is of minor significance in the
determination of the guilt or innocence of the person
accused of having committed the offense. This is so
because even a prostitute or a woman of ill repute
may become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz
is shown to have had cases before the regular courts
for various offenses and was condemned by her
community for wrongful behavior does not discount
the possibility that she was in fact telling the truth
when she cried about the lecherous advances made
to her by the respondent. x x x"
Respondent then filed with the Court of Appeals a petition for
review. As stated earlier, it reversed the CSC Resolutions and
dismissed Magdalenas complaint.

14.

15.

Incident
of
August
25,
1979
Mrs. Gapuz shouted invectives against the
servants of Mr. De Leon
16.

Incident
of
August
26,
Mrs. Gapuz terrorized the council meeting

EVIDENCE

The Appellate Court held that Magdalena is an unreliable

witness, her character being questionable. Given her
aggressiveness and propensity for trouble, "she is not one whom
any male would attempt to steal a kiss." In fact, her "record
immediately raises an alarm in any one who may cross her
path."11 In absolving respondent from the charges, the Appellate
Court considered his "unblemished" service record for 37 years.

1979

AGUSTIN, E.P. | 176

Unsatisfied, the CSC, through the Solicitor General, filed the

instant petition raising the following assignments of error:
"I. The Supreme Court may rule on factual issues
raised on appeal where the Court of Appeals
misappreciated the facts. Furthermore, where the
findings of the Court of Appeals and the trial court are
contrary to each other, the Supreme Court may
review the record and evidence. The Court of Appeals
erred in not giving credence to the testimony of
complainant Magdalena Gapuz despite convincing and
overwhelming signs of its truthfulness.
II. The Court of Appeals committed reversible error
when it failed to give due weight to the findings of
the DECS, which conducted the administrative
investigation, specifically with respect to the
credibility of the witnesses presented.
III. The Court of Appeals erred in ruling that
respondent should be penalized under Sec. 22 (o) of
the Omnibus Rules Implementing Book V and not Sec.
22 (e) of said rules."12
In his comment, respondent maintains that Magdalenas
derogatory record undermines the verity of her charge and that
the Court of Appeals is correct in dismissing it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness,
Magdalena Gapuz, is credible. This is a question of fact which, as
a general rule, is not subject to this Courts review.
It is a rule of long standing that factual findings of the Court of
Appeals, if supported by substantial evidence, are conclusive and
binding on the parties and are not reviewable by this Court.13
This Court is, after all, not a trier of facts. One of the exceptions,
however, is when the findings of the Court of Appeals are
contrary to those of the trial court or a quasi-judicial body, like
petitioner herein.14
Here, the Court of Appeals and the CSC are poles apart in their
appreciation of Magdalenas derogatory record. While the former
considered it of "vital and paramount importance" in determining
the truth of her charge, the latter dismissed it as of "minor
significance." This contrariety propels us to the elusive area of
character and reputation evidence.
Generally, the character of a party is regarded as legally
irrelevant in determining a controversy.15 One statutory
exception is that relied upon by respondent, i.e., Section 51 (a)
3, Rule 130 of the Revised Rules on Evidence, which we quote
here:
51. Character evidence
admissible; exceptions.
"SEC.

not

generally

(a) In Criminal Cases:

xxx

xxx

(3) The good or bad moral

character of the offended party

EVIDENCE

may be proved if it tends to

establish in any reasonable
degree the probability or
improbability of the offense
charged."
It will be readily observed that the above provision pertains only
to criminal cases, not to administrative offenses. And even
assuming that this technical rule of evidence can be applied
here, still, we cannot sustain respondents posture.
Not every good or bad moral character of the offended party
may be proved under this provision. Only those which would
establish the probability or improbability of the offense charged.
This means that the character evidence must be limited to the
traits and characteristics involved in the type of offense
charged.16 Thus, on a charge of rape - character for chastity, on
a charge of assault - character for peaceableness or violence,
and on a charge of embezzlement - character for honesty.17 In
one rape case, where it was established that the alleged victim
was morally loose and apparently uncaring about her chastity,
we found the conviction of the accused doubtful.18
In the present administrative case for sexual harassment,
respondent did not offer evidence that has a bearing on
Magdalenas chastity. What he presented are charges for grave
oral defamation, grave threats, unjust vexation, physical injuries,
malicious mischief, etc. filed against her. Certainly, these pieces
of evidence are inadmissible under the above provision because
they do not establish the probability or improbability of the
offense charged.
Obviously, in invoking the above provision, what respondent was
trying to establish is Magdalenas lack of credibility and not the
probability or the improbability of the charge. In this regard, a
different provision applies.
Credibility means the disposition and intention to tell the truth in
the testimony given. It refers to a persons integrity, and to the
fact that he is worthy of belief.19 A witness may be discredited
by evidence attacking his general reputation for truth,20
honesty21 or integrity.22 Section 11, Rule 132 of the same
Revised Rules on Evidence reads:
"SEC. 11. Impeachment of adverse partys witness.
A witness may be impeached by the party against
whom he was called, by contradictory evidence, by
evidence that his general reputation for truth,
honesty, or integrity is bad, or by evidence that
he has made at other times statements inconsistent
with his present testimony, but not by evidence of
particular wrongful acts, except that it may be
shown by the examination of the witness, or the
record of the judgment, that he has been
convicted of an offense."
Although she is the offended party, Magdalena, by testifying in
her own behalf, opened herself to character or reputation attack
pursuant to the principle that a party who becomes a witness in
his own behalf places himself in the same position as any other
witness, and may be impeached by an attack on his character or
reputation.23
With the foregoing disquisition, the Court of Appeals is correct in
holding that the character or reputation of a complaining witness
in a sexual charge is a proper subject of inquiry. This leads us to

AGUSTIN, E.P. | 177

the ultimate question is Magdalenas derogatory record

sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of
Baguio City relate to acts committed in the 80s, particularly,
1985 and 1986. With respect to the complaints filed with the
Chairmen of Barangay Gabriela Silang and Barangay Hillside, the
acts complained of took place in 1978 to 1979. In the instant
administrative case, the offense was committed in 1994. Surely,
those cases and complaints are no longer reliable proofs of
Magdalenas character or reputation. The Court of Appeals,
therefore, erred in according much weight to such evidence.
Settled is the principle that evidence of ones character or
reputation must be confined to a time not too remote from the
time in question.24 In other words, what is to be determined is
the character or reputation of the person at the time of the trial
and prior thereto, but not at a period remote from the
commencement of the suit.25 Hence, to say that Magdalenas
credibility is diminished by proofs of tarnished reputation existing
almost a decade ago is unreasonable. It is unfair to presume
that a person who has wandered from the path of moral
righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.
Second, respondent failed to prove that Magdalena was
convicted in any of the criminal cases specified by respondent.
The general rule prevailing in a great majority of jurisdictions is
that it is not permissible to show that a witness has been
arrested or that he has been charged with or prosecuted for a
criminal offense, or confined in jail for the purpose of impairing
his credibility.26 This view has usually been based upon one or
more of the following grounds or theories: (a) that a mere
unproven charge against the witness does not logically tend to
affect his credibility, (b) that innocent persons are often arrested
or accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally established, and
(d) that a witness may not be impeached or discredited by
evidence of particular acts of misconduct.27 Significantly, the
same Section 11, Rule 132 of our Revised Rules on Evidence
provides that a witness may not be impeached by evidence of
particular wrongful acts. Such evidence is rejected because of
the confusion of issues and the waste of time that would be
involved, and because the witness may not be prepared to
expose the falsity of such wrongful acts.28 As it happened in this
case, Magdalena was not able to explain or rebut each of the
charges against her listed by respondent.
But more than anything else, what convinces us to sustain the
Resolution of the CSC is the fact that it is supported by
substantial evidence. As aptly pointed out by the Solicitor
General, Magdalena testified in a straightforward, candid and
spontaneous manner. Her testimony is replete with details, such
as the number of times she and respondent inspected the preschool, the specific part of the stairs where respondent kissed
her, and the matter about her transient boarders during
summer. Magdalena would not have normally thought about
these details if she were not telling the truth. We quote her
testimony during the cross-examination conducted by DECS
Assistant Secretary Romeo Capinpin and Undersecretary Antonio
Nachura, thus:
"Q Was there any conversation between you and Dr.
Belagan during the inspection on the first floor and
the second floor?

A There was, sir. It was a casual conversation that we

had with regard to my family, background, how the
school came about, how I started with the project.
That was all, sir.
Q Nothing about any form of sexual harassment, in
words or in deeds?
A Sir, because he inspected the second floor twice,
sir. We went up to the stairs twice, sir.
Q Why?
A I really dont know what was the reason behind, sir.
But on the second inspection, sir, I told him that as of
that time I had some transients with me. I was
making use of the premises for transients because
that was summer then, sir. And I already started
paying the place so I said, Sir, I have some transients
with me in the evening and he said, You know Mrs.
Gapuz, I am interested to stay in one of the rooms as
one your boarders. But I respectfully declined saying,
Sir, I think for delicadeza I cannot accept you. Not
that I dont want you to be here but people might
think that I am keeping you here and that would
prejudice my permit, sir.
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was it during
the first time that you went up with him or the second
time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?
A Yes, sir.
Q Do you recall what portion of the stairs where you
were during the alleged kissing?
A Sir, on the topmost of the stairs.
Q Before you went down?
A Yes, sir. At the topmost because there is a base
floor going up to the stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the
topmost?
A Yes sir.
Q Part of the floor of the building?
A Yes, sir. Topmost, sir?

EVIDENCE

AGUSTIN, E.P. | 178

ASEC R. CAPINPIN:

Q Was it morning, afternoon?

Q Will you kindly tell us your relative position at that

time?

A I think it was in the morning, sir.

A Sir, on the second time that we went up and I

mentioned about these transients that I had then and
he wanted to stay in the place in one of the rooms
and then I declined and I was still showing the rooms
simultaneously. On the last, the biggest room that I
had, he said, No. Never mind, I am not going to see
that anymore. So he waited for me there and upon
reaching the place, as I was to step down on the first
step going down, he placed his arm and held me
tightly and planted the kiss on my cheek, sir.
Q You said that he wanted to stay in one of the
rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I
made use of the time to get some transients.
Q And he was telling you that he wanted to occupy
one of the rooms?
A Yes, but I declined, sir for delicadeza.
Q At that time, there were no transients yet.
A When he came over for the inspection sir, nobody
was there."29
The above testimony does not stand in isolation. It is
corroborated by Peter Ngabit, DECS Assistant Division
Superintendent. Ngabit testified that Magdalena reported to him
that respondent kissed her and asked her for a "date."
"Q I would like to call your attention to Exhibit A
which is the affidavit of Mrs. Magdalena B. Gapuz,
particularly item no. 8, and may I read for your
information That the Monday after the incident, I
went to the DECS Division Office expecting to get
favorable recommendation from the DECS Regional
Office for the issuance of my permit. That I
proceeded to the Superintendent and asked him, Sir,
kumusta yung application ko and he said, mag date
muna tayo but I refused and explained that I am
married, after which I proceeded to the Office of Asst.
Superintendent Peter Ngabit to relate the incident and
then left the Division Office. Do you remember if Mrs.
Gapuz went to your Office on the particular day?
A Yes, sir.
Q What time was that?
A I cannot remember, sir.

EVIDENCE

Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in
your office?
A When she came to my Office, she was relating
about that and she was even insulting me saying
among others that I was a useless fixture in that
Office because I cannot do anything with the
processing of her paper or application.
Q It says here that she would relate the
incident to you. Did she relate any incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went
to visit her school, he stole a kiss from her and
that she was saying that when she asked Supt.
Belagan for her papers, she was asked for a
date before the Indorsement. After that, she
left."30
With Magdalenas positive testimony and that of Ngabit, how can
we disregard the findings of the DECS and the CSC? Surely, we
cannot debunk it simply because of the Court of Appeals
outdated characterization of Magdalena as a woman of bad
reputation. There are a number of cases where the triers of fact
believe the testimony of a witness of bad character31 and refuse
to believe one of good character.32 As a matter of fact, even a
witness who has been convicted a number of times is worthy of
belief, when he testified in a straightforward and convincing
manner.33
At this juncture, it bears stressing that more than anybody else,
it is the DECS investigating officials who are in a better position
to determine whether Magdalena is telling the truth considering
that they were able to hear and observe her deportment and
manner of testifying.34
In reversing the CSCs Resolutions, the Court of Appeals ruled
that "there is ample evidence to show that Magdalena had a
motive" in accusing respondent, i.e., to pressure him to issue a
permit. This is unconvincing. The record shows that respondent
had already issued the permit when Magdalena filed her lettercomplaint. Indeed, she had no more reason to charge
respondent administratively, except of course to vindicate her
honor.
Petitioner prays that we sustain its ruling penalizing respondent
for grave misconduct and not merely for disgraceful or immoral

AGUSTIN, E.P. | 179

conduct which is punishable by suspension for six (6) months

and one (1) day to one (1) year for the first offense.35
Misconduct means intentional wrongdoing or deliberate violation
of a rule of law or standard of behavior, especially by a
government official.36 To constitute an administrative offense,
misconduct should relate to or be connected with the
performance of the official functions and duties of a public
officer.37 In grave misconduct as distinguished from simple
misconduct, the elements of corruption, clear intent to violate
the law or flagrant disregard of established rule, must be
manifest.38 Corruption as an element of grave misconduct
consists in the act of an official or fiduciary person who
unlawfully and wrongfully uses his station or character to
procure some benefit for himself or for another person, contrary
to duty and the rights of others.39 This is apparently present in
respondents case as it concerns not only a stolen kiss but also a
demand for a "date," an unlawful consideration for the issuance
of a permit to operate a pre-school. Respondents act clearly
constitutes grave misconduct, punishable by dismissal.40

WHEREFORE, the petition is GRANTED. The Decision of the

Court of Appeals dated January 8, 1998 in CA-G.R. SP No. 44180
is REVERSED. The CSC Resolution Nos. 966213 and 972423 are
AFFIRMED, subject to the modification that respondent
ALLYSON BELAGAN is SUSPENDED from office without pay
for ONE (1) YEAR, with full credit of his preventive suspension.
SO ORDERED.

Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago,

Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr.,
Azcuna*, Tinga, Chico-Nazario, and Garcia, JJ., concur.

We are, however, not inclined to impose the penalty of dismissal

from the service. Respondent has served the government for a
period of 37 years, during which, he made a steady ascent from
an Elementary Grade School Teacher to Schools Division
Superintendent. In devoting the best years of his life to the
education department, he received numerous awards.41 This is
the first time he is being administratively charged. He is in the
edge of retirement. In fact, he had filed his application for
retirement when Magdalena filed her complaint. Section 16, Rule
XIV, of the Rules Implementing Book V of Executive Order No.
292 provides:
"SEC. 16. In the determination of penalties to be
imposed, mitigating and aggravating circumstances
may be considered. x x x."
The mitigating circumstances are enumerated in Section 53, Rule
IV, of the Uniform Rules on Administrative Cases in the Civil
Service,42 which reads in part:
"SEC. 53. Extenuating, Mitigating, Aggravating, or
Alternative Circumstances. In the determination of
the penalties to be imposed, mitigating, aggravating
and alternative circumstances attendant to the
commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxx

xxx

j. length of service
xxx

xxx

l. and other analogous cases."

Conformably with our ruling in a similar case of sexual
harassment,43 and respondents length of service, unblemished
record in the past and numerous awards,44 the penalty of
suspension from office without pay for one (1) year is in order.
While we will not condone the wrongdoing of public officers and
employees, however, neither will we negate any move to
recognize and remunerate their lengthy service in the
government.

EVIDENCE

AGUSTIN, E.P. | 180

Republic of the Philippines

SUPREME COURT
Manila

death. Then he dressed up and left, walking casually to the

opposite direction of the subdivision before disappearing in the
darkness.8

SECOND DIVISION

Exhausted, Dominga slowly stood up, put on her clothes and

walked away in the direction of her house. Finding it locked, she
asked help from her neighbors who called the police. Thereafter,
Dominga was brought to Precinct No. 4 of Sasa, Davao City,
where SPO1 Stephen Batacan entered her complaint in the
police blotter. Later, she was examined by Dr. Floranne LamVergara at the Davao Medical Center who found her "positive for
spermatocytes."9

G.R. No. 130601

December 4, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAFAEL DIOPITA y GUZMAN, accused-appellant.
DECISION
BELLOSILLO, J.:
RAFAEL DIOPITA y GUZMAN appeals from the Decision of the
Regional Trial Court of Davao City finding him guilty of Robbery
with Rape, imposing upon him the penalty of reclusion perpetua
and ordering him to pay the victim, Dominga Pikit-pikit,
P8,500.00 for actual damages and P50,000.00 for moral
damages.1
Culled principally from the testimonies of Dominga Pikit-pikit and
PO3 Steve dela Cruz, the inculpatory facts follow: At about 9:00
o'clock in the evening of 16 April 1995 complaining witness
Dominga Pikit-pikit, 24 years old, was walking towards Emiville
Subdivision, Diversion Road, Sasa, Davao City, on her way home
from work. Suddenly, a man appeared from behind, looped his
arm around her neck and warned her not to shout or else she
would die.2 The man then dragged her through the banana
plantation towards the cornfields where the plants were a meter
high and far apart.3 When Dominga shouted for help, the man
pushed her to the ground and punched her on the stomach
saying, "Leche ka, why are you shouting? What do you want me
to do, make you unconscious?"4
Dominga Pikit-pikit got a good look at the man, who turned out
to be accused-appellant Rafael Diopita y Guzman, as he sat on
her thighs and proceeded to divest her of her belongings - ladies
watch, bracelet, ring with russian diamonds, wedding ring and
P1,000.00 cash. With the full moon shining on his face, the
victim clearly saw Diopita place the items on the right pocket of
his shorts.5
Thereafter, accused-appellant Diopita announced his desire to
have carnal knowledge of Dominga. Forthwith, he pulled up her
t-shirt and unfastened her brassiere. He also loosened her belt,
unzipped her pants and struggled to pull it down, nearly ripping
her zipper. Annoyed at the tightness of her pants, Diopita hit her
and ordered her to help him pull them down.6 Dominga, fearing
for her life and thinking of Diopitas punches, obeyed. She pulled
her pants to her hips. Then accused-appellant forcibly pulled
them down further and got irritated in fact when he was told
that she was wearing a girdle and panty. In frustration, he
punched her repeatedly and kept on muttering, "Why is this very
tight? What kind of panty is this?" Finally, he succeeded in
pulling the girdle and panty down.7
Accused-appellant Diopita then took off his shorts. He kissed the
victim, lasciviously caressed her breasts, bit her nipples, and
fornicated with her. As he was sexually assaulting her, Dominga
made desperate struggles and frantic calls for help but her
efforts proved futile until he finally satiated his lust. He then
warned Dominga not to tell anyone and that should he hear that
she told anybody about the incident he would shoot her to

EVIDENCE

PO3 Steve dela Cruz, who was on duty at the Intelligence and
Investigation Section, made a follow-up on the case. He went to
the victims house and interviewed her between the hours of
1:00 oclock and 3:00 oclock in the morning of the following
day, 17 April 1995. Dominga gave a description of the suspect
and his possible whereabouts.10 Acting on that information, PO3
dela Cruz went to the scene of the crime to investigate and there
he recovered a colored white/yellow, size ten (10) slipper. Since
the victim earlier disclosed that the suspect headed north after
committing the crime, he proceeded to that direction where he
came upon four (4) houses about fifteen (15) to fifty (50)
meters away from the scene of the crime. A back-up team was
called and they rounded up all the residents therein. Afterwards,
four (4) men who fitted the description of the suspect were
invited to the police station for questioning. They were Placido
Laput, William Silvano, Vicente Silvano and accused-appellant
Rafael Diopita y Guzman.11
At about 6:00 oclock in the morning of 17 April 1995, the police
invited Dominga to identify the suspect at the police station.
Thereat, Dominga saw the four (4) men in a police line-up and
readily pointed at accused-appellant.12 The police then had him
try on the recovered slipper; it easily fitted him.13 Thus, Diopita
was detained while the others were released.
The defense denied the charge and invoked alibi. Accusedappellant claimed that between 8:30 to 12:00 oclock in the
evening of 16 April 1995 he was with his wife Flora, son Ryan
and fellow Jehovahs Witnesses Roger Custorio and Ruben
Suarez at the house of Eulalio Nisnisan for an informal Bible
session upon the invitation of Juan Nisnisan.14 Accused-appellant
also claimed that during those hours, he never left the place.
Flora, Roger, Ruben, Eulalio and Juan corroborated his alibi and
testified on his good moral character as a ministerial servant of
their faith.
On 18 June 1997, the trial court formally rejected his defense of
alibi and convicted him of the crime charged; consequently,
accused-appellant is now before us on appeal. The trial court
ruled Alibi is a weak defense because it can easily be fabricated that it
is so easy for witnesses to get confused as to dates and time.
The precision with which the witnesses for the defense, who are
his co-members in the Jehovahs Witnesses, quoted the
respective hours when the participants in the Bible sharing
session supposedly arrived is, at best, self-serving and deserves
scant consideration because of the facility with which it may be
concocted and fabricated.
On the other hand, private complainant Dominga Pikit-Pikit
positively identified Rafael Diopita as the person who robbed and
raped her on April 16, 1995. She testified in a clear,
straightforward and convincing manner and no ill-motive on her

AGUSTIN, E.P. | 181

part had been shown to have prompted her to testify falsely.

The failure of the defense to attribute any ill-motive on the part
of Pikit-Pikit to pin responsibility on Diopita adds more credence
to complainants testimony.
In a long line of cases, it has been held that the defense of alibi
cannot prevail over the positive identification of the accused by
the victim. Pikit-Pikit testified that she was able to see the face
of her attacker because the moon was shining brightly that
evening. This Court takes judicial notice of the fact that in the
month of April 1995 the full moon came out on April 15, 1995, a
day before the date of the crime.
We affirm his conviction; the guilt of accused-appellant has been
established by the evidence beyond reasonable doubt.

First. Complaining witness Dominga Pikit-pikit positively and

categorically identified accused-appellant as her assailant, first

during the police line-up where she singled him out from among
the four (4) suspects and, later during the trial where she
pointed at accused-appellant as the one who robbed and
sexually molested her Q: Where did you go?
A: To the Police Station, there were four persons who lined up
for identification.
Q: And then?
A: First, when I arrived, I peeped behind the place where there
were four persons lining up. After that I went to the place where
they were receiving visitors and I saw the four persons who
were there already and lined up.
Q: And then?
A: After that the police told me to identify the person who
molested me, and I pointed to that person there (witness
pointing to the accused whom she previously identified).15
From the circumstances of this case, it cannot be denied that
complaining witness Dominga Pikit-pikit had a good look at the
face and physical features of accused-appellant during the
commission of the crime. While the robbery was in progress, the
moonlight sufficiently illumined his face and clothes, thus making
it possible for private complainant to identify him.16 During the
rape, private complainant was as close to accused-appellant as
was physically possible, for a man and a woman cannot be more
physically close to each other than during a sexual act.17 Victims
of criminal violence naturally strive to know the identity of their
assailants and observe the manner the crime was perpetrated,
creating a lasting impression which may not be erased easily in
their memory.18 There is therefore no reason to doubt the
accuracy of private complainants visual perception of accusedappellant as the criminal. Nor is there any reason to doubt her
honesty of intention for there is no showing that she implicated
accused-appellant due to an evil or corrupt motive.
We do not subscribe to accused-appellants contentions that the
complaining witness hesitated to point at him during the police
line-up, and that she was just forced by the police to choose him
from among the four (4) suspects. The identification was made
with such certainty by the complaining witness that even
accused-appellant had to comment on it -

EVIDENCE

Atty. Galicia: What made you say she was hesitant to point at
you? x x x x
Rafael Diopita: Because during that time, sir, when we
confronted each other in the police station, she was looking at
me when there were four of us there. So, I asked why x x x x19
The foregoing testimony belied the allegation of hesitancy on the
part of Dominga Pikit-pikit to pinpoint accused-appellant during
the line-up. His very own words project his guilt as well. Only
the guilty experiences neurotic fear in the face of imminent
discovery of his malefaction. His paranoia colors his
interpretation of the events during the line-up. Consider
accused-appellants assertion that Dominga Pikit-pikit was forced
by the police to point at him, and Prosecutor Esparagoza's
objection thereto Sur-rebuttal of Atty. Galicia: Mr. Diopita, according to private
complainant Dominga Pikit-pikit during her rebuttal testimony
that she was not forced by the police to point at you when you
were in the police station. What can you say to that?
Rafael Diopita: That woman hesitated to point at me but the
police said you point at him.
Q: What made you say she was hesitant to point at you?
Prosecutor Esparagoza: The witness said "ITUDLO! ITUDLO!"
(YOU POINT! YOU POINT!). He did not say he was the one
pointed to, your Honor.20
Gleaned from the aforequoted testimony was the absence of
suggestiveness in the identification process. There were four (4)
men in the line-up and the police did not specifically suggest to
Dominga to point particularly at accused-appellant. Not even the
shodding of the slipper recovered from the scene of the crime
could provide any suggestiveness to the line-up as it came after
accused-appellant was already identified by Dominga Pikit-pikit.

Second. In light of this positive and direct evidence of accusedappellants culpability, the trial court correctly discarded his
defense of alibi. It is an elementary rule that alibi cannot prevail
over the clear and positive identification of the accused as the
very person who committed the crime. Moreover, in order to
justify an acquittal based on this defense, the accused must
establish by clear and convincing evidence that (a) he 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 scene of the
crime at the time it was committed.21 This, accused-appellant
miserably failed to do.

Accused-appellant admitted that at the time in question he was

with his wife, son and fellow members of the Jehovahs
Witnesses at the house of one Eulalio Nisnisan supposedly
attending Bible studies, which is merely fifteen (15) to fifty (50)
meters away from the crime scene. Considering the short and
insignificant distance, it was not impossible for accused-appellant
to surreptitiously slip away from the house of Nisnisan, commit
the crime and then return without arousing the suspicion of his
companions who were then busy with their Bible session. This is
obviously the situation in this case and, taken together with the
preceding considerations, we likewise reject this poor and
discredited defense as did the trial court. Verily, even if the
defense of alibi is corroborated by the testimony of the friends of
accused-appellant, it deserves the barest consideration and will
not be given weight if it would not preclude any doubt that he

AGUSTIN, E.P. | 182

could have been physically present at the locus criminis or its

immediate vecino at the time of its commission.22

deserves scant consideration because of the facility with which it

may be concocted and fabricated (underscoring supplied).

Third. Perhaps aware of the crushing impact of complainants

The matter of assigning values to the declarations of witnesses

is best and most competently performed by the trial court who
had the unmatched opportunity to observe the demeanor of
witnesses while testifying, and to assess their credibility using
various indicia available but not reflected in the records.25
Hence, the court a quo's appraisal on the matter is entitled to
the highest respect, and will not be disturbed on appeal unless
there is a clear showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance
that would affect the result of the case.26 There is no compelling
reason in the present case to depart from this rule.

positive identification of accused-appellant, the defense attacked

the supposed inconsistencies and discrepancies in her testimony
in a vain attempt to make it completely unreliable, claiming that:
(a) the victim declared that the culprit wore short pants with a
zipper, and he had no short pants with zipper; (b) the yellow
slipper retrieved by the police did not belong to him as his
slippers were colored blue, with his initials inscribed thereon;
and, (c) the description given by complainant in the police
blotter did not fit the physical appearance of accused-appellant.
We are not persuaded. Suffice it to say that these are mere
trifles which do not detract from complainants straightforward
and consistent identification of accused-appellant as the one
who robbed and raped her. Trivial inconsistencies do not shake
the pedestal upon which the complainants credibility rests. On
the contrary, they are taken as badges of truth rather than as
indicia of falsehood for they manifest spontaneity and erase any
suspicion of a rehearsed testimony.23 Furthermore, entries in
police blotters should not be given undue significance or
probative value for they are normally incomplete and inaccurate,
sometimes from either partial suggestion or want of suggestion
or inquiry.24

Fourth. We now deal with the more substantial arguments raised

by accused-appellant in his brief. He tenaciously maintains that it

was impossible for him to have committed the crime charged
since he is a person of good moral character, holding as he does
the position of "Ministerial Servant" in the congregation of
Jehovahs Witnesses, and that he is a godly man, a righteous
person, a responsible family man and a good Christian who
preaches the word of God.
We are not impressed. The fact that accused-appellant is
endowed with such "sterling" qualities hardly justifies the
conclusion that he is innocent of the crime charged. Similarly, his
having attained the position of "Ministerial Servant" in his faith is
no guarantee against any sexual perversion and plunderous
proclivity on his part. Indeed, religiosity is not always an emblem
of good conduct, and it is not the unreligious alone who
succumbs to the impulse to rob and rape. An accused is not
entitled to an acquittal simply because of his previous good
moral character and exemplary conduct. The affirmance or
reversal of his conviction must be resolved on the basic issue of
whether the prosecution had discharged its duty of proving his
guilt beyond any peradventure of doubt. Since the evidence of
the crime in the instant case is more than sufficient to convict,
the evidence of good moral character of accused-appellant is
unavailing.

In sum, we find that all the elements of robbery with rape are
present in this case. There was asportation of the jewelry and
cash of the victim by means of force and violence on her person,
showing the initial animus lucrandi of accused-appellant,27 and
then his lecherous intent when he raped his victim. Accordingly,
we hold that the court below did not commit any reversible error
in ruling that the requisite quantum of evidence for a finding of
guilt has been sufficiently met by the prosecution as to call for
our affirmance of the judgment of the court a quo.28
However, in addition to the actual and moral damages awarded
by the trial court in the amounts of P8,500.00 and P50,000.00,
respectively, another amount of P50,000.00 should have also
been awarded to the victim Dominga Pikit-pikit for civil
indemnity, as it is mandatory upon a conviction of rape. Such
indemnity is distinct from moral damages and based on different
jural foundations.29
WHEREFORE, the assailed Decision of the Regional Trial Court
of Davao City, convicting accused-appellant RAFAEL DIOPITA y
GUZMAN of ROBBERY WITH RAPE, sentencing him to reclusion
perpetua, and ordering him to pay DOMINGA PIKIT-PIKIT the
sums of P8,500.00 for actual damages and P50,000.00 for moral
damages, is AFFIRMED with the MODIFICATION that, in
addition, civil indemnity of another P50,000.00 is further
awarded to her. Costs against accused-appellant.
SO ORDERED.
Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Accused-appellant likewise bewails and assigns as reversible

error the failure of the trial court to give credence to the
testimonies of the defense witnesses. He argues that these are
Jehovahs Witnesses, and as such, they are God-fearing people
who would never lie as to his whereabouts at the time in
question. This argument is as puerile as the first. We quote once
more, and with approval, the pertinent portion of the trial courts
ruling on this point x x x x it is so easy for witnesses to get confused as to dates
and time.1wphi1 The precision with which the witnesses for the
defense, who are his co-members in the Jehovahs Witnesses,
quoted the respective hours when the participants in the Bible
sharing session supposedly arrived is, at best, self-serving and

EVIDENCE

AGUSTIN, E.P. | 183

RULE 131: Burden of Proof and Presumptions

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 144773

May 16, 2005

AZNAR BROTHERS REALTY COMPANY, petitioner,

vs.
LAURENCIO AYING, IN HIS OWN BEHALF AND IN
BEHALF OF THE OTHER HEIRS OF EMILIANO AYING,
PAULINO AYING, IN HIS OWN BEHALF AND IN BEHALF
OF THE OTHER HEIRS OF SIMEON AYING, AND
WENCESLAO SUMALINOG, IN HIS OWN BEHALF AND IN
BEHALF OF THE OTHER HEIRS OF ROBERTA AYING,
respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the petition for review on certiorari seeking the
modification of the Decision1 of the Court of Appeals (CA) dated
March 7, 2000 which affirmed with modification the Decision of
the Regional Trial Court (RTC) of Lapu-Lapu City, Branch 27 in
Civil Case No. 2930-L; and the Resolution dated August 2, 2000
denying petitioners motion for reconsideration of the
aforementioned decision.
The antecedent facts are as follows:
The disputed property is Lot No. 4399 with an area of 34,325
square meters located at Dapdap, Lapu-Lapu City. Crisanta
Maloloy-on petitioned for the issuance of a cadastral decree in
her favor over said parcel of land. After her death in 1930, the
Cadastral Court issued a Decision directing the issuance of a
decree in the name of Crisanta Maloloy-ons eight children,
namely: Juan, Celedonio, Emiliano, Francisco, Simeon, Bernabe,
Roberta and Fausta, all surnamed Aying. The certificate of title
was, however, lost during the war.
Subsequently, all the heirs of the Aying siblings executed an
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale
dated March 3, 1964, conveying the subject parcel of land to
herein petitioner Aznar Brothers Realty Company. Said deed was
registered with the Register of Deeds of Lapu-Lapu City on
March 6, 1964 under Act No. 3344 (the law governing
registration for unregistered land), and since then, petitioner had
been religiously paying real property taxes on said property.
In 1988, herein petitioner filed a Petition for Reconstitution of
the Original Title as the original title over the subject property
had been lost during the war. On April 12, 1988, the court
granted said petition, thereby directing the Register of Deeds of
Lapu-Lapu City to issue a reconstituted title in the name of the
abovementioned Aying siblings. Thus, Original Certificate of Title
(OCT) No. RO-2856 was issued.

In 1991, petitioner, claiming to be the rightful owner of the

subject property, sent out notices to vacate, addressed to
persons occupying the property. Unheeded, petitioner then filed
a complaint for ejectment against the occupants before the
Metropolitan Trial Court (MTC), Lapu-Lapu City.
On February 1, 1994, the MTC ordered the occupants to vacate
the property. The case eventually reached this Court, docketed
as G.R. No. 128102, entitled Aznar Brothers Realty Company vs.

Court of Appeals, Luis Aying, Demetrio Sida, Felomino Augusto,

Federico Abing, and Romeo Augusto.2 On March 7, 2000, a

Decision was promulgated in favor of herein petitioner, declaring

it as the rightful possessor of the parcel of land in question.
Meanwhile, herein respondents, along with other persons
claiming to be descendants of the eight Aying siblings, all in all
numbering around 220 persons, had filed a complaint for
cancellation of the Extra-Judicial Partition with Absolute Sale,
recovery of ownership, injunction and damages with the RTC of
Lapu-Lapu City. The complaint was dismissed twice without
prejudice. Said complaint was re-filed on August 19, 1993,
docketed as Civil Case No. 2930-L.
In their amended complaint, herein respondents (plaintiffs
before the RTC) alleged that: they are co-owners of subject
property, being descendants of the registered owners thereof
under OCT No. RO-2856; they had been in actual, peaceful,
physical, open, adverse, continuous and uninterrupted
possession in concept of owner of subject parcel of land since
time immemorial; their possession was disturbed only in the last
quarter of 1991 when some of them received notices to vacate
from petitioner and several weeks thereafter, earthmoving
equipment entered the disputed land, bulldozing the same and
destroying plants, trees and concrete monuments ("mohon");
respondents discovered that such activities were being
undertaken by petitioner together with Sta. Lucia Realty and
Development, Inc.; petitioner claimed to be the owner of subject
property by virtue of an extra-judicial partition of real estate with
deed of absolute sale executed in petitioners favor by the
alleged heirs of Crisanta Maloloy-on; the aforementioned extrajudicial partition of real estate with deed of absolute sale is a
fraud and is null and void ab initio because not all the co-owners
of subject property affixed their signature on said document and
some of the co-owners who supposedly signed said document
had been dead at the time of the execution thereof; petitioner
entered subject land in bad faith, knowing fully well that it did
not have any right to the land and used force, threat and
intimidation against respondents; and they suffered moral
damages.3
Petitioner (defendant before the RTC) filed its Answer, denying
that respondents are the lawful owners of subject parcel of land
by virtue of their being descendants or heirs of the registered
owners of subject property. Instead, petitioner alleged that it
had been in actual possession of subject land as owner thereof
by virtue of the extra-judicial partition of real property and deed
of absolute sale executed in its favor; that in fact, it had been
paying taxes thereon religiously; that it tolerated about 6
persons to live on said land but said persons were eventually
ejected by court order. Petitioner then raised the affirmative
defenses of failure to state cause of action and prescription, as it
took respondents 27 years, 10 months and 27 days to file the
action to recover subject property, when an action to recover
property based on an implied trust should be instituted within 4
years from discovery of the fraud.4
In the Pre-Trial Order dated January 30, 1995 of the RTC, the
issues were narrowed down to the following:

EVIDENCE

AGUSTIN, E.P. | 184

1. Whether or not the plaintiffs [herein respondents]

are the heirs of the registered owners of Lot No.
4399.

The Motion for Contempt filed by the plaintiffs against

defendants is dismissed for want of factual and legal
basis.

2. Whether or not plaintiffs are the owners of Lot No.

4399.

Costs against the plaintiffs.

3. Whether or not the defendant Aznar [herein

petitioner] is estopped to make any claim on Lot No.
4399.
4. Whether or not the defendant Aznar is a builder in
bad faith.
5. Whether or not the defendants are liable for
damages and attorneys fees in favor of the plaintiffs.
6. Whether or not the Extra-Judicial Partition of Real
Estate with Deed of Absolute Sale is valid and had, in
effect, validly conveyed to defendant Aznar Lot No.
4399.
7. Whether
prescribed.5

or

not

the

plaintiffs

action

has

After trial, the RTC rendered a Decision dated July 4, 1997,

ruling that respondents evidence failed to prove that the extrajudicial partition with deed of absolute sale was a totally
simulated or fictitious contract and concluded that said
document is valid, thus, effectively conveying to petitioner the
property in question. It further held that respondents action had
prescribed in that the action is considered as one for
reconveyance based on implied or constructive trust, it
prescribed in 10 years from the registration of the deed on
March 6, 1964; and if the action is considered as one for
annulment of contract on the ground of fraud, it should have
been filed within 4 years from discovery of the fraud. The trial
court also ruled that respondents failed to present any
admissible proof of filiation, hence, they were not able to prove
that they are indeed heirs of the eight Aying siblings who appear
as the registered owners under OCT No. RO-2856.
The dispositive portion of the RTC Decision reads as follows:
WHEREFORE, judgment is hereby rendered dismissing
the amended complaint on the ground of prescription,
and declaring the Extra-Judicial Partition of Real
Estate with Deed of Absolute Sale dated March 3,
1964 as valid and binding, adjudging that Lot 4399
with an area of 34,325 square meters located at
Dapdap, Mactan, Lapu-Lapu City had been validly
conveyed to and in favor of Aznar Brothers Realty
Company, and directing the Register of Deeds of
Lapu-Lapu City to register the above-mentioned deed
in accordance with law and to cancel Original
Certificate of Title No. RO-2856, and to issue a
transfer certificate of title in the name of Aznar
Brothers Realty Company upon payment of the
necessary registration fees pursuant thereto.
The Writ of Preliminary Injunction issued in this case
is hereby ordered dissolved.

EVIDENCE

SO ORDERED.6
Herein respondents appealed the foregoing decision to the CA
and on March 7, 2000, said court promulgated its Decision, the
dispositive portion of which is reproduced hereunder:
THE FOREGOING CONSIDERED, the contested
Decision while AFFIRMED is hereby MODIFIED. The
heirs of Emiliano Aying, Simeon Aying and Roberta
Aying are hereby declared as the lawful owners of the
contested property but equivalent only to 3/8.
SO ORDERED.
In modifying the RTC judgment, the CA ratiocinated that "an
action for recovery of possession of registered land never
prescribes in view of the provision of Section 44, Act No. 496
(now Sec. 47, PD 1520), to the effect that no title to registered
land in derogation to that of a registered owner shall be acquired
by prescription." The CA further ruled that even if the action is
deemed to be based on implied trust, prescription did not begin
to run since there is no evidence that positive acts of repudiation
were made known to the heirs who did not participate in the
execution of the Extra-Judicial Partition of Real Estate with Deed
of Absolute Sale. Thus, striking down the RTCs ruling that the
respondents complaint is dismissible on the ground of
prescription, the CA held instead that herein respondents action
had not prescribed but upheld the validity of the Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale, except as to
the shares of the heirs of Emiliano, Simeon and Roberta, who
did not participate in the execution of said document.
Herein petitioners motion for reconsideration of the CA decision
was denied per Resolution dated August 2, 2000.
Hence, the present petition for review on certiorari assailing the
CA decision on the following grounds:
I
THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT AN HEIR OF THE ORIGINAL
REGISTERED OWNER MAY LOSE HIS RIGHT TO
RECOVER A TITLED PROPERTY BY REASON OF
LACHES;
II
THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT THE ACT OF REGISTRATION
OF THE DEED OF PARTITION WITH SALE MAY BE
CONSIDERED AN UNEQUIVOCAL REPUDIATION OF
THE TRUST GIVING RISE TO PRESCRIPTION;
III

AGUSTIN, E.P. | 185

THE COURT OF APPEALS ERRED IN FAILING TO

APPLY THE PROVISIONS OF ARTICLE 1104 OF THE
CIVIL CODE TO THE EFFECT THAT IN THE ABSENCE
OF BAD FAITH OR FRAUD, THE PARTITION WITH
PRETERITION OF ANY COMPULSORY HEIR SHALL
NOT BE RESCINDED.7
In their Comment, respondents argue that this case is an action
to declare as null and void the Extra-Judicial Partition of Real
Estate with Deed of Absolute Sale, hence, under Article 1410 of
the Civil Code, an action for declaration of an inexistent contract
does not prescribe. Respondents further posit that the principle
of laches should be applied against petitioner and not against
them, as they (respondents) had been in actual possession of
the subject property, while petitioner merely brought action to
eject them more than 29 years after the alleged execution of the
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale.
They also refuted petitioners arguments regarding the
application of the principles of implied and constructive trusts in
this case.
At the outset, it should be stressed that not all the plaintiffs who
filed the amended complaint before the trial court had been
impleaded as respondents in the present petition. The only
parties impleaded are the heirs of Emiliano, Simeon and Roberta
Aying, whom the CA adjudged as owners of a 3/8 portion of the
land in dispute for not having participated in the execution of the
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale.
It is significant to note that herein petitioner does not question
the CA conclusion that respondents are heirs of the
aforementioned three Aying siblings. Hence, the trial court and
appellate courts findings that the Extra- Judicial Partition of Real
Estate with Deed of Absolute Sale was not forged nor simulated
and that the heirs of Emiliano, Simeon and Roberta Aying did not
participate in the execution thereof, are now beyond cavil.
The issues raised by petitioner for the Courts resolution are (1)
whether or not respondents cause of action is imprescriptible;
and (2) if their right to bring action is indeed imprescriptible,
may the principle of laches apply.
Respondents alleged in their amended complaint that not all the
co-owners of the land in question signed or executed the
document conveying ownership thereof to petitioner and made
the conclusion that said document is null and void. We agree
with the ruling of the RTC and the CA that the Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale is valid and
binding only as to the heirs who participated in the execution
thereof, hence, the heirs of Emiliano, Simeon and Roberta Aying,
who undisputedly did not participate therein, cannot be bound
by said document.
However, the facts on record show that petitioner acquired the
entire parcel of land with the mistaken belief that all the heirs
have executed the subject document. Thus, the trial court is
correct that the provision of law applicable to this case is Article
1456 of the Civil Code which states:
ART. 1456. If property is acquired through mistake or
fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit
of the person from whom the property comes.
In Vda. De Esconde vs. Court of Appeals,8 the Court expounded
thus:

EVIDENCE

Construing this provision of the Civil Code, in

Philippine National Bank v. Court of Appeals, the
Court stated:
A deeper analysis of Article 1456 reveals
that it is not a trust in the technical sense
for in a typical trust, confidence is reposed
in one person who is named a trustee for
the benefit of another who is called the
cestui que trust, respecting property which
is held by the trustee for the benefit of the
cestui que trust. A constructive trust,
unlike an express trust, does not emanate
from, or generate a fiduciary relation.
While in an express trust, a beneficiary and
a trustee are linked by confidential or
fiduciary relations, in a constructive trust,
there is neither a promise nor any fiduciary
relation to speak of and the so-called
trustee neither accepts any trust nor
intends holding the property for the
beneficiary.9
The concept of constructive trusts was further elucidated in the
same case, as follows:
. . . implied trusts are those which, without being
expressed, are deducible from the nature of the
transaction as matters of intent or which are
superinduced on the transaction by operation of law
as matters of equity, independently of the particular
intention of the parties. In turn, implied trusts are
either resulting or constructive trusts. These two are
differentiated from each other as follows:
Resulting trusts are based on the equitable
doctrine that valuable consideration and
not legal title determines the equitable title
or interest and are presumed always to
have been contemplated by the parties.
They
arise
from
the
nature
of
circumstances
of
the
consideration
involved in a transaction whereby one
person thereby becomes invested with
legal title but is obligated in equity to hold
his legal title for the benefit of another. On
the other hand, constructive trusts are
created by the construction of equity
in order to satisfy the demands of
justice
and
prevent
unjust
enrichment. They arise contrary to
intention against one who, by fraud,
duress or abuse of confidence,
obtains or holds the legal right to
property which he ought not, in
equity and good conscience, to hold.10
(Emphasis supplied)
Based on such concept of constructive trusts, the Court ruled in
said case that:
The rule that a trustee cannot acquire by prescription
ownership over property entrusted to him until and
unless he repudiates the trust, applies to express
trusts and resulting implied trusts. However, in
constructive implied trusts, prescription may
supervene even if the trustee does not repudiate the
relationship. Necessarily, repudiation of said trust is

AGUSTIN, E.P. | 186

not a condition precedent to the running of the

prescriptive period.11
The next question is, what is the applicable prescriptive period?
In Amerol vs. Bagumbaran,12 the Court expounded on the
prescriptive period within which to bring an action for
reconveyance of property based on implied or constructive trust,
to wit:
. . . under the present Civil Code, we find that just as
an implied or constructive trust is an offspring of the
law (Art. 1456, Civil Code), so is the corresponding
obligation to reconvey the property and the title
thereto in favor of the true owner. In this context,
and vis--vis prescription, Article 1144 of the Civil
Code is applicable.
Article 1144. The following actions must be
brought within ten years from the time the
right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment.
xxx

xxx

xxx

An action for reconveyance based on an implied or

constructive trust must perforce prescribe in ten years
and not otherwise. A long line of decisions of this
Court, and of very recent vintage at that, illustrates
this rule. Undoubtedly, it is now well-settled that an
action for reconveyance based on an implied or
constructive trust prescribes in ten years from the
issuance of the Torrens title over the property.13
It has also been ruled that the ten-year prescriptive period
begins to run from the date of registration of the deed or the
date of the issuance of the certificate of title over the property,
but if the person claiming to be the owner thereof is in actual
possession of the property, the right to seek reconveyance,
which in effect seeks to quiet title to the property, does not
prescribe.14
In the present case, respondents Wenceslao Sumalinog, an heir
of Roberta Aying; Laurencio Aying, an heir of Emiliano Aying;
and Paulino Aying, an heir of Simeon Aying, all testified that they
had never occupied or been in possession of the land in
dispute.15 Hence, the prescriptive period of ten years would
apply to herein respondents.
The question then arises as to the date from which the ten-year
period should be reckoned, considering that the Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale was
registered under Act No. 3344 and not under Act No. 496 (Land
Registration Act), despite the fact the land in dispute was
already titled under Act No. 496 in the names of the Aying
siblings at the time the subject document was executed.
In Spouses Abrigo vs. De Vera,16 it was held that registration of
instruments must be done in the proper registry, in order to

EVIDENCE

affect and bind the land and, thus, operate as constructive

notice to the world.17 Therein, the Court ruled:
x x x If the land is registered under the Land
Registration Act (and has therefore a Torrens Title),
and it is sold but the subsequent sale is registered not
under the Land Registration Act but under Act 3344,
as amended, such sale is not considered REGISTERED
x x x .18
In this case, since the Extra-Judicial Partition of Real Estate with
Deed of Absolute Sale was registered under Act No. 3344 and
not under Act No. 496, said document is deemed not registered.
Accordingly, the ten-year prescriptive period cannot be reckoned
from March 6, 1964, the date of registration of the subject
document under Act No. 3344. The prescriptive period only
began to run from the time respondents had actual notice of the
Extra-Judicial Partition of Real Estate with Deed of Absolute Sale.
The only evidence on record as to when such prescriptive period
commenced as to each of the respondents are Wenceslao
Sumalinogs (heir of Roberta Aying) testimony that about three
years after 1964, they already learned of the existence of the
Extra-Judicial Partition of Real Estate with Deed of Absolute
Sale;19 and Laurencio Ayings (heir of Emiliano Aying) admission
that he found out about the sale of the land in dispute a long
time ago and can only estimate that it must be after martial
law.20 Paulino Aying (heir of Simeon Aying) gave no testimony
whatsoever as to when the children of Simeon Aying actually
learned of the existence of the document of sale. On the other
hand, petitioner did not present any other evidence to prove the
date when respondents were notified of the execution of the
subject document.
In view of the lack of unambiguous evidence of when the heirs
of Emiliano Aying and Simeon Aying discovered the existence of
the document of sale, it must be determined which party had
the burden of proof to establish such fact.
The test for determining where the burden of proof lies is to ask
which party to an action or suit will fail if he offers no evidence
competent to show the facts averred as the basis for the relief
he seeks to obtain.21 Moreover, one alleging a fact that is denied
has the burden of proving it and unless the party asserting the
affirmative of an issue sustains the burden of proof of that issue
by a preponderance of the evidence, his cause will not
succeed.22 Thus, the defendant bears the burden of proof as to
all affirmative defenses which he sets up in answer to the
plaintiffs claim or cause of action; he being the party who
asserts the truth of the matter he has alleged, the burden is
upon him to establish the facts on which that matter is
predicated and if he fails to do so, the plaintiff is entitled to a
verdict or decision in his favor.23
In the case at bar, it was petitioner, as the defendant before the
RTC, which set up in its Answer the affirmative defense of
prescription. It was, therefore, incumbent upon petitioner to
prove the date from which the prescriptive period began to run.
Evidence as to the date when the ten-year prescriptive period
began exists only as to the heirs of Roberta Aying, as Wenceslao
Sumalinog admitted that they learned of the existence of the
document of sale in the year 1967. As to the heirs of Emiliano
Aying and Simeon Aying, there is no clear evidence of the date
when they discovered the document conveying the subject land
to petitioner. Petitioner miserably failed to adduce proof of when
the heirs of Emiliano Aying and Simeon Aying were notified of
the subject document. Hence, with regard to said heirs, the
Court may consider the admission in the amended complaint

AGUSTIN, E.P. | 187

that they learned of the conveyance of the disputed land only in

1991 when petitioner sent notices to vacate to the occupants of
the subject land, as the date from which the ten-year
prescriptive period should be reckoned.
Respondents filed their Amended Complaint on December 6,
1993.24 Thus, with regard to respondent heirs of Roberta Aying
who had knowledge of the conveyance as far back as 1967, their
cause of action is already barred by prescription when said
amended complaint was filed as they only had until 1977 within
which to bring action. As to the respondent heirs of Emiliano and
Simeon Aying, they were able to initiate their action for
reconveyance of property based on implied or constructive trust
well within the ten-year prescriptive period reckoned from 1991
when they were sent by petitioner a notice to vacate the subject
property.
Evidently, laches cannot be applied against respondent heirs of
Emiliano and Simeon Aying, as they took action to protect their
interest well within the period accorded them by law.
With regard to petitioners argument that the provision of Article
1104 of the Civil Code, stating that a partition made with
preterition of any of the compulsory heirs shall not be rescinded,
should be applied, suffice it to say that the Extra-Judicial
Partition of Real Estate with Deed of Absolute Sale is not being
rescinded. In fact, its validity had been upheld but only as to the
parties who participated in the execution of the same. As
discussed above, what was conveyed to petitioner was
ownership over the shares of the heirs who executed the subject
document. Thus, the law, particularly, Article 1456 of the Civil
Code, imposed the obligation upon petitioner to act as a trustee
for the benefit of respondent heirs of Emiliano and Simeon Aying
who, having brought their action within the prescriptive period,
are now entitled to the reconveyance of their share in the land in
dispute.
IN VIEW OF THE FOREGOING, the petition is PARTIALLY
GRANTED and the Decision of the Court of Appeals dated March
7, 2000 is MODIFIED, as follows: The amended complaint of the
heirs of Roberta Aying is DISMISSED on the ground of
prescription. However, the heirs of Emiliano Aying and Simeon
Aying, having instituted the action for reconveyance within the
prescriptive period, are hereby DECLARED as the LAWFUL
OWNERS of a 2/8 portion of the parcel of land covered by
Original Certificate of Title No. RO-2856.
SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ.,

concur.

EVIDENCE

AGUSTIN, E.P. | 188

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 156320

February 14, 2007

RODOLFO ABENES y GACUTAN, Petitioner,

vs.
THE HON. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision1 dated November 29,
2002 of the Court of Appeals (CA) which affirmed the Joint
Decision of the Regional Trial Court (RTC) of Pagadian City,
Branch 19, dated June 5, 2000, finding Rodolfo Abenes y
Gacutan (petitioner) guilty beyond reasonable doubt of Illegal
Possession of High Powered Firearm and Ammunition under
Presidential Decree No. 1866 (P.D. No. 1866) in Criminal Case
No. 4559-98, and of violating Section 261(q) of Batas Pambansa
Blg. 881 (B.P. Blg. 881), otherwise known as the Omnibus
Election Code, vis--vis COMELEC Resolution No. 2958 (Gun
Ban) in Criminal Case No. 4563-98.
Petitioner was charged under the following Informations:
In Criminal Case No. 4559-98
The undersigned Assistant City Prosecutor hereby accuses
RODOLFO ABENES Y GACUTAN of the offense of ILLEGAL
POSSESSION OF HIGH POWERED FIREARM & ITS
AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A.
No. 8294), committed as follows:
On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian
City, Philippines, within the jurisdiction of this Honorable Court,
said RODOLFO ABENES Y GACUTAN did, then and there,
willfully, unlawfully, and without any prior authority, license or
permit to possess or carry the firearm hereunder described, have
in his possession and control the following firearm classified as
high powered, with its corresponding ammunitions and
accessory, viz:
- one (1) cal. 45 pistol (NORINCO) bearing SN
906347;
- one (1) magazine for pistol cal. 45
- seven (7) rounds live ammunitions for cal. 45,
in gross violation of P.D. No. 1866 as amended by R.A. No.
8294.
CONTRARY TO LAW.2
In Criminal Case No. 4563-98

EVIDENCE

The undersigned Assistant City Prosecutor hereby accuses

RODOLFO ABENES Y GACUTAN of Election Offense in violation of
Sec. 261 (9)3 , BP 881 (OMNIBUS ELECTION CODE), vis--vis
COMELEC RESOLUTION # 1958 (GUN BAN), committed as
follows:
On May 8, 1998, at about 10:30 a.m. within the Election period
which is from January 11, 1998 to June 30, 1998, in Danlugan,
Pagadian City, Philippines, within the jurisdiction of this
Honorable Court, said RODOLFO ABENES Y GACUTAN did, then
and there, willfully, and unlawfully, carry in his person a cal. .45
(NORINCO) pistol, bearing serial number 906347, and loaded
with seven (7) rounds of live ammunitions, without any prior
authority from the COMELEC in gross violation of Sec. 261 (9) of
BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC
RESOLUTION No. 2958 (GUN BAN).
CONTRARY TO LAW.4
Upon arraignment, the petitioner pleaded not guilty. Trial
ensued.
The facts, as found by the RTC and summarized by the CA, are
as follows:
The prosecution showed that three days prior to the May 11,
1998 national and local elections, the Philippine National Police
(PNP) of Pagadian City, through its Company Commander Major
Pedronisto Quano, created a team composed of seven policemen
with a directive to establish and man a checkpoint in Barangay
Danlugan at said city, for the purpose of enforcing the Gun Ban
which was then being implemented by the COMELEC. SPO3
Cipriano Q. Pascua was the designated team leader.
The team proceeded to Barangay Danlugan, arriving thereat at
8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua
coordinated with the Barangay Chairman of Danlugan, and the
team put up a road block with the marking "COMELEC GUN
BAN". Vehicles passing through the road block were required by
the team to stop and their occupants were then politely
requested to alight in order to allow routine inspection and
checking of their vehicles. Motorists who refused the request
were not forced to do so.
At about 10:30 in the morning of the same day, a red Tamaraw
FX trying to pass through the check point was stopped by the
team and directed to park at the side of the road. As the
occupants within the vehicle could not be seen through its tinted
windows, SPO1 Eliezer Requejo, a member of the team, knocked
on the vehicles window and requested the occupants to step
down for a routine inspection. The eight occupants, which
included the accused-appellant Rodolfo Abenes who is the
Barangay Chairman of Tawagan Norte, Labangan, Zamboanga
Del Sur, alighted from the vehicle. At this juncture, SPO1
Requejo and SPO3 Pascua noticed that a holstered firearm was
tucked at the right waist of Abenes. The firearm was readily
visible to the policemen; it was not covered by the shirt worn by
Abenes. Abenes was then asked by SPO3 Pascua whether he
had a license and authority to carry the firearm, and whether his
possession was exempted from the Gun Ban being enforced by
the COMELEC. Accused answered in the affirmative. The
policemen then demanded for the pertinent documents to be
shown to support Abenes claim. He could not show any. Hence,
SPO1 Requejo confiscated Abenes firearm, which was later
identified as a Norinco .45 caliber pistol bearing Serial No.
906347, including its magazine containing seven live
ammunitions.

AGUSTIN, E.P. | 189

Subsequently SPO3 Pascua, using his privately owned jeep,

brought Abenes to the PNP Headquarters at Camp Abelon in
Pagadian City. Upon reaching the Headquarters, SPO3 Pascua
indorsed Abenes to Major Quano who in turn referred Abenes to
a certain SPO2 Benvienido Albon for further investigation (TSN,
August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1
Eliezer Requejo] pp. 29-50).
A certification dated May 18, 1998 from the Firearms and
Explosives License Processing Section of the PNP, Pagadian City
disclosed that Abenes is not a registered nor a licensed firearm
holder (Record of Criminal Case No. 4559-98, p. 56).
After the prosecution presented its evidence, [the] accused filed
a Demurrer to Evidence with Motion to Dismiss (supra, pp. 7279), which was denied by the trial court in a Resolution dated
March 5, 1999 (supra, pp. 80-82).
In his defense, accused-appellant tried to establish that the
firearm did not belong to and was not recovered from him; that
the firearm was recovered by the policemen from the floor of the
vehicle inside a clutch bag which was allegedly left by an
unidentified person who hitched a ride somewhere along the
national highway of Tawagan Norte Zamboanga Del Sur and
alighted near the Mabuhay Bazaar in Pagadian City (TSN, July
12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999 [Rodolfo
Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado
Gengania], pp. 9-16).5
On June 5, 2000, the RTC rendered its Joint Decision convicting
the petitioner on both charges, the dispositive portion of which
states:
WHEREFORE, in view of all the foregoing discussion, this Court
hereby finds accused Rodolfo Abenes y Gacutan GUILTY beyond
reasonable doubt for Violation of P.D. No. 1866, as amended by
Republic Act No. 8294, having been found in possession without
license/permit of a Norinco .45 caliber pistol bearing Serial No.
906347 and 7 rounds of ammunitions and sentences him to
imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS
and ONE (1) DAY of PRISION CORRECCIONAL in its MEDIUM
PERIOD, as MINIMUM, to EIGHT (8) YEARS of PRISION MAYOR
in its MINIMUM, as MAXIMUM and a FINE of THIRTY THOUSAND
PESOS (P30,000.00), Philippine currency. Insofar as Criminal
Case No. 4559-98 is concerned. The .45 Caliber Pistol
aforementioned and the seven (7) rounds of ammunitions are
hereby forfeited in favor of the government the same being
effects of the Violation of P.D. 1866, amended.
As regards Criminal Case No. 4563-98, this Court also finds
herein accused Rodolfo Abenes y Gacutan GUILTY of Violation of
Section 264, in relation to Section 261, paragraphs (p) and (q) of
Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code and sentences him to imprisonment for a period of
ONE (1) YEAR, and in addition thereto, herein accused is
disqualified to hold any public office and deprived [of] the right
of suffrage. It shall be understood that the sentence herein
imposed shall be served simultaneously with the sentence
imposed in Criminal Case No. 4559-98.
SO ORDERED.6
The RTC found that, as between the positive and categorical
assertions of facts by the two policemen the witnesses for the
prosecution and the mere denial of the accused and his
witnesses, the former must prevail over the latter; that the
prosecution successfully proved that the petitioner had no

EVIDENCE

license or permit to carry the firearm through the officer-incharge of the firearms and explosives office who testified that,
based on his records, the petitioner had not been issued a
license, and whose testimony had not been impugned by the
defense; and that the testimonies of the accused and his two
witnesses to the effect that while aboard their private vehicle
and on their way to attend an election campaign meeting, they
simply stopped and allowed a complete stranger to hitch a ride
who was carrying a clutch bag, left the same in the vehicle when
he alighted, and which later turned out to contain the subject
firearm, were flimsy and unbelievable. The RTC ruled that the
defense of alibi or denial cannot prevail over the positive
identification by eyewitnesses who have no improper motive to
falsely testify against the petitioner, especially where the
policemen and the petitioner do not know each other; and, that
the petitioner failed to show any license or any other document
to justify his lawful possession of the firearm.
The petitioner appealed to the CA claiming that the checkpoint
was not shown to have been legally set up, and/or that the
frisking of the petitioner who was ordered to alight from the
Tamaraw FX, along with his companions in the vehicle, violated
his constitutional right against unlawful search and seizure; and,
that the trial court erred in believing the version of the incident
as testified to by the policemen instead of the version presented
by the defenses witness which is more consistent with truth and
human experience.7
On November 29, 2002, the CA rendered its Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the Joint Decision appealed
from is AFFIRMED with the MODIFICATION that with respect to
Criminal Case No. 4559-98, accused-appellant is sentenced to an
indeterminate penalty of 4 years, 2 months and 1 day of prision
correccional as minimum to 7 years and 4 months of prision
mayor as maximum.
SO ORDERED.8
With respect to the validity of the checkpoint, the CA found that
not only do the police officers have in their favor the
presumption that official duties have been regularly performed,
but also that the proximity of the day the checkpoint had been
set up, to the day of the May 11, 1998 elections, specifically for
the purpose of enforcing the COMELEC gun ban, gives a strong
badge of the legitimacy of the checkpoint; that after a review of
the records, the evidence adduced by the prosecution prevails
over the self-serving and uncorroborated claim of the petitioner
that he had been "framed"; and, that with respect to the
admissibility of the firearm as evidence, the prosecution
witnesses convincingly established that the .45 caliber pistol,
tucked into the right waist of the petitioner when he alighted
from the vehicle, was readily visible, and, therefore, could be
seized without a search warrant under the "plain view" doctrine.
The petitioner is now before this Court, raising the following
issues:
I.
Given the circumstances, and the evidence adduced,
was the check-point validly established?
II.

AGUSTIN, E.P. | 190

Given the circumstances, and the evidence adduced,

was the petitioners constitutional right against
unlawful search and seizure violated?

In People v. Escao,16 the Court, through the ponencia of Chief

Justice Hilario G. Davide, Jr., held:

III.
Given the circumstances, and the evidence adduced,
did not the honorable court of appeals commit a
grave abuse of discretion for adopting the trial courts
unsubstantiated findings of fact?
IV.
Given the circumstances, and the evidence adduced,
is not the petitioner entitled to an acquittal, if not on
the ground that the prosecution failed to prove guilt
beyond reasonable doubt, on the ground of
reasonable doubt itself . . . as to where the gun was
taken: from the floor of the vehicle or from the waist
of petitioner?9
The appeal is partly meritorious. The Court reverses the CAs
finding of his conviction in Criminal Case No. 4559-98.
After a thorough review of the records, this Court is of the view
that the courts a quo except for a notable exception with
respect to the negative allegation in the Information are
correct in their findings of fact. Indeed, the version of the
defense, as found by the lower courts, is implausible and belies
the common experience of mankind. Evidence to be believed
must not only proceed from the mouth of a credible witness but
it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the
circumstances.10 In addition, the question of credibility of
witnesses is primarily for the trial court to determine.11 For this
reason, its observations and conclusions are accorded great
respect on appeal.12
The trial court's assessment of the credibility of a witness is
entitled to great weight. It is conclusive and binding unless
shown to be tainted with arbitrariness or unless, through
oversight, some fact or circumstance of weight and influence has
not been considered.13 Absent any showing that the trial judge
overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of the
case, or that the judge acted arbitrarily, his assessment of the
credibility of witnesses deserves high respect by appellate
courts.14 Thus, the Court finds no cogent reason to disturb the
findings of the lower courts that the police found in plain view a
gun tucked into the waist of the petitioner during the Gun Ban
period enforced by the COMELEC.
So too must this Court uphold the validity of the checkpoint. The
petitioner insists that the prosecution should have produced the
mission order constituting the checkpoint, and invokes Aniag, Jr.
v. Comelec,15 where the Court purportedly held that firearms
seized from a motor vehicle without a warrant are inadmissible
because there was no indication that would trigger any suspicion
from the policemen nor any other circumstance showing
probable cause.
On both points the petitioner is wrong. In the present case,
production of the mission order is not necessary in view of
fact that the checkpoint was established three days before
May 11, 1998 elections; and, the circumstances under which

EVIDENCE

policemen found the gun warranted its seizure without a

warrant.

the
the
the
the

Accused-appellants assail the manner by which the checkpoint in

question was conducted. They contend that the checkpoint
manned by elements of the Makati Police should have been
announced. They also complain of its having been conducted in
an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC
resolution imposing a gun ban during the election period issued
pursuant to Section 52(c) in relation to Section 26(q) of the
Omnibus Election Code (Batas Pambansa Blg. 881). The national
and local elections in 1995 were held on 8 May, the second
Monday of the month. The incident, which happened on 5 April
1995, was well within the election period.
This Court has ruled that not all checkpoints are illegal. Those
which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed. For,
admittedly, routine checkpoints do intrude, to a certain extent,
on motorists right to "free passage without interruption," but it
cannot be denied that, as a rule, it involves only a brief
detention of travelers during which the vehicles occupants are
required to answer a brief question or two. For as long as the
vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as violative of an
individuals right against unreasonable search. In fact, these
routine checks, when conducted in a fixed area, are even less
intrusive.
The checkpoint herein conducted was in pursuance of the gun
ban enforced by the COMELEC. The COMELEC would be hard put
to implement the ban if its deputized agents were limited to a
visual search of pedestrians. It would also defeat the purpose for
which such ban was instituted. Those who intend to bring a gun
during said period would know that they only need a car to be
able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of
the constitutional rights of the accused against illegal search and
seizure. PO3 Suba admitted that they were merely stopping cars
they deemed suspicious, such as those whose windows are
heavily tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights inside the
cars they would stop, without opening the cars doors or
subjecting its passengers to a body search. There is nothing
discriminatory in this as this is what the situation demands.17
(Emphasis supplied)
Thus, the Court agrees with the Solicitor General that petitioners
reliance on Aniag is misplaced.
In Aniag, the police officers manning the checkpoint near the
Batasang Pambansa complex stopped the vehicle driven by the
driver of Congressman Aniag. After stopping the vehicle, the
police opened a package inside the car which contained a
firearm purportedly belonging to Congressman Aniag. In
declaring the search illegal, the Supreme Court stated that the
law enforcers who conducted the search had no probable cause
to check the content of the package because the driver did not
behave suspiciously nor was there any previous information that
a vehicle hiding a firearm would pass by the checkpoint.

AGUSTIN, E.P. | 191

In the instant case, the firearm was seized from the petitioner
when in plain view, the policemen saw it tucked into his waist
uncovered by his shirt.
Under the plain view doctrine, objects falling in the "plain view"
of an officer who has a right to be in the position to have that
view are subject to seizure and may be presented as evidence.18
The "plain view" doctrine applies when the following requisites
concur: (a) the law enforcement officer in search of the evidence
has a prior justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; and (c) it is immediately
apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to
seizure.19
All the foregoing requirements are present in the instant case.
The law enforcement officers lawfully made an initial intrusion
because of the enforcement of the Gun Ban and were properly in
a position from which they particularly viewed the area. In the
course of such lawful intrusion, the policemen came
inadvertently across a piece of evidence incriminating the
petitioner where they saw the gun tucked into his waist. The
gun was in plain view and discovered inadvertently when the
petitioner alighted from the vehicle.
As accurately found by the CA:
xxx It must be emphasized that the policemen discovered the
firearm [on] the person of the [petitioner] shortly after he
alighted from the vehicle and before he was frisked. SPO3
Pascuas testimony[,] corroborated by that of SPO1 Requejo[,]
convincingly established that the holstered .45 caliber pistol
tucked at the right waist of the [petitioner] was readily visible to
the policemen (TSN, August 24, 1998, pp. 18, 37). Thus,
notwithstanding the absence of a Search Warrant, the policemen
may validly seize the firearm and the same is admissible in
evidence against the [petitioner] pursuant to the "plain view
doctrine" xxx.20
Nor can the Court believe petitioners claim that he could not
have freely refused the "police orders" issued by the police team
who were "armed to the teeth" and "in the face of such show of
force." The courts a quo consistently found that the police team
manning the checkpoint politely requested the passengers to
alight from their vehicles, and the motorists who refused this
request were not forced to do so. These findings of fact are fully
supported by the evidence in the record.
However, the Court must underscore that the prosecution failed
to satisfactorily prove the negative allegation in the Information
that the petitioner possessed no license or permit to bear the
subject firearm.

Witness for the prosecution SPO4 Gilbert C. Senados admitted

that his records were outdated, i.e., that his Master List of
holders of firearms only covered licenses up to 1994; that it was
possible for the petitioner to acquire a license after 1994; and
that he issued the Certification, dated May 18, 1998, stating that
the petitioner carried no license or permit to possess the guns
because he was ordered to do so by his superiors.23
There is no evidence that between 1994 and May 8, 1998, the
date the crime was allegedly committed, no license was issued
to petitioner.
While the prosecution was able to establish the fact that the
subject firearm was seized by the police from the possession of
the petitioner, 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
Thus, for failure of the prosecution to prove beyond reasonable
doubt that petitioner was carrying a firearm without prior
authority, license or permit, the latter must be exculpated from
criminal liability under P.D. No. 1866, as amended.
With respect to the charge of violating Section 261(q) of B.P.
Blg. 881, as amended, otherwise known as the Omnibus Election
Code, the Court is constrained to affirm the conviction of the
petitioner, since the prosecution successfully discharged its
burden of proof.
Section 261 of B.P. Blg. 881 (Omnibus Election Code), as
originally worded, provides:
Sec. 261. Prohibited Acts. The following shall be guilty of an
election offense:
(q) Carrying firearms outside residence or place of business.
Any person who, although possessing a permit to carry firearms,
carries any firearms outside his residence or place of business
during the election period, unless authorized in writing by the
Commission: Provided, That a motor vehicle, water or air craft
shall not be considered a residence or place of business or
extension hereof.
x x x x (Emphasis supplied)
Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending
Section 261 of the Omnibus Election Code, provides:

It is a well-entrenched rule "that in crimes involving illegal

possession of firearm, the prosecution has the burden of proving
the elements thereof, viz: the existence of the subject firearm,
and the fact that the accused who owned or possessed the
firearm does not have the corresponding license or permit to
possess the same."21

SEC. 32. Who May Bear Firearms. During the election period,
no person shall bear, carry or transport firearms or other deadly
weapons in public places, including any building, street, park,
private vehicle or public conveyance, even if licensed to possess
or carry the same, unless authorized in writing by the
Commission. The issuance of firearm licenses shall be suspended
during the election period. (Emphasis supplied)

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.22

In view of the foregoing provisions, while it is well-settled that

under P.D. No. 1866, as amended, the burden to prove the
negative allegation that the accused has no license or permit to
carry a firearm lies with the prosecution; under the Omnibus
Election Code, however, the burden to adduce evidence that

EVIDENCE

AGUSTIN, E.P. | 192

accused is exempt from the COMELEC Gun Ban, lies with the
accused.

which are not subject

destroyed.1awphi1.net

Section 32 of R.A. No. 7166 is clear and unequivocal25 that the

prohibited act to which this provision refers is made up of the
following elements: 1) the person is bearing, carrying, or
transporting firearms or other deadly weapons; 2) such
possession occurs during the election period; and, 3) the
weapon is carried in a public place. Under said provision, it is
explicit that even if the accused can prove that he is holding a
valid license to possess such firearm, this circumstance by itself
cannot exculpate him from criminal liability. The burden is on the
accused to show that he has a written authority to possess such
firearm issued by no less than the COMELEC.

WHEREFORE, the petition is partly GRANTED. The Decision

dated November 29, 2002 of the Court of Appeals is REVERSED
and SET ASIDE insofar as Criminal Case No. 4559-98 is
concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED
from the charge of illegal possession of firearm under P.D. No.
1866, as amended, for failure of the prosecution to prove his
guilt beyond unreasonable doubt.

On this point, the petitioner failed to present any form of such

authority, and, therefore, his conviction must be affirmed.
Section 264 of the Omnibus Election Code provides:
Sec. 264. Penalties. Any person found guilty of any election
offense under this Code shall be punished with imprisonment of
not less than one year but not more than six years and
shall not be subject to probation. In addition, the guilty party
shall be sentenced to suffer disqualification to hold public office
and deprivation of the right of suffrage. If he is a foreigner, he
shall be sentenced to deportation which shall be enforced after
the prison term has been served.

of

lawful

commerce

shall

be

With respect to Criminal Case No. 4563-98, the assailed Decision

of the Court of Appeals is AFFIRMED with MODIFICATIONS
that petitioner is sentenced to an indeterminate sentence of one
year of imprisonment as minimum to two years of imprisonment
as maximum, not subject to probation; and he shall suffer
DISQUALIFICATION to hold public office and DEPRIVATION
of the right of suffrage. The subject firearm is CONFISCATED
and FORFEITED in favor of the Government.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

The CA affirmed the penalty imposed by the RTC. However, the

RTC failed to apply Section 1 of the Indeterminate Sentence
Law26 which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed
under the rules of the said Code, and the minimum which shall
be within the range of the penalty next lower to that prescribed
by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same.
Thus, the penalty that should be meted out to petitioner should
have a minimum and a maximum period. The Court deems it
reasonable that petitioner should suffer imprisonment for a
period of one (1) year as the minimum and two (2) years, as the
maximum.
Furthermore, under Section 34 of R.A. No. 7166, the subject
firearm shall be disposed of according to existing laws, which, in
this case, must be read in light of Article 45 of the Revised Penal
Code, to wit:
Art. 45. Confiscation and forfeiture of the proceeds or
instruments of the crime. Every penalty imposed for the
commission of a felony shall carry with it the forefeiture of the
proceeds of the crime and the instruments or tools with which it
was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be the property
of a third person not liable for the offense, but those articles

EVIDENCE

AGUSTIN, E.P. | 193

Republic of the Philippines

SUPREME COURT
THIRD DIVISION
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE,
Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity,
needs special safeguard and care, including appropriate legal
protection before as well as after birth.1 In case of assault on his
rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the singleminded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private
respondent Ma. Theresa Almonte, and a child named Jose
Gerardo. Gerardo and Ma. Theresa were married on December
29, 1989.2 After their marriage, they lived with Ma. Theresas
parents in Fairview, Quezon City.3 Almost a year later, on
December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.4
Gerardo and Ma. Theresas relationship turned out to be shortlived, however. On December 19, 1991, Gerardo filed a petition
to have his marriage to Ma. Theresa annulled on the ground of
bigamy.5 He alleged that nine years before he married Ma.
Theresa on December 10, 1980, she had married one Mario
Gopiao, which marriage was never annulled.6 Gerardo also found
out that Mario was still alive and was residing in Loyola Heights,
Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty
years old. She, however, averred that the marriage was a sham
and that she never lived with Mario at all.8
The trial court ruled that Ma. Theresas marriage to Mario was
valid and subsisting when she married Gerardo and annulled her
marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of the
child was awarded to Ma. Theresa while Gerardo was granted
visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had
their marriage annulled. She held him responsible for the
bastardization of Gerardo. She moved for the reconsideration of
the above decision "INSOFAR ONLY as that portion of the
decision which grant(ed) to the petitioner so-called visitation
rights between the hours of 8 in the morning to 12:00 p.m. of
any Sunday."10 She argued that there was nothing in the law
granting "visitation rights in favor of the putative father of an
illegitimate child."11 She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her
maiden name, following the rule that an illegitimate child shall
use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights
and the retention of Concepcion as Jose Gerardos surname.

EVIDENCE

Applying the "best interest of the child" principle, the trial court
denied Ma. Theresas motion and made the following
observations:
It is a pity that the parties herein seem to be using their son to
get at or to hurt the other, something they should never do if
they want to assure the normal development and well-being of
the boy.
The Court allowed visitorial rights to the father knowing that the
minor needs a father, especially as he is a boy, who must have a
father figure to recognize something that the mother alone
cannot give. Moreover, the Court believes that the emotional
and psychological well-being of the boy would be better served if
he were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or
the other on this matter, the Court invokes the provision of Art.
8, PD 603 as amended, otherwise known as the Child and Youth
Welfare Code, to wit:
"In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount
consideration."
WHEREFORE, the respondents Motion for Reconsideration has
to be, as it is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning
as error the ruling of the trial court granting visitation rights to
Gerardo. She likewise opposed the continued use of Gerardos
surname (Concepcion) despite the fact that Jose Gerardo had
already been declared illegitimate and should therefore use her
surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the
law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the "best interest
of the child" policy invoked by the court a quo. It ruled that "[a]t
bottom, it (was) the childs welfare and not the convenience of
the parents which (was) the primary consideration in granting
visitation rights a few hours once a week."14
The appellate court likewise held that an illegitimate child cannot
use the mothers surname motu proprio. The child, represented
by the mother, should file a separate proceeding for a change of
name under Rule 103 of the Rules of Court to effect the
correction in the civil registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the
adverse decision of the appellate court. She also filed a motion
to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of
the parties, the appellate court resolved the motion for
reconsideration. It reversed its earlier ruling and held that Jose
Gerardo was not the son of Ma. Theresa by Gerardo but by
Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this
case that the appellant [Ma. Theresa] was married to Mario
Gopiao, and that she had never entered into a lawful marriage
with the appellee [Gerardo] since the so-called "marriage" with

AGUSTIN, E.P. | 194

the latter was void ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose
Gerardo was born on December 8, 1990. Therefore, the child
Jose Gerardo under the law is the legitimate child of the
legal and subsisting marriage between [Ma. Theresa] and Mario
Gopiao; he cannot be deemed to be the illegitimate child of the
void and non-existent marriage between [Ma. Theresa] and
[Gerardo], but is said by the law to be the child of the legitimate
and existing marriage between [Ma. Theresa] and Mario Gopiao
(Art. 164, Family Code). Consequently, [she] is right in firmly
saying that [Gerardo] can claim neither custody nor visitorial
rights over the child Jose Gerardo. Further, [Gerardo] cannot
impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146,
The Family Code]); it would tend to destroy the existing
marriage between [Ma. Theresa] and Gopiao, would prevent any
possible rapproachment between the married couple, and would
mean a judicial seal upon an illegitimate relationship.16
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It
gave little weight to Jose Gerardos birth certificate showing that
he was born a little less than a year after Gerardo and Ma.
Theresa were married:
We are not unaware of the movants argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article 167 of the Family
Code mandates:
"The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been
sentenced as an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor
cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who
are the legitimate or illegitimate children for ones
legitimacy or illegitimacy cannot ever be compromised.
Not even the birth certificate of the minor can change his status
for the information contained therein are merely supplied by the
mother and/or the supposed father. It should be what the
law says and not what a parent says it is.17 (Emphasis
supplied)
Shocked and stunned, Gerardo moved for a reconsideration of
the above decision but the same was denied.18 Hence, this
appeal.
The status and filiation of a child cannot be compromised.19
Article 164 of the Family Code is clear. A child who is conceived
or born during the marriage of his parents is legitimate.20
As a guaranty in favor of the child21 and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have
been sentenced as an adulteress.
The law requires that every reasonable presumption be made in
favor of legitimacy.22 We explained the rationale of this rule in
the recent case of Cabatania v. Court of Appeals23:

EVIDENCE

The presumption of legitimacy does not only flow out of a

declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. It is
grounded on the policy to protect the innocent offspring from
the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He
cannot. He has no standing in law to dispute the status of Jose
Gerardo. Only Ma. Theresas husband Mario or, in a proper
case,25 his heirs, who can contest the legitimacy of the child Jose
Gerardo born to his wife.26 Impugning the legitimacy of a child is
a strictly personal right of the husband or, in exceptional cases,
his heirs.27 Since the marriage of Gerardo and Ma. Theresa was

void from the very beginning, he never became her husband and
thus never acquired any right to impugn the legitimacy of her
child.

The presumption of legitimacy proceeds from the sexual union in

marriage, particularly during the period of conception.28 To
overthrow this presumption on the basis of Article 166 (1)(b) of
the Family Code, it must be shown beyond reasonable doubt
that there was no access that could have enabled the husband
to father the child.29 Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption is
rebutted by evidence to the contrary.30
The presumption is quasi-conclusive and may be refuted only by
the evidence of physical impossibility of coitus between husband
and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.31
To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible.32 This may
take place, for instance, when they reside in different countries
or provinces and they were never together during the period of
conception.33 Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place
through the violation of prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were
living together in Fairview, Quezon City, Mario was living in
Loyola Heights which is also in Quezon City. Fairview and Loyola
Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city
but also that no evidence at all was presented to disprove
personal
access
between
them.
Considering
these
circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to
defeat the assumption should be presented by him who asserts
the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue
of the marriage between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer35 to the
petition for annulment of marriage36 that she never lived with
Mario. He claims this was an admission that there was never any
sexual relation between her and Mario, an admission that was
binding on her.
Gerardos argument is without merit.

AGUSTIN, E.P. | 195

First, the import of Ma. Theresas statement is that Jose Gerardo

is not her legitimate son with Mario but her illegitimate son with
Gerardo. This declaration an avowal by the mother that her
child is illegitimate is the very declaration that is proscribed by
Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the
mother against the legitimacy of her child cannot affect the
legitimacy of a child born or conceived within a valid marriage.

Second, even assuming the truth of her statement, it does not

mean that there was never an instance where Ma. Theresa could
have been together with Mario or that there occurred absolutely
no intercourse between them. All she said was that she never
lived with Mario. She never claimed that nothing ever happened
between them.
Telling is the fact that both of them were living in Quezon City
during the time material to Jose Gerardos conception and birth.
Far from foreclosing the possibility of marital intimacy, their
proximity to each other only serves to reinforce such possibility.
Thus, the impossibility of physical access was never established
beyond reasonable doubt.

Third, to give credence to Ma. Theresas statement is to allow

her to arrogate unto herself a right exclusively lodged in the

husband, or in a proper case, his heirs.37 A mother has no right
to disavow a child because maternity is never uncertain.38
Hence, Ma. Theresa is not permitted by law to question Jose
Gerardos legitimacy.

Finally, for reasons of public decency and morality, a married

woman cannot say that she had no intercourse with her husband
and that her offspring is illegitimate.39 The proscription is in
consonance with the presumption in favor of family solidarity. It
also promotes the intention of the law to lean toward the
legitimacy of children.40
Gerardos insistence that the filiation of Jose Gerardo was never
an issue both in the trial court and in the appellate court does
not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was
immaterial. That was, in effect, an agreement that the child was
illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a
declaration against the legitimacy of her child and consenting to
the denial of filiation of the child by persons other than her
husband. These are the very acts from which the law seeks to
shield the child.
Public policy demands that there be no compromise on the
status and filiation of a child.41 Otherwise, the child will be at the
mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is
misplaced. It has no evidentiary value in this case because it was
not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been
formally offered.42
Moreover, the law itself establishes the status of a child from the
moment of his birth.43 Although a record of birth or birth
certificate may be used as primary evidence of the filiation of a
child,44 as the status of a child is determined by the law itself,
proof of filiation is necessary only when the legitimacy of the

EVIDENCE

child is being questioned, or when the status of a child born

after 300 days following the termination of marriage is sought to
be established.45
Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and, even
then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was
improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of
the facts contained therein.46 As prima facie evidence, the
statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by
the interested parties.47 Between the certificate of birth which is
prima facie evidence of Jose Gerardos illegitimacy and the
quasi-conclusive presumption of law (rebuttable only by proof
beyond reasonable doubt) of his legitimacy, the latter shall
prevail. Not only does it bear more weight, it is also more
conducive to the best interests of the child and in consonance
with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would
doggedly press for Jose Gerardos illegitimacy while claiming that
they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable
to the child. In the eyes of the law, the legitimate child enjoys a
preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full
inheritance.48 On the other hand, an illegitimate child is bound to
use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group
and his legitime is only half of that of his legitimate
counterpart.49 Moreover (without unwittingly exacerbating the
discrimination against him), in the eyes of society, a bastard is
usually regarded as bearing a stigma or mark of dishonor.
Needless to state, the legitimacy presumptively vested by law
upon Jose Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the
bitter squabble between the very persons who were passionately
declaring their concern for him. The paradox was that he was
made to suffer supposedly for his own sake. This madness
should end.
This case has been pending for a very long time already. What is
specially tragic is that an innocent child is involved. Jose Gerardo
was barely a year old when these proceedings began. He is now
almost fifteen and all this time he has been a victim of incessant
bickering. The law now comes to his aid to write finis to the
controversy which has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the
presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear
the surnames of his father Mario and mother Ma. Theresa, in
conformity with the provisions of the Civil Code on surnames.50 A
persons surname or family name identifies the family to which
he belongs and is passed on from parent to child.51 Hence,
Gerardo cannot impose his surname on Jose Gerardo who is, in
the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the
corrections of the entries in the civil register regarding his

AGUSTIN, E.P. | 196

paternity and filiation should be threshed out in a separate

proceeding.
In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights to
a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and
child to each others company. There being no such parent-child
relationship between them, Gerardo has no legally demandable
right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of
PD 603, otherwise known as the Child and Youth Welfare Code,
is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding
the care, custody, education and property of the child, his
welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a
Child of which the Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
The State as parens patriae affords special protection to children
from abuse, exploitation and other conditions prejudicial to their
development. It is mandated to provide protection to those of
tender years.52 Through its laws, the State safeguards them
from every one, even their own parents, to the end that their
eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family
acrimony. This is especially significant where, as in this case, the
issue concerns their filiation as it strikes at their very identity and
lineage.
WHEREFORE, the petition is hereby DENIED. The September
14, 1995 and January 10, 1996 resolutions of the Court of
Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ.,
concur.
Carpio-Morales, J., no part.

EVIDENCE

AGUSTIN, E.P. | 197

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-60101 August 31, 1983
EASTERN SHIPPING LINES, INC., petitioner,
vs.
JOSEPHINE LUCERO, respondents.

FORCE CAUSING THE VESSEL ROLLING

AND PITCHING VIOLENTLY VESSEL NOW
INCLINING 15 TO 20 DEGREES PORT
FEARING MIGHT JETTISON CARGO ON
DECK IF EVERYTHING COME TO WORSE
SITUATION HOWEVER TRYING UTMOST
BEST TO FACILITATE EVERYTHING IN
ORDER STOP NO FIX POSITIONS FROM
NOON 15th UP TO 0600 HRS TO DATE
NEED ASSISTANCE APPROXIMATE DR
POSITIONS AT 0600 HRS 10TH WITHIN
THE VICINITY LATITUDE 20-02, ON
LONGTITUDE 110-02, OE COURSE 120
DEGREES REGARDS ...

Valera, Cainglet & Dala Law Office for petitioner.

LUCERO

Jose R. Millares for private respondent.

Second Message:

ESCOLIN, J.:
February l6/80 1530 GMT VIA INTERCOM
Petition for review filed by the Eastern Shipping Lines, Inc. to set
aside the decision of the National Labor Relations Commission,
which affirmed the judgment rendered by the National Seamen
Board, the dispositive portion of which reads as follows:
WHEREFORE, respondent is hereby
ordered to pay complainant her monthly
allotments from March, 1980 up to the
amount of P54,562.00 within ten (10) days
from receipt of this decision. Respondent is
likewise
further
ordered
to
pay
complainant her future monthly allotment
up to the arrival of the M/V EASTERN
MINICON in the port of Manila or after four
(4) years when the presumptive death
established by law takes effect.

EMICON
EAST SHIP MANILA
RYC NOTED ACCORDINGLY SINCE WASTE
PAPER CARGO ON PORT SIDE AND HAD
BEEN WASH OUT VESSEL AGAIN LISTING
ON STARBOARD SIDE REGRET WE HAVE
TO JETTISON STARBOARD SIDE WASTE
PAPER CARGO IN ORDER TO BALANCE
THE VESSEL NOW ALMOST BACK TO
NORMAL POSITION HOWEVER VESSEL
STILL LABORING VIOLENTLY REGARDS
LUCERO

The material facts that gave rise to this petition are as follows:
On October 31, 1979, Capt. Julio J. Lucero, Jr. was appointed by
petitioner Eastern Shipping Lines, Inc., Company for short, as
master/captain to its vessel M/V Eastern Minicon plying the
HongkongManila route, with the salary of P5,560.00 exclusive of
ship board allowances and other benefits. Under the contract,
his employment was good for one (1) round trip only, i.e., the
contract would automatically terminate upon arrival of the vessel
at the Port of Manila, unless renewed. It was further agreed that
part of the captain's salary, while abroad, should be paid to Mrs.
Josephine Lucero, his wife, in Manila.
On February 16, 1980, while the vessel was enroute from
Hongkong to Manila where it was expected to arrive on February
18, 1980, Capt. Lucero sent three (3) messages to the
Company's Manila office:

Third Message:

FEBRUARY 16/80 2150 HRS

PHILIPPINE COAST GUARD
NEED IMMEDIATE ASSISTANCE POSITION
19-35 N 116-40 E SEAWATER ENTERING
INSIDE HATCH VESSEL INCLINING 15 TO
20 DEGREES PORT IF POSSIBLE SEND
IMMEDIATE ASSISTANCE VESSEL IN
DANGER PREPARING TO ABANDON
ANYTIME
MASTER

First Message: 1
February l6,1980 0700 GMT Via Intercom
EMINICON
Urgent Eastship Manila
REGRET TO INFORM YOU ENCOUNTERED
BOISTEROUS WEATHER WITH STRONG
NORTHEASTERLY WINDS WITH GAIL

EVIDENCE

Acting on these radio messages, the Company, respondent

below, took the following steps:
RESPONDENT informed of the grave
situation, immediately reported the matter
to the Philippine Coast Guard for search
and rescue operation and the same was
coordinated with the U.S. Air Force based
at Clark Air Base. Respondent also released
radio messages to all vessels passing the

AGUSTIN, E.P. | 198

Hongkong/Manila route requesting them to

be very cautious and vigilant for possible
survivors and to scan the area whether
there are signs of debris from the ill-fated
vessel "EASTERN MINICON" which has
foundered In the meantime, two (2)
vessels of the respondent were also
dispatched to the area last reported by the
Master for search and rescue operation,
but the collective efforts of all parties
concerned yielded negative results, (p. 79,
Rollo)
Subsequently, the Lloyds of London, insurer of the M/V Eastern
Minicon through its surveyors, confirmed the loss of the vessel.
Thereafter, the Company paid the corresponding death benefits
to the heirs of the crew members, except respondent Josephine
Lucero, who refused to accept the same.
On July 16, 1980, Mrs. Lucerofiled a complaint with -the National
Seamen Board, Board for short, for payment of her accrued
monthly allotment of P3,183.00, which the Company had
stopped since March 1980 and for continued payment of said
allotments until the M/V Minicon shall have returned to the port
of Manila. She contended that the contract of employment
entered into by her husband with the Company was on a
voyage-to-voyage basis, and that the same was to terminate
only upon the vessel's arrival in Manila.
Upon the other hand, the Company maintained that Mrs. Lucero
was no longer entitled to such allotments because: [a] the
Lloyds of London had already confirmed the total loss of the
vessel and had in fact settled the company's insurance claim and
[b] the Company, with the approval of the Board, had likewise
paid the corresponding death benefits to the heirs of the other
seamen The Company further invoked the provisions of Article
643 of the Code of Commerce, to wit:
Art. 643. If the vessel and her cargo
should be totally lost, by reason of capture
or wreck, all rights shall be extinguished,
both as regards the crew to demand any
wages whatsoever, and as regards the ship
agent to recover the advances made.
xxx xxx xxx
On May 19, 1981, the Board rendered the aforecited judgment
in favor of Mrs. Josephine Lucero and against petitioner
Company. The Board held that the presumption of death could
not be applied because the four-year period provided for by
Article 391(l) of the Civil Code had not yet expired; and that the
payment of death benefits to the heirs of the other crew
'members was based upon a voluntary agreement entered into
by and between the heirs and the Company, and did not bind
respondent Mrs. Lucero who was not a party thereto.
On appeal, the respondent National Labor Relations Conunission
affirmed the said decision. It held that:
Within the context of the foregoing
circumstances, the only recourse is to
presume the vessel totally lost and its crew
members dead. But in this connection, the
question that comes to the fore is: When
will the presumption arise? Article 391 of
the Civil Code provides the answer, to wit:

EVIDENCE

Art. 391. The following shall be presumed

dead for all purposes, including the division
of the estate among the heirs: (1) A
person on board a vessel lost during a sea
voyage, or an aeroplane which is missing,
who has not been heard of for four years
since the loss of the vessel or aeroplane;...
By the aforequoted law, it is quite clear
that the person to be presumed dead
should first "not been heard of for four
years since the loss of the vessel" before
he can be presumed dead for all purposes.
Applied to Capt. LUCERO, it is evidently
premature to presume him dead as four
years has not yet expired. Thus, even in

Judge Advocate General vs. Gonzales, et

al., (CA) 48 O.G. 5329, the very case cited

by the respondent herein, the court Id. in

the case of the missing soldier that
although nothing was heard of him since 7
May 1942, the fact of his death is not
presumed until seven years after 1942.
Since Capt. LUCERO cannot yet be
presumed
dead
as
demonstrated
hereinabove, it logically follows that as of
now, he is presumed have It is of no
moment to Us that the vessel was
conceded by the Lloyds of London to have
been totally lost which, in the first place,
was
admittedly
merely
based
on
presumption as even the whereabouts of
the vessel remains unknown. Similarly,
even the agreement, which formed the
basis of the Decision of the NSB ordering
payment of death benefits to the heirs of
some of the crew must have been
predicated upon a presumption of death of
the crew members concerned. Such
circumstances do not suffice to establish
the actual death of Capt. LUCERO.
xxx xxx xxx
Indeed, by the terms of the appointment
of Capt. LUCERO, his engagement
terminates upon the return of the vessel at
the Port of Manila. He is considered to be
still working entitling his spouse to
allotment until the vessel returns or until it
is officially declared totally lost, or until the
presumption of his death becomes
effective in which case the burden of
proving that he is alive is shifted to his wife
for purposes of continuing her allotment.
We are unable to agree with the reasoning and conclusion of the
respondent NLRC.
It is undisputed that on February 16, 1980, the Company
received three (3) radio messages from Capt. Lucero on board
the M/V Eastern Minicon the last of which, received at 9:50 p.m.
of that day, was a call for immediate assistance in view of the
existing "danger": "sea water was entering the hatch"; the
vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message,

AGUSTIN, E.P. | 199

nothing more has been heard from the vessel or its crew until
the present time.

proven. There are even cases where said

death and the intervention of the criminal
agency that caused it may be presumed or
established by circumstantial evidence.

There is thus enough evidence to show the circumstances

attending the loss and disappearance of the M/V Eastern Minicon
and its crew. The foregoing facts, quite logically. are sufficient to
lead Us to a moral certainty that the vessel had sunk and that
the persons aboard had perished with it. upon this premise, the
rule on presumption of death under Article 391 (1) of the Civil
Code must yield to the rule of preponderance of evidence. As
this Court said in Joaquin vs. Navarro 4 "Where there are facts,
known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of
preponderance of evidence controls."
Of similar import is the following pronouncement from American
Jurisprudence: 5

Loss of Vessel. Where a vessel sets out

on a voyage and neither the vessel nor

those who went in her are afterward heard
of, the presumption arises, after the
utmost limit of time for her to have
completed the voyage and for news of her
arrival at any commercial port of the world
to have been received, that the vessel has
been lost and that all on board have
perished. The presumption of death in
such cases does not rest on the fact alone
that the person in question has been
absent and unheard from for a specific
length of time, but also on the fact that the
vessel has not been heard front The
question, moreover, is not whether it is
impossible that the person may be alive,
but whether the circumstances do not
present so strong a probability of his death
that a court should act thereon. The
presumption of death from absence of
tidings of the vessel on which the absentee
sailed is strengthened by proof of a storm
to which the vessel probably was exposed.
The presumption is even stronger where it
appears affirmatively that the vessel was
lost at sea, that nothing has been heard of
a particular person who sailed thereon,
and that a sufficient time has elapsed to
permit the receipt of news of any possible
survivors of the disaster.

Moreover, it may be remembered that in

several treason cages decided by this
Court, where besides the act of treason the
accused is held responsible for the death
of persons he had or tortured and later
taken away, where the victims were never
later seen or heard from, it has been
presumed that they were lulled or
otherwise criminally disposed of or
liquidated by the accused this, for the
purpose of fixing the penalty.
If in the foregoing criminal cases, where the proof required for
conviction must be beyond reasonable doubt, the rule of
presumption was not applied and the fact of death was deemed
established, with more reason is this Court justified in entering a
finding of death. Indeed, We cannot permit Article 391 to
override, or be substituted for, the facts established in this case
which logically indicate to a moral certainty that Capt. Lucero
died shortly after he had sent his last radio message at 9:50
p.m. on February 16, 1980.
In view of the conclusion arrived at above, We deem it
unnecessary to discuss the other issued raised in this case, they
being mere adjuncts to the principa issue already disposed of.
WHEREFORE, the decision of the NLRC subject of this petition is
hereby set aside, and the complaint of respondent Josephine
Lucero dismissed. However, Mrs. Lucero is entitled to death
benefits. No costs.
SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero and Gutierrez,

Jr., JJ., concur.
Aquino, J., I concur. Mrs. Lucero is entitled to death benefits.
De Castro, J., and Abad Santos, J., are on leave.

In People vs. Ansang 6 where, in open sea, the appellant aboard

a vinta ignited three home-made bombs and threw them at the
boat occupied by the victims, and the said boat was later
washed ashore and the passengers thereof were never heard or
seen again by anybody, this Court convicted the appellant of
multiple murder, holding that the victims were dead.
Similarly, in People vs. Sasota, 7 the claim of the appellants
therein that there was no conclusive evidence of death of the
victim because his body was never found was overruled by this
Court in this wise:
In a case of murder or homicide, it is not
necessary to recover the body or to show
where it can be found. 'Mere are cases like
death at sea, where the finding or recovery
of the body is impossible. It is enough that
the death and the criminal agency be

EVIDENCE

AGUSTIN, E.P. | 200

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 135928

July 6, 2007

TEODORO BERDIN, VICENTE ALEGARBES, and

ABELARDO DE VERA, in Their Personal Capacities and as
Representatives of the TUBIGON MARKET VENDORS
ASSOCIATION, Petitioners,
vs.
HON. EUFRACIO A. MASCARIAS, Municipal Mayor;
CRESENCIANA L. BALATAYO, Municipal Treasurer;
SAMUEL PURISIMA, INP Station Commander; THE
MUNICIPAL COUNCIL and/or MUNICIPALITY OF
TUBIGON, PROVINCE OF BOHOL, Respondents.
DECISION
TINGA, J.:
This is a petition1 filed under Rule 45 seeking to review and set
aside the 26 May 1998 Decision2 of the Court of Appeals in CAG.R. SP No. 39045 and to annul and set aside the 24 April 1995
Decision3 of the Regional Trial Court (RTC), Branch 4, Bohol, in
Civil Case No. 4577.
Petitioners Teodoro Berdin, Vicente Alegarbes, and Abelardo de
Vera (petitioners), are the President, Vice President, and Adviser,
respectively, of the Tubigon Market Vendors Association
(Association), an association of vendors doing business in
Tubigon, Bohol. Respondents Eufracio A. Mascarias, Narcisa L.
Balatayo, and Lt. Abner Catalla, on the other hand, were, at the
time Civil Case No. 4577 was filed, the Municipal Mayor,
Treasurer, and the INP Station Commander, respectively, of
Tubigon, Bohol.
On 14 December 1988, the Sangguniang Bayan of Tubigon
enacted Tax Ordinance No. 88-11-364 increasing the taxes and
fees of the municipality, to take effect on 1 January 1989.
Petitioner Berdin, as President of the Association, wrote to
respondent Municipal Treasurer requesting a copy of Tax
Ordinance No. 88-11-36.5 The request was followed by the filing
of a protest before respondents Municipal Mayor and Municipal
Treasurer.6 The Association also requested the suspension of the
implementation of the ordinance pending final determination of
its legality by appropriate authorities. Thereafter, on 27 February
1989, petitioners elevated their request for a review and
suspension of the ordinance to the Provincial Treasurer of
Bohol.7
Acting on petitioners request, Eufronio M. Pizarras, Provincial
Treasurer, referred the letter of petitioner Berdin to the
Municipal Treasurer on 15 March 1989, and requested the latter
official to forward a copy of Tax Ordinance No. 88-11-36 to the
Department of Finance (DOF), through the Provincial Treasurer,
for review and approval pursuant to Sec. 8 of Executive Order
(E.O.) No. 249 dated 25 July 1987.8
Meanwhile, on 29 March 1989, respondent Mayor submitted a
corrected copy of Tax Ordinance No. 88-11-36 to Atty. Melchor

EVIDENCE

P. Monreal, Assistant Regional Director, DOF Regional Office No.

7, Cebu City.9
Final Demand Letters were sent to petitioners de Vera and
Berdin on 2 June 1989 for payment of outstanding rental fees
and municipal business taxes due under the new tax ordinance,
with a warning that their stores/establishments will be closed
and padlocked.10 Petitioners wrote the Municipal Treasurer on 13
June 1989 and requested said official to await the resolution of
their protest before taking action on the Final Demand Letters.11
Petitioners also sent a letter to the DOF on 21 August 1989
asking for the suspension of the ordinance pending resolution of
their protest in view of the threat of closure of their
stores/establishments.12
Thereafter, on 4 September 1989, petitioners filed a Complaint13
with the RTC of Bohol against respondents Mayor, Treasurer,
and INP Station Commander of Tubigon, Bohol, as well as the
Municipal Council and/or Municipality of Tubigon, to enjoin
respondents from enforcing Tax Ordinance No. 88-11-36, to
declare the ordinance a nullity and, in the event said ordinance
is found to be invalid, to order respondents to reimburse excess
taxes paid by petitioners. The case was docketed as Civil Case
No. 4577.14
Tax Ordinance No. 88-11-36 was amended by Tax Ordinance
No. 89-10-4915 dated 17 October 1989, by specifying that the
civil remedies available include the "padlocking of the
establishment and/or seizure of property and revocation of the
permit or license and/or eviction from public property and/or by
legal action."16 The Provincial Treasurer approved Tax Ordinance
No. 89-10-49 on 8 January 1990 and held that it was within the
power of the municipality to enact the ordinance pursuant to
Secs. 60 to 63, Art. 3 of Presidential Decree (P.D.) No. 231, as
amended, or the Local Tax Code.17
Even before the Provincial Treasurer approved of Tax Ordinance
No. 89-10-49, petitioners had earlier referred Tax Ordinance No.
89-10-49 to the Provincial Prosecutor for review. The Provincial
Prosecutor issued Opinion No. 90-118 dated 3 January 1990 and
found Tax Ordinance No. 89-10-49 valid except insofar as it
provided for the padlocking of establishments as among the civil
remedies available against a delinquent taxpayer. Said official
wrote the Sangguniang Bayan and suggested an amendment to
Tax Ordinance No. 89-10-49 by deleting "padlocking of the
establishment" as among the civil remedies.19
Meanwhile, on 27 December 1989, the Provincial Treasurer
suspended some provisions of Tax Ordinance No. 88-11-36 for
failure to conform to the rates prescribed by the Local Tax
Code.20 Thus, the Sangguniang Bayan enacted Municipal
Revenue Ordinance No. 90-01-5421 on 5 January 1990 to amend
the suspended provisions of Tax Ordinance No. 88-11-36. The
Provincial Treasurer found Municipal Revenue Ordinance No. 9001-54 to be in conformity with the rates authorized under the
Local Tax Code and accordingly lifted the suspension of the
provisions of Tax Ordinance No. 88-11-36 that were previously
suspended and declared that the same, as amended by
Municipal Revenue Ordinance No. 90-01-54, may already be
given force and effect.22
Thereafter, on 24 January 1990, the Provincial Treasurer wrote
petitioners informing the latter of his findings that Tax Ordinance
Nos. 88-11-36 and 89-10-49 were both in order and in accord
with Art. 3 of P.D. No. 231 and further explaining that under
Sec. 49 of P.D. No. 231, a public hearing is required only when
"the local board or council may exercise the power to impose a
tax or fee on a tax base or subject similar to those authorized in

AGUSTIN, E.P. | 201

[the Local Tax Code] but which may not have been specifically
enumerated herein," a fact not present in the case of the
questioned ordinances.23
Petitioners wrote the Provincial Treasurer on 31 January 1990
informing the latter that the Provincial Fiscal already made a
contrary ruling on Tax Ordinance No. 89-10-49 and that since
the municipality did not appeal the said ruling, the same became
final. Petitioners further requested the Provincial Treasurer to
transmit all records to the DOF for purposes of appealing the
ruling of the Provincial Treasurer and for a review of the
questioned ordinances by a higher authority.24
Petitioners elevated the finding of the Provincial Treasurer to the
Secretary of Finance on 31 January 1990. They also requested
the suspension of the implementation of Tax Ordinance No. 8811-36 pending its review by said office.25 On 30 March 1990,
Gregorio A. Barretto, Director III, Bureau of Local Government
Finance of the DOF, referred the appeal to the Provincial
Treasurer for comment and/or recommendation.26 The Provincial
Treasurer informed the DOF that his office reviewed and
approved the ordinance after the rates have been found to be
just and reasonable and that, for those rates initially found by
him to have exceeded the maximum authorized by law, an
amendatory ordinance was enacted to meet the objection.27
Thereafter, the Deputy Director and Officer-in-Charge of the
Bureau of Local Government Finance, by authority of the
Secretary of Finance, informed the Provincial Treasurer that their
department cannot review Ordinance No. 88-11-36 as requested
by petitioners.28 The Provincial Treasurer transmitted a copy of
this letter to petitioners.29
Four years later, on 24 April 1995, the RTC rendered a
Decision30 in Civil Case No. 4577, the dispositive portion of which
states:
WHEREFORE, judgment is hereby rendered as follows:
1 declaring Municipal Revenue Ordinance No. 8811-36, series of 1988, enacted by the Sangguniang
Bayan of Tubigon, Bohol as valid and therefore the
same can be enforced;
2 declaring Municipal Ordinance No. 89-10-49 dated
October 11, 1989 valid, except insofar as it provides
for the "padlocking of the establishment" as the civil
remedies available against a delinquent taxpayer;
3 denying the
reimbursement;

prayer

for

mandamus

and

4 dissolving the injunctive order dated May 11,

1990 directing the defendants to desist from
enforcing Municipal Ordinance No. 88-11-36;
5 granting Final Injunction restraining defendants
from padlocking the business establishments of the
plaintiffs, thus making permanent the injunctive order
of May 11, 1990 to that effect; and
6 dismissing defendants
insufficiency of evidence.
Costs against the plaintiffs.

EVIDENCE

counterclaim

for

SO ORDERED.31
Petitioners filed a Notice of Appeal with the RTC,32 which gave
due course to the appeal and ordered the transmittal of the case
records to the Court of Appeals (CA).33
On 26 May 1998, the Fifth Division of the CA rendered a
Decision34 affirming in toto the decision of the RTC. Their motion
for reconsideration having been denied,35 petitioners now come
to this Court via this Petition for Review under Rule 45 of the
Rules of Court.
The issues raised by petitioners in their Memorandum36 may be
summarized as follows: (1) whether the ordinances are valid and
enforceable; (2) whether publication was necessary; and (3)
whether there was exhaustion of administrative remedies.
The petition is meritorious but only in regard to the need for
publication.
Petitioners adopt a three-level argument with regard to the
validity and enforceability of Tax Ordinance No. 88-11-36. First,
they assert the ordinance does not exist by virtue of respondent
officials delay in furnishing them with a copy of the questioned
ordinance. Second, if Tax Ordinance No. 88-11-36 did exist, it
was not validly enacted for failure to hold public hearings and to
have the same published pursuant to Sec. 43 of the Local Tax
Code. Finally, petitioners claim, even if Tax Ordinance No. 8811-36 was validly enacted, the same contains objectionable
provisions which would render it invalid and unenforceable.
Petitioners misgivings on the existence of Tax Ordinance No. 8811-36 are baseless. The reason for the delay was adequately
explained and was even attributed to petitioners failure to pay
for the cost of reproduction of the ordinance.
The right of the people to information on matters of public
concern is recognized under Sec. 7, Art. III of the 1987
Constitution37 and is subject to such limitations as may be
provided by law. Thus, while access to official records may not
be prohibited, it certainly may be regulated. The regulation may
come either from statutory law and from the inherent power of
an officer to control his office and the records under his custody
and to exercise some discretion as to the manner in which
persons desiring to inspect, examine, or copy the record may
exercise their rights.38 The Municipal Treasurer in the case at bar
exercised this discretion by requiring petitioners to pay for the
cost of reproduction of Tax Ordinance No. 88-11-36. Such a
requirement is reasonable under the circumstances considering
that the ordinance is quite voluminous consisting of more than a
hundred pages.
Petitioners then assail Tax Ordinance No. 88-11-36 and Tax
Ordinance No. 90-10-49 for failure to hold public hearings
pursuant to Sec. 50 of the Local Tax Code. Respondents, on the
other hand, claim that a public hearing was no longer necessary
considering that the ordinances in question were merely
revisions of an existing tax ordinance and not new enactments.
The pertinent provisions of law on this matter are Secs. 4939 and
5040 of the Local Tax Code.
A perusal of these provisions would yield a conclusion that the
local board or council has the power to impose a tax or fee (1)
on a tax base or subject specifically enumerated in the Local Tax
Code, (2) on a tax base similar to those authorized in the Local

AGUSTIN, E.P. | 202

Tax Code but which may not have been specifically enumerated
therein, and (3) on a tax base or tax subject which is not similar
or comparable to any tax base or subject specifically mentioned
or otherwise provided for in the Local Tax Code. Public hearing
apparently is not necessary when the tax or fee is imposed on a
tax base or subject specifically enumerated in the Local Tax
Code.
The basis for the above distinction is that when a tax base or
subject is specifically enumerated in the Local Tax Code, the
existence of the power to tax is beyond question as the same is
expressly granted. Even in the determination of the rates of the
tax, a public hearing, even if ideal, is not necessary because the
law itself provides for a ceiling on such rates. The same does not
obtain in a situation where what is about to be taxed is not
specifically enumerated in the Local Tax Code because in such a
situation, the issues of whether to tax or not and at what rate a
tax is to be imposed are crucial. Consequently, a public hearing
is necessary and vital.
A scrutiny of the taxes or fees imposed by Tax Ordinance No.
88-11-36 shows that some of them belong to the second and
third categories of taxes or fees that may be imposed by a
municipality that require public hearing. Petitioners are thus
correct in saying that a public hearing is necessary for its
enactment. With respect to Tax Ordinance No. 89-10-49,
however, we hold that no public hearing is necessary as it does
not impose any tax or fee. Said ordinance is actually a
restatement, with illustrations, of the provisions of the Local Tax
Code on civil remedies for the collection of the local taxes and
fees imposed by Tax Ordinance No. 88-11-36.
Although a public hearing is necessary for the enactment of Tax
Ordinance No. 88-11-36, still we uphold its validity in view of
petitioners failure to present evidence to show that no public
hearing was conducted.41 Petitioners, as the party asserting a
negative allegation, had the burden of proving lack of public
hearing.42 Although the Sangguniang Bayan had the control of
records or the better means of proof regarding the facts alleged
and respondent public officials assumed an uncooperative stance
to petitioners request for copies of the Minutes of their
deliberation, petitioners are not relieved from this burden.43
Petitioners could easily have resorted to the various modes of
discovery under Rules 23 to 28 of the Rules of Court.44
Furthermore, petitioners could have compelled the production of
these documents through a subpoena duces tecum or they could
have required testimony on this issue by officials in custody of
the documents through a subpoena ad testificandum. However,
petitioners made no such effort.
Petitioners next claim that the impositions contained in Tax
Ordinance No. 88-11-36 exceeded the maximum allowed by the
Local Tax Code. In particular, petitioners assert that (1) the
taxes imposed by the ordinance are not based on the taxpayers
ability to pay; (2) the taxes imposed are unjust, excessive,
oppressive, discriminatory and confiscatory; (3) the ordinances
are contrary to law, public policy and are in restraint of trade;
(4) the ordinances violate the rule of a progressive system of
taxation; and (5) the ordinances are contrary to the declared
national policy.
These questions have already been raised in their protest and
resolved by the 27 December 1989 findings of the Provincial
Treasurer. In fact, said official suspended some of the provisions
of Tax Ordinance No. 88-11-36 for failure to comply with the
rates prescribed by the Local Tax Code. Furthermore, the
subsequent enactment of Municipal Revenue Ordinance No. 9001-54 and its approval by the Provincial Treasurer corrected this

EVIDENCE

non-compliance with the Local Tax Code. The local legislative

bodys modification of Tax Ordinance No. 88-11-36 through
Municipal Revenue Ordinance No. 90-01-54 is sanctioned by Sec.
4445 of the Local Tax Code.
Moreover, as the presumption of regularity of official conduct
was not overcome by petitioners, the findings of the Provincial
Treasurer must be upheld.
There is likewise no merit in petitioners contention that the
Provincial Treasurers finding on the fishery rental fees is flawed.
The Local Tax Code provides in Sec. 21 thereof that
municipalities, in the exercise of their authority to grant
exclusive fishery rights and license individual fishing gears in
municipal waters, may levy or fix rentals or fees therefore in
accordance with said section and in conjunction with other
operative laws and regulations on municipal fisheries. One such
operative law is P.D. No. 70446 which provides for the jurisdiction
of the Bureau of Fisheries and Aquatic Resources in Sec. 4.47
Thus, it was correct for the Provincial Treasurer to rule that the
fishery rental fees in Tax Ordinance No. 88-11-36 may be given
due course provided that prior approval from the Bureau of
Fisheries and Aquatic Resources has been obtained, pursuant to
the provisions of P.D. No. 704, as amended.
Petitioners further fault the Municipal Treasurer for the latters
failure to furnish the Provincial Treasurer with a copy of Tax
Ordinance No. 88-11-36 after its approval. By not furnishing the
latter official with a copy of the tax ordinance, the Municipal
Treasurer frustrated a review thereof.
In this regard, we hold that the submission of Tax Ordinance No.
88-11-36 to the Assistant Regional Director, DOF Regional Office
No. 7, Cebu City complied with the requirement of review
pursuant to Secs. 49 and 50 of the Local Tax Code, as said
official is the alter ego of the Secretary of Finance, under an
expanded application of the doctrine of qualified political agency,
where "the Presidents power of control is directly exercised by
him over the members of the Cabinet who, in turn, and by his
authority, control the
bureaus and other offices under their respective jurisdictions in
the executive department."48
We now resolve the issue of exhaustion of administrative
remedies.
A perusal of the applicable provisions of the Local Tax Code
would show that there are three administrative remedies
available to an aggrieved taxpayer. A tax ordinance may either
be (1) reviewed or suspended by the Provincial Treasurer49 or
the Secretary of Finance,50 (2) the subject of a formal protest
with the Secretary of Finance,51 or (3) questioned as to its
legality and referred for opinion to the Provincial Fiscal.52
In the case at bar, petitioners question the validity of Tax
Ordinance No. 88-11-36 for the following reasons: (1) no public
hearing was conducted; (2) the taxes imposed therein are not
based on the taxpayers ability to pay; (3) the taxes imposed are
unjust, excessive, oppressive, discriminatory and confiscatory;
(4) the ordinances are contrary to law, public policy and are in
restraint of trade; (5) the ordinances violate the rule of a
progressive system of taxation; and (6) the ordinances are
contrary to the declared national policy.

AGUSTIN, E.P. | 203

Of these issues, the first, second, fourth and fifth issues should
have been referred for opinion to the Provincial Fiscal pursuant
to Sec. 4753 of the Local Tax Code, because they are not among
those mentioned in Sec. 4454 of the Local Tax Code. The other
remaining issues, on the other hand, are proper subjects of a
protest which should have been brought to the Secretary of
Finance.
However, petitioners did not even bring the issues relative to the
legality or validity of Tax Ordinance No. 88-11-36 to the
Provincial Fiscal. What they brought for the consideration of the
Provincial Fiscal was Tax Ordinance No. 89-10-49. Thus, in
Opinion No. 90-1,55 the Provincial Fiscal found said ordinance
valid except insofar as it provided for the padlocking of the
establishment as among the civil remedies available against a
delinquent taxpayer. The ruling of the Provincial Treasurer
declaring Tax Ordinance No. 89-10-49 valid and in order is of no
moment because, under Sec. 47, the opinion of the Provincial
Fiscal is appealable to the Secretary of Justice.
With respect to the remaining issues proper for a formal protest,
petitioners did not bring the same to the Secretary of Finance.
What they filed instead was a petition with the Municipal Mayor
requesting for a suspension of the implementation of the
ordinance "pending final determination of its legality by
appropriate authorities." Petitioners thereafter went to the
Provincial Treasurer reiterating their request for a review and
suspension of the ordinance. In fact, the first time petitioners
wrote the DOF was on 13 June 1989, when they merely
requested said official to require the Provincial Treasurer to
resolve their protest expeditiously.
Obviously, petitioners did not formally protest Tax Ordinance No.
88-11-36 as the same may properly be brought not before the
Provincial Treasurer but before the Secretary of Finance. What
the Provincial Treasurer merely conducted was a review of Tax
Ordinance No. 88-11-36 under Sec. 44 of the Local Tax Code,
limiting itself to the issues proper for a review thereof. Thus,
said official initially suspended some of the provisions of Tax
Ordinance No. 88-11-36 for their failure to comply with the rates
prescribed by the Local Tax Code and eventually decided in favor
of its validity after the Sangguniang Bayan modified the
objectionable provisions thereof via Municipal Revenue
Ordinance No. 90-01-54. That what was filed before the
Provincial Treasurer was merely a review is evident from the
DOFs refusal to review the findings of the Provincial Treasurer,
which, it said, was made pursuant to Sec. 44 of the Local Tax
Code.
Even if we were to consider petitioners appeal with the
Secretary of Finance as a formal protest, despite its
unseasonableness, still, it would be unavailing since they did not
offer proof on how and in what manner Tax Ordinance No. 8811-36 could be invalid. In fact, the Deputy Director and Officerin-Charge of the Bureau of Local Government Finance, by
authority of the Secretary of Finance, noted that petitioners
counsel "did not state the grounds of his protest as provided
under Section 45 of the Local Tax Code, as amended, in relation
to Section 44 thereof."56 Verily, mere allegation that an
ordinance is invalid on the grounds enumerated in Sec. 44 of the
Local Tax Code will not work to rebut the presumption of the
ordinances validity.
Clearly, for failure to file a formal protest with the Secretary of
Finance, or a legal question with the Provincial Fiscal on Tax
Ordinance No. 88-11-36s validity, petitioners cannot be said to
have exhausted administrative remedies available to them.

EVIDENCE

The underlying principle of the rule on exhaustion of

administrative remedies rests on the presumption that the
administrative agency, if afforded a complete chance to pass
upon the matter, will decide the same correctly.57 There are both
legal and practical reasons for the principle. The administrative
process is intended to provide less expensive and speedier
solutions to disputes. Where the enabling statute indicates a
procedure for administrative review and provides a system of
administrative appeal or reconsideration, the courtsfor reasons
of law, comity, and conveniencewill not entertain a case unless
the available administrative remedies have been resorted to and
the appropriate authorities have been given an opportunity to
act and correct the errors committed in the administrative
forum.58
From the above disquisitions, it follows that the validity of the
questioned tax ordinances must be upheld. However, their
enforceability is another matter that merits further deliberation
considering the apparent lack of publication or posting of the
questioned ordinances.
Petitioners assert that pursuant to Sec. 43 of the Local Tax
Code, certified true copies of the ordinance should have been
published for three (3) days in a newspaper or publication widely
circulated within the jurisdiction of the local government, or
posted in the local legislative hall or premises and two other
conspicuous places within the territorial jurisdiction of the local
government within ten (10) days after its approval.
Provincial Circular No. 22-73 states:
All taxes, fees and charges authorized by the Code to be
imposed by local governments, may only be collected by the
treasurer concerned if an ordinance embodying the same has
been duly enacted by the local board or council and approved in
accordance with the provisions of the Code.
Section 43 of the Code provides that within ten (10) days after
their approval, certified true copies of all provincial, city,
municipal and barrio ordinance levying or imposing taxes, fees
or other charges shall be published for three (3) consecutive
days in a newspaper or publication widely circulated within the
jurisdiction of the local government, or posted in the local
legislative hall or premises and in two other conspicuous places
within the territorial jurisdiction of the local government. In
either case, copies of all provincial, city, municipal and barrio
revenue ordinances shall be furnished the treasurers of the
respective component and mother units of a local government
for dissemination.
While non-compliance with the foregoing provisions of
the Code will not render the tax or revenue ordinances
null and void, still there must be publication and
dissemination as provided in the Code to obviate abuses
in the exercise of the taxing powers and preclude
protests from the people adversely affected. Such
publication and dissemination of tax ordinances will not
only be in consonance with the objectives of the Code to
secure fair, just and uniform local impositions but will
also enhance the efficient collection of valid taxes, fees
and other charges. [Emphasis supplied]1avvphi1
Thus, it would seem that while lack of publication does not
render a tax ordinance null and void, said requirement must still
be complied with in order "to obviate abuses in the exercise of
the taxing powers and preclude protests from the people
adversely affected." Publication is thus a condition precedent to

AGUSTIN, E.P. | 204

the effectivity and enforceability of an ordinance to inform the

public of its contents before rights are affected by the same.
The records are bereft of any indication that evidence was
presented to prove petitioners negative allegation that there
was no publication. Neither is there a positive declaration on the
part of respondents that there was publication or posting. Even
the RTC and the CA decisions are silent on this issue.
Consequently, an uncertainty exists on whether the ordinances
were indeed published or not. We resolve this uncertainty in
favor of petitioners and accordingly rule that the questioned tax
ordinances must be published before the new tax rates imposed
therein are to be collected from the affected taxpayers.
This does not mean however that the municipality is deprived of
the income that would have been collected under the subject tax
ordinances because taxes may still be collected at the old rates
previously imposed.
While we partially grant this petition, we note with disapproval
petitioners commission of forum shopping prior to the filing of
this petition. Petitioners simultaneously prayed for the same
relief of suspension of the ordinance in four different fora. It
should be remembered that petitioners initially filed a protest of
Tax Ordinance No. 88-11-36 with the Municipal Mayor and the
Municipal Treasurer on 11 January 1989. Even as this protest
was unresolved, they elevated their request for a review and
suspension of the same ordinance to the Provincial Treasurer on
17 February 1989. Again, in view of the threat of closure of their
establishment, petitioners sent a letter to the DOF on 21 August
1989 praying for the same relief of suspension of the ordinance.
Again, despite the pendency of the various requests, petitioners
filed Civil Case No. 4577, again praying for a writ of preliminary
injunction to restrain respondents from enforcing the ordinance,
a prayer which is essentially a prayer for the suspension of the
ordinance.
WHEREFORE, premises considered, the instant petition is
GRANTED IN PART. The decision of the Court of Appeals in CAG.R. SP No. 39045 is hereby MODIFIED in that the
Sangguniang Bayan of Tubigon, Bohol is hereby DIRECTED to
cause the publication of Tax Ordinance No. 88-11-36, Tax
Ordinance No. 89-10-49, and Municipal Revenue Ordinance No.
90-01-54 for three (3) days in a newspaper or publication widely
circulated within the jurisdiction of the local government, or their
posting in the local legislative hall or premises and two other
conspicuous places within the territorial jurisdiction of the local
government. In all other respects, the decision of the Court of
Appeals in CA-G.R. SP No. 39045 affirming the 26 May 1998
Decision of the Regional Trial Court in Civil Case No. 4577 is
hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

EVIDENCE

AGUSTIN, E.P. | 205

Republic of the Philippines

SUPREME COURT
Manila

This is in response to your letter dated February 13,

2003. [Respondent] Neomi T. Olivares called by
phone on January 29, 2003. She stated that she is
invoking patient-physician confidentiality. That she no
longer has any relationship with [petitioner]. And that
I should not release any medical information
concerning her neurologic status to anyone without
her approval. Hence, the same day I instructed my
secretary to inform your office thru Ms. Bernie
regarding [respondent's] wishes.

FIRST DIVISION
G.R. No. 169737

February 12, 2008

BLUE CROSS HEALTH CARE, INC., petitioner,

vs.
NEOMI* and DANILO OLIVARES, respondents.

xxx

xxx12

In a decision dated August 5, 2003, the MeTC dismissed the

complaint for lack of cause of action. It held:

DECISION
CORONA, J.:
1

This is a petition for review on certiorari of a decision and

resolution3 of the Court of Appeals (CA) dated July 29, 2005 and
September 21, 2005, respectively, in CA-G.R. SP No. 84163
which affirmed the decision of the Regional Trial Court (RTC),
Makati City, Branch 61 dated February 2, 2004 in Civil Case No.
03-1153,4 which in turn reversed the decision of the
Metropolitan Trial Court (MeTC), Makati City, Branch 66 dated
August 5, 2003 in Civil Case No. 80867.5
Respondent Neomi T. Olivares applied for a health care program
with petitioner Blue Cross Health Care, Inc., a health
maintenance firm. For the period October 16, 2002 to October
15, 2003,6 she paid the amount of P11,117. For the same
period, she also availed of the additional service of limitless
consultations for an additional amount of P1,000. She paid these
amounts in full on October 17, 2002. The application was
approved on October 22, 2002. In the health care agreement,
ailments due to "pre-existing conditions" were excluded from the
coverage.7
On November 30, 2002, or barely 38 days from the effectivity of
her health insurance, respondent Neomi suffered a stroke and
was admitted at the Medical City which was one of the hospitals
accredited by petitioner. During her confinement, she underwent
several laboratory tests. On December 2, 2002, her attending
physician, Dr. Edmundo Saniel,8 informed her that she could be
discharged from the hospital. She incurred hospital expenses
amounting to P34,217.20. Consequently, she requested from the
representative of petitioner at Medical City a letter of
authorization in order to settle her medical bills. But petitioner
refused to issue the letter and suspended payment pending the
submission of a certification from her attending physician that
the stroke she suffered was not caused by a pre-existing
condition.9
She was discharged from the hospital on December 3, 2002. On
December 5, 2002, she demanded that petitioner pay her
medical bill. When petitioner still refused, she and her husband,
respondent Danilo Olivares, were constrained to settle the bill.10
They thereafter filed a complaint for collection of sum of money
against petitioner in the MeTC on January 8, 2003.11 In its
answer dated January 24, 2003, petitioner maintained that it had
not yet denied respondents' claim as it was still awaiting Dr.
Saniel's report.
In a letter to petitioner dated February 14, 2003, Dr.
Saniel stated that:

EVIDENCE

xxx

xxx the best person to determine whether or not the

stroke she suffered was not caused by "pre-existing
conditions" is her attending physician Dr. Saniel who
treated her and conducted the test during her
confinement. xxx But since the evidence on record
reveals that it was no less than [respondent Neomi]
herself who prevented her attending physician from
issuing the required certification, petitioner cannot be
faulted from suspending payment of her claim, for
until and unless it can be shown from the findings
made by her attending physician that the stroke she
suffered was not due to pre-existing conditions could
she demand entitlement to the benefits of her
policy.13
On appeal, the RTC, in a decision dated February 2, 2004,
reversed the ruling of the MeTC and ordered petitioner to pay
respondents the following amounts: (1) P34,217.20 representing
the medical bill in Medical City and P1,000 as reimbursement for
consultation fees, with legal interest from the filing of the
complaint until fully paid; (2) P20,000 as moral damages; (3)
P20,000 as exemplary damages; (4) P20,000 as attorney's fees
and (5) costs of suit.14 The RTC held that it was the burden of
petitioner to prove that the stroke of respondent Neomi was
excluded from the coverage of the health care program for being
caused by a pre-existing condition. It was not able to discharge
that burden.15
Aggrieved, petitioner filed a petition for review under Rule 42 of
the Rules of Court in the CA. In a decision promulgated on July
29, 2005, the CA affirmed the decision of the RTC. It denied
reconsideration in a resolution promulgated on September 21,
2005. Hence this petition which raises the following issues: (1)
whether petitioner was able to prove that respondent Neomi's
stroke was caused by a pre-existing condition and therefore was
excluded from the coverage of the health care agreement and
(2) whether it was liable for moral and exemplary damages and
attorney's fees.
The health care agreement defined a "pre-existing condition" as:
x x x a disability which existed before the
commencement date of membership whose natural
history can be clinically determined, whether or not
the Member was aware of such illness or condition.
Such conditions also include disabilities existing prior
to reinstatement date in the case of lapse of an
Agreement. Notwithstanding, the following disabilities
but not to the exclusion of others are considered preexisting conditions including their complications when

AGUSTIN, E.P. | 206

occurring during the first year of a Members

coverage:
I. Tumor of Internal Organs

Petitioner argues that respondents prevented Dr. Saniel from

submitting his report regarding the medical condition of Neomi.
Hence, it contends that the presumption that evidence willfully
suppressed would be adverse if produced should apply in its
favor.17

II. Hemorrhoids/Anal Fistula

III. Diseased tonsils and sinus conditions
requiring surgery
IV. Cataract/Glaucoma
V. Pathological Abnormalities of nasal
septum or turbinates
VI. Goiter and other thyroid disorders
VII. Hernia/Benign prostatic hypertrophy
VIII. Endometriosis
IX. Asthma/Chronic
disease

existing conditions if they occur within one year from the time
the agreement takes effect.

Obstructive

Lung

X. Epilepsy
XI. Scholiosis/Herniated disc and other
Spinal column abnormalities

Respondents counter that the burden was on petitioner to prove

that Neomi's stroke was excluded from the coverage of their
agreement because it was due to a pre-existing condition. It
failed to prove this.18
We agree with respondents.
In Philamcare Health Systems, Inc. v. CA,19 we ruled that a
health care agreement is in the nature of a non-life insurance.20
It is an established rule in insurance contracts that when their
terms contain limitations on liability, they should be construed
strictly against the insurer. These are contracts of adhesion the
terms of which must be interpreted and enforced stringently
against the insurer which prepared the contract. This doctrine is
equally applicable to health care agreements.21
Petitioner never presented any evidence to prove that
respondent Neomi's stroke was due to a pre-existing condition.
It merely speculated that Dr. Saniel's report would be adverse to
Neomi, based on her invocation of the doctor-patient privilege.
This was a disputable presumption at best.
Section 3 (e), Rule 131 of the Rules of Court states:

XII. Tuberculosis
Sec. 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other
evidence:

XIII. Cholecysitis
XIV. Gastric or Duodenal ulcer

xxx

XV. Hallux valgus

XVI.
Hypertension
Cardiovascular diseases

and

other

XVII. Calculi
XVIII. Tumors of skin, muscular tissue,
bone or any form of blood dyscracias
XIX. Diabetes Mellitus
XX. Collagen/Auto-Immune disease
After the Member has been continuously covered for
12 months, this pre-existing provision shall no longer
be applicable except for illnesses specifically excluded
by an endorsement and made part of this
Agreement.16
Under this provision, disabilities which existed before the
commencement of the agreement are excluded from its
coverage if they become manifest within one year from its
effectivity. Stated otherwise, petitioner is not liable for pre-

EVIDENCE

xxx

xxx

(e) That evidence willfully suppressed would be

adverse if produced.
Suffice it to say that this presumption does not apply if (a) the
evidence is at the disposal of both parties; (b) the suppression
was not willful; (c) it is merely corroborative or cumulative and
(d) the suppression is an exercise of a privilege.22 Here,
respondents' refusal to present or allow the presentation of Dr.
Saniel's report was justified. It was privileged communication
between physician and patient.
Furthermore, as already stated, limitations of liability on the part
of the insurer or health care provider must be construed in such
a way as to preclude it from evading its obligations. Accordingly,
they should be scrutinized by the courts with "extreme
jealousy"23 and "care" and with a "jaundiced eye."24 Since
petitioner had the burden of proving exception to liability, it
should have made its own assessment of whether respondent
Neomi had a pre-existing condition when it failed to obtain the
attending physician's report. It could not just passively wait for
Dr. Saniel's report to bail it out. The mere reliance on a
disputable presumption does not meet the strict standard
required under our jurisprudence.

AGUSTIN, E.P. | 207

Next, petitioner argues that it should not be held liable for moral
and exemplary damages, and attorney's fees since it did not act
in bad faith in denying respondent Neomi's claim. It insists that it
waited in good faith for Dr. Saniel's report and that, based on
general medical findings, it had reasonable ground to believe
that her stroke was due to a pre-existing condition, considering
it occurred only 38 days after the coverage took effect.25
We disagree.
The RTC and CA found that there was a factual basis for the
damages adjudged against petitioner. They found that it was
guilty of bad faith in denying a claim based merely on its own
perception that there was a pre-existing condition:
[Respondents] have sufficiently shown that [they]
were forced to engage in a dispute with [petitioner]
over a legitimate claim while [respondent Neomi was]
still experiencing the effects of a stroke and forced to
pay for her medical bills during and after her
hospitalization despite being covered by [petitioners]
health care program, thereby suffering in the process
extreme mental anguish, shock, serious anxiety and
great stress. [They] have shown that because of the
refusal of [petitioner] to issue a letter of authorization
and to pay [respondent Neomi's] hospital bills, [they
had] to engage the services of counsel for a fee of
P20,000.00. Finally, the refusal of petitioner to
pay respondent Neomi's bills smacks of bad
faith, as its refusal [was] merely based on its own
perception that a stroke is a pre-existing condition.
(emphasis supplied)
This is a factual matter binding and conclusive on this Court.26
We see no reason to disturb these findings.
WHEREFORE, the petition is hereby DENIED. The July 29,
2005 decision and September 21, 2005 resolution of the Court of
Appeals in CA-G.R. SP No. 84163 are AFFIRMED.
Treble costs against petitioner.
SO ORDERED.

EVIDENCE

AGUSTIN, E.P. | 208

RULE 132: Presentation of Evidence

(a) Sec. 1 - Sec. 18: Examination of Witnesses;
(b) Sec. 8 - Sec. 27: Rules on Examination of Child
Witness

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 132164

October 19, 2004

CIVIL SERVICE COMMISSION, petitioner,

vs.
ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by
proof of his reputation, it is necessary that the reputation shown
should be that which existed before the occurrence of the
circumstances out of which the litigation arose,1 or at the time of
the trial and prior thereto, but not at a period remote from the
commencement of the suit.2 This is because a person of
derogatory character or reputation can still change or reform
himself.
For our resolution is the petition for review on certiorari of the
Court of Appeals Decision3 dated January 8, 1998, in CA-G.R.
SP. No. 44180, the dispositive portion of which reads:
"WHEREFORE, Resolution No. 966213 dated
September 23, 1996 and Resolution No. 972423
dated April 11, 1997 of the respondent Civil Service
Commission are hereby set aside. The complaint
against petitioner Allyson Belagan filed by Magdalena
Gapuz is hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is
hereby ordered to be immediately reinstated to his
position without loss of seniority, retirement,
backwages and other rights and benefits.
SO ORDERED."
The instant case stemmed from two (2) separate complaints
filed respectively by Magdalena Gapuz, founder/directress of the
"Mother and Child Learning Center," and Ligaya Annawi, a public
school teacher at Fort Del Pilar Elementary School, against
respondent Dr. Allyson Belagan, Superintendent of the
Department of Education, Culture and Sports (DECS), all from
Baguio City. Magdalena charged respondent with sexual
indignities and harassment, while Ligaya accused him of sexual
harassment and various malfeasances.
Magdalenas sworn complaint alleges that sometime in March
1994, she filed an application with the DECS Office in Baguio
City for a permit to operate a pre-school. One of the requisites

EVIDENCE

for the issuance of the permit was the inspection of the school
premises by the DECS Division Office. Since the officer assigned
to conduct the inspection was not present, respondent
volunteered his services. Sometime in June 1994, respondent
and complainant visited the school. In the course of the
inspection, while both were descending the stairs of the second
floor, respondent suddenly placed his arms around her shoulders
and kissed her cheek. Dumbfounded, she muttered, "Sir, is this
part of the inspection? Pati ba naman kayo sa DECS wala ng
values?" Respondent merely sheepishly smiled. At that time,
there were no other people in the area.
Fearful that her application might be jeopardized and that her
husband might harm respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office
and asked respondent, "Sir, kumusta yung application ko?" His
reply was "Mag-date muna tayo." She declined, explaining that
she is married. She then left and reported the matter to DECS
Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow
up her application. However, she was forced to reveal the
incidents to her husband when he asked why the permit has not
yet been released. Thereupon, they went to the office of the
respondent. He merely denied having a personal relationship
with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director
his recommendation to approve Magdalenas application for a
permit to operate a pre-school.
Sometime in September 1994, Magdalena read from a local
newspaper that certain female employees of the DECS in Baguio
City were charging a high-ranking DECS official with sexual
harassment. Upon inquiry, she learned that the official being
complained of was respondent. She then wrote a lettercomplaint for sexual indignities and harassment to former DECS
Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that
on four separate occasions, respondent touched her breasts,
kissed her cheek, touched her groins, embraced her from behind
and pulled her close to him, his organ pressing the lower part of
her back.
Ligaya also charged respondent with: (1) delaying the payment
of the teachers salaries; (2) failing to release the pay
differentials of substitute teachers; (3) willfully refusing to
release the teachers uniforms, proportionate allowances and
productivity pay; and (4) failing to constitute the Selection and
Promotion Board, as required by the DECS rules and regulations.
The DECS conducted a joint investigation of the complaints of
Magdalena and Ligaya. In his defense, respondent denied their
charge of sexual harassment. However, he presented evidence
to disprove Ligayas imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint
Decision4 finding respondent guilty of four (4) counts of sexual
"indignities or harassments" committed against Ligaya; and two
(2) counts of "sexual advances or indignities" against
Magdalena. He was ordered dismissed from the service. The
dispositive portion of the Joint Decision reads:

AGUSTIN, E.P. | 209

"WHEREFORE,
foregoing
disquisitions
duly
considered, decision is hereby rendered in the two
above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan,
Superintendent of the DECS Baguio City
Schools Division GUILTY of the four counts
of sexual indignities or harassments
committed against the person and honor of
complainant Miss Ligaya Annawi, a Baguio
City public school teacher, while in the
performance of his official duties and
taking advantage of his office. He is,
however, ABSOLVED of all the other
charges of administrative malfeasance or
dereliction of duty.
b) Respondent Baguio City Superintendent
Allyson Belagan likewise GUILTY of the two
counts of sexual advances or indignities
committed against the person and honor of
complainant Mrs. Magdalena Gapuz, a
private school teacher of Baguio City, while
in the performance of his official duties and
taking advantage of his office.
Consequently, respondent Allyson Belagan is HEREBY
ORDERED DISMISSED from the government service,
with prejudice to reinstatement and all his retirement
benefits and other remunerations due him are
HEREBY DECLARED FORFEITED in favor of the
government.
SO ORDERED."5
Upon appeal, the Civil Service Commission (CSC), on September
23, 1996, promulgated Resolution No. 9662136 affirming the
Decision of the DECS Secretary in the case filed by Magdalena
but dismissing the complaint of Ligaya. The CSC ruled that
respondents transgression against Magdalena constitutes grave
misconduct. Thus:
"The acts of Belagan are serious breach of good
conduct since he was holding a position which
requires the incumbent thereof to maintain a high
degree
of
moral
uprightness.
As
Division
Superintendent, Belagan represents an institution
tasked to mold the character of children.
Furthermore, one of his duties is to ensure that
teachers in his division conduct themselves properly
and observe the proper discipline. Any improper
behavior on his part will seriously impair his moral
ascendancy over the teachers and students which can
not be tolerated. Therefore, his misconduct
towards an applicant for a permit to operate a
private pre-school cannot be treated lightly and
constitutes the offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby
found guilty of grave misconduct and imposed the
penalty of DISMISSAL from the service with all the
accessory penalties. The decision of the DECS
Secretary is modified accordingly."7
On October 29, 1996, respondent seasonably filed a motion for
reconsideration, contending that he has never been charged of
any offense in his thirty-seven (37) years of service. By contrast,

EVIDENCE

Magdalena was charged with several offenses before the

Municipal Trial Court (MTC) of Baguio City, thus:
"1. Criminal Case No. 43416 for LIGHT ORAL
DEFAMATION (December 3, 1980)
2. Criminal Case No. 45629 for SLIGHT PHYSICAL
INJURIES (May 13, 1982)
3. Criminal Case No. 45630 for GRAVE THREATS (May
13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS
(June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS MISCHIEF
(January 25, 1985)
6. Criminal Case No. 51533 for LIGHT THREATS
(January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL
DEFAMATION (January 30, 1985)
8. Criminal Case No. 51818 for LIGHT ORAL
DEFAMATION (March 18, 1985)
9. Criminal Case No. 51819 for GRAVE ORAL
DEFAMATION (March 18, 1985)
10. Criminal Case No. 51820
MISCHIEF (March 18, 1985)

for

MALICIOUS

11. Criminal Case No. 51821 for UNJUST VEXATION

(March 18, 1985)
12. Criminal Case No. 62173 for UNJUST VEXATION
(May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL
DEFAMATION (May 29, 1991)
14. Criminal Case No. 62754 for GRAVE ORAL
DEFAMATION (December 2, 1986)
15. Criminal Case No. 55642 for GRAVE ORAL
DEFAMATION (December 2, 1986)
16. Criminal Case No. 55423 for GRAVE ORAL
DEFAMATION (October 24, 1986)
17. Criminal Case No. 55846 for GRAVE ORAL
DEFAMATION (November 4, 1986)
18. Criminal Case No. 55800 for GRAVE ORAL
DEFAMATION (January 7, 1987)
19. Criminal Case No. 57312 for UNJUST VEXATION
(November 29, 1987)

AGUSTIN, E.P. | 210

20. Criminal Case No. 55643 for SLIGHT PHYSICAL

INJURIES (December 13, 1985)

15.

Incident
of
August
25,
1979
Mrs. Gapuz shouted invectives against the
servants of Mr. De Leon

21. Criminal Case No. 53404 for UNJUST VEXATION

(December 13, 1985)

16.

Incident
of
August
26,
Mrs. Gapuz terrorized the council meeting

22. Criminal Case No. 55422 for UNJUST VEXATION

(October 24, 1986)"8

17.

Incident
of
September
2,
1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz

In addition, the following complaints against Magdalena were

filed with the Barangay Chairmen of Barangay Gabriela Silang
and Barangay Hillside, both in Baguio City:

18.

"1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for

GRAVE THREATS, UNJUST VEXATION, RUMOR
MONGERING

19.

2. Teresita De Los Santos vs. Gapuz (Brgy. Case No.

86-8-26-8)
for
GRAVE
THREATS
&
ORAL
DEFAMATION

20.

3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case

No. 029) for ORAL DEFAMATION and FALSE
ACCUSATION

21.

4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030)

for HARASSMENT and THREATS
5. GABRIELA SILANG TANOD FORCES vs. Gapuz
(Case No. 031) for HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for
ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for
ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978)
for RUMOR MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978)
for ORAL DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978)
for ORAL DEFAMATION
11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for
ORAL DEFAMATION
12.

Vistro
Salcedo
case
(May 8,
1979)
Where Mrs. Gapuz was spreading rumors against
Barangay Captain and Police Chief
13.

Demolition
Scandal
(May
10,
1979)
Where she called all the residents of their
Barangay for an emergency meeting and where she
shouted invectives against the residents
14.

Incident
of
June
13,
1979
Mrs. Gapuz shouted invectives against the
Barangay Sanitary Inspector

EVIDENCE

1979

Incident
of
September
9,
1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros
during the council meeting
Incident
of
September
10,
1979
Mrs. Gapuz was hurling invectives along her alley
in the early morning
Incident
of
September
13,
1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie
de los Santos with the latters consent
Incident
of
September
21,
1979
Mrs. Gapuz was shouting and hurling invectives
scandalously around her residence
22.

Incident
of
September
21,
1979
Mrs. Gapuz was shouting, complaining about
alleged poisoned sardines near the premises of her
residence which killed her hen.
23.

Incident
of
September
23,
1979
Mrs. Gapuz was shouting unpleasant words
around the neighborhood. She did not like the
actuations of a bayanihan group near the waiting
shed."9
Respondent claimed that the numerous cases filed against
Magdalena cast doubt on her character, integrity, and credibility.
In its Resolution No. 97242310 dated April 11, 1997, the CSC
denied respondents motion for reconsideration, holding that:
"The character of a woman who was the subject of a
sexual assault is of minor significance in the
determination of the guilt or innocence of the person
accused of having committed the offense. This is so
because even a prostitute or a woman of ill repute
may become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz
is shown to have had cases before the regular courts
for various offenses and was condemned by her
community for wrongful behavior does not discount
the possibility that she was in fact telling the truth
when she cried about the lecherous advances made
to her by the respondent. x x x"
Respondent then filed with the Court of Appeals a petition for
review. As stated earlier, it reversed the CSC Resolutions and
dismissed Magdalenas complaint.

AGUSTIN, E.P. | 211

The Appellate Court held that Magdalena is an unreliable

witness, her character being questionable. Given her
aggressiveness and propensity for trouble, "she is not one whom
any male would attempt to steal a kiss." In fact, her "record
immediately raises an alarm in any one who may cross her
path."11 In absolving respondent from the charges, the Appellate
Court considered his "unblemished" service record for 37 years.
Unsatisfied, the CSC, through the Solicitor General, filed the
instant petition raising the following assignments of error:
"I. The Supreme Court may rule on factual issues
raised on appeal where the Court of Appeals
misappreciated the facts. Furthermore, where the
findings of the Court of Appeals and the trial court are
contrary to each other, the Supreme Court may
review the record and evidence. The Court of Appeals
erred in not giving credence to the testimony of
complainant Magdalena Gapuz despite convincing and
overwhelming signs of its truthfulness.
II. The Court of Appeals committed reversible error
when it failed to give due weight to the findings of
the DECS, which conducted the administrative
investigation, specifically with respect to the
credibility of the witnesses presented.
III. The Court of Appeals erred in ruling that
respondent should be penalized under Sec. 22 (o) of
the Omnibus Rules Implementing Book V and not Sec.
22 (e) of said rules."12
In his comment, respondent maintains that Magdalenas
derogatory record undermines the verity of her charge and that
the Court of Appeals is correct in dismissing it.
The petition is impressed with merit.

(a) In Criminal Cases:

xxx

xxx

(3) The good or bad moral

character of the offended party
may be proved if it tends to
establish in any reasonable
degree the probability or
improbability of the offense
charged."
It will be readily observed that the above provision pertains only
to criminal cases, not to administrative offenses. And even
assuming that this technical rule of evidence can be applied
here, still, we cannot sustain respondents posture.
Not every good or bad moral character of the offended party
may be proved under this provision. Only those which would
establish the probability or improbability of the offense charged.
This means that the character evidence must be limited to the
traits and characteristics involved in the type of offense
charged.16 Thus, on a charge of rape - character for chastity, on
a charge of assault - character for peaceableness or violence,
and on a charge of embezzlement - character for honesty.17 In
one rape case, where it was established that the alleged victim
was morally loose and apparently uncaring about her chastity,
we found the conviction of the accused doubtful.18
In the present administrative case for sexual harassment,
respondent did not offer evidence that has a bearing on
Magdalenas chastity. What he presented are charges for grave
oral defamation, grave threats, unjust vexation, physical injuries,
malicious mischief, etc. filed against her. Certainly, these pieces
of evidence are inadmissible under the above provision because
they do not establish the probability or improbability of the
offense charged.

The pivotal issue before us is whether complaining witness,

Magdalena Gapuz, is credible. This is a question of fact which, as
a general rule, is not subject to this Courts review.

Obviously, in invoking the above provision, what respondent was

trying to establish is Magdalenas lack of credibility and not the
probability or the improbability of the charge. In this regard, a
different provision applies.

It is a rule of long standing that factual findings of the Court of

Appeals, if supported by substantial evidence, are conclusive and
binding on the parties and are not reviewable by this Court.13
This Court is, after all, not a trier of facts. One of the exceptions,
however, is when the findings of the Court of Appeals are
contrary to those of the trial court or a quasi-judicial body, like
petitioner herein.14

Credibility means the disposition and intention to tell the truth in

the testimony given. It refers to a persons integrity, and to the
fact that he is worthy of belief.19 A witness may be discredited
by evidence attacking his general reputation for truth,20
honesty21 or integrity.22 Section 11, Rule 132 of the same
Revised Rules on Evidence reads:

Here, the Court of Appeals and the CSC are poles apart in their
appreciation of Magdalenas derogatory record. While the former
considered it of "vital and paramount importance" in determining
the truth of her charge, the latter dismissed it as of "minor
significance." This contrariety propels us to the elusive area of
character and reputation evidence.
Generally, the character of a party is regarded as legally
irrelevant in determining a controversy.15 One statutory
exception is that relied upon by respondent, i.e., Section 51 (a)
3, Rule 130 of the Revised Rules on Evidence, which we quote
here:
51. Character evidence
admissible; exceptions.
"SEC.

EVIDENCE

not

generally

"SEC. 11. Impeachment of adverse partys witness.

A witness may be impeached by the party against
whom he was called, by contradictory evidence, by
evidence that his general reputation for truth,
honesty, or integrity is bad, or by evidence that
he has made at other times statements inconsistent
with his present testimony, but not by evidence of
particular wrongful acts, except that it may be
shown by the examination of the witness, or the
record of the judgment, that he has been
convicted of an offense."
Although she is the offended party, Magdalena, by testifying in
her own behalf, opened herself to character or reputation attack
pursuant to the principle that a party who becomes a witness in
his own behalf places himself in the same position as any other

AGUSTIN, E.P. | 212

witness, and may be impeached by an attack on his character or

reputation.23
With the foregoing disquisition, the Court of Appeals is correct in
holding that the character or reputation of a complaining witness
in a sexual charge is a proper subject of inquiry. This leads us to
the ultimate question is Magdalenas derogatory record
sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of
Baguio City relate to acts committed in the 80s, particularly,
1985 and 1986. With respect to the complaints filed with the
Chairmen of Barangay Gabriela Silang and Barangay Hillside, the
acts complained of took place in 1978 to 1979. In the instant
administrative case, the offense was committed in 1994. Surely,
those cases and complaints are no longer reliable proofs of
Magdalenas character or reputation. The Court of Appeals,
therefore, erred in according much weight to such evidence.
Settled is the principle that evidence of ones character or
reputation must be confined to a time not too remote from the
time in question.24 In other words, what is to be determined is
the character or reputation of the person at the time of the trial
and prior thereto, but not at a period remote from the
commencement of the suit.25 Hence, to say that Magdalenas
credibility is diminished by proofs of tarnished reputation existing
almost a decade ago is unreasonable. It is unfair to presume
that a person who has wandered from the path of moral
righteousness can never retrace his steps again. Certainly, every
person is capable to change or reform.

"Q Was there any conversation between you and Dr.

Belagan during the inspection on the first floor and
the second floor?
A There was, sir. It was a casual conversation that we
had with regard to my family, background, how the
school came about, how I started with the project.
That was all, sir.
Q Nothing about any form of sexual harassment, in
words or in deeds?
A Sir, because he inspected the second floor twice,
sir. We went up to the stairs twice, sir.
Q Why?
A I really dont know what was the reason behind, sir.
But on the second inspection, sir, I told him that as of
that time I had some transients with me. I was
making use of the premises for transients because
that was summer then, sir. And I already started
paying the place so I said, Sir, I have some transients
with me in the evening and he said, You know Mrs.
Gapuz, I am interested to stay in one of the rooms as
one your boarders. But I respectfully declined saying,
Sir, I think for delicadeza I cannot accept you. Not
that I dont want you to be here but people might
think that I am keeping you here and that would
prejudice my permit, sir.

Second, respondent failed to prove that Magdalena was

convicted in any of the criminal cases specified by respondent.
The general rule prevailing in a great majority of jurisdictions is
that it is not permissible to show that a witness has been
arrested or that he has been charged with or prosecuted for a
criminal offense, or confined in jail for the purpose of impairing
his credibility.26 This view has usually been based upon one or
more of the following grounds or theories: (a) that a mere
unproven charge against the witness does not logically tend to
affect his credibility, (b) that innocent persons are often arrested
or accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally established, and
(d) that a witness may not be impeached or discredited by
evidence of particular acts of misconduct.27 Significantly, the
same Section 11, Rule 132 of our Revised Rules on Evidence
provides that a witness may not be impeached by evidence of
particular wrongful acts. Such evidence is rejected because of
the confusion of issues and the waste of time that would be
involved, and because the witness may not be prepared to
expose the falsity of such wrongful acts.28 As it happened in this
case, Magdalena was not able to explain or rebut each of the
charges against her listed by respondent.

ASEC R. CAPINPIN:

But more than anything else, what convinces us to sustain the

Resolution of the CSC is the fact that it is supported by
substantial evidence. As aptly pointed out by the Solicitor
General, Magdalena testified in a straightforward, candid and
spontaneous manner. Her testimony is replete with details, such
as the number of times she and respondent inspected the preschool, the specific part of the stairs where respondent kissed
her, and the matter about her transient boarders during
summer. Magdalena would not have normally thought about
these details if she were not telling the truth. We quote her
testimony during the cross-examination conducted by DECS
Assistant Secretary Romeo Capinpin and Undersecretary Antonio
Nachura, thus:

A Sir, on the topmost of the stairs.

EVIDENCE

Q When did the alleged kissing occur? Was it during

the first time that you went up with him or the second
time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?
A Yes, sir.
Q Do you recall what portion of the stairs where you
were during the alleged kissing?

Q Before you went down?

A Yes, sir. At the topmost because there is a base
floor going up to the stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the
topmost?
A Yes sir.

AGUSTIN, E.P. | 213

Q Part of the floor of the building?

Q What time was that?

A Yes, sir. Topmost, sir?

A I cannot remember, sir.

ASEC R. CAPINPIN:

Q Was it morning, afternoon?

Q Will you kindly tell us your relative position at that

time?

A I think it was in the morning, sir.

A Sir, on the second time that we went up and I

mentioned about these transients that I had then and
he wanted to stay in the place in one of the rooms
and then I declined and I was still showing the rooms
simultaneously. On the last, the biggest room that I
had, he said, No. Never mind, I am not going to see
that anymore. So he waited for me there and upon
reaching the place, as I was to step down on the first
step going down, he placed his arm and held me
tightly and planted the kiss on my cheek, sir.
Q You said that he wanted to stay in one of the
rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I
made use of the time to get some transients.
Q And he was telling you that he wanted to occupy
one of the rooms?
A Yes, but I declined, sir for delicadeza.
Q At that time, there were no transients yet.
A When he came over for the inspection sir, nobody
was there."29
The above testimony does not stand in isolation. It is
corroborated by Peter Ngabit, DECS Assistant Division
Superintendent. Ngabit testified that Magdalena reported to him
that respondent kissed her and asked her for a "date."
"Q I would like to call your attention to Exhibit A
which is the affidavit of Mrs. Magdalena B. Gapuz,
particularly item no. 8, and may I read for your
information That the Monday after the incident, I
went to the DECS Division Office expecting to get
favorable recommendation from the DECS Regional
Office for the issuance of my permit. That I
proceeded to the Superintendent and asked him, Sir,
kumusta yung application ko and he said, mag date
muna tayo but I refused and explained that I am
married, after which I proceeded to the Office of Asst.
Superintendent Peter Ngabit to relate the incident and
then left the Division Office. Do you remember if Mrs.
Gapuz went to your Office on the particular day?
A Yes, sir.

EVIDENCE

Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in
your office?
A When she came to my Office, she was relating
about that and she was even insulting me saying
among others that I was a useless fixture in that
Office because I cannot do anything with the
processing of her paper or application.
Q It says here that she would relate the
incident to you. Did she relate any incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went
to visit her school, he stole a kiss from her and
that she was saying that when she asked Supt.
Belagan for her papers, she was asked for a
date before the Indorsement. After that, she
left."30
With Magdalenas positive testimony and that of Ngabit, how can
we disregard the findings of the DECS and the CSC? Surely, we
cannot debunk it simply because of the Court of Appeals
outdated characterization of Magdalena as a woman of bad
reputation. There are a number of cases where the triers of fact
believe the testimony of a witness of bad character31 and refuse
to believe one of good character.32 As a matter of fact, even a
witness who has been convicted a number of times is worthy of
belief, when he testified in a straightforward and convincing
manner.33
At this juncture, it bears stressing that more than anybody else,
it is the DECS investigating officials who are in a better position
to determine whether Magdalena is telling the truth considering
that they were able to hear and observe her deportment and
manner of testifying.34
In reversing the CSCs Resolutions, the Court of Appeals ruled
that "there is ample evidence to show that Magdalena had a
motive" in accusing respondent, i.e., to pressure him to issue a
permit. This is unconvincing. The record shows that respondent
had already issued the permit when Magdalena filed her lettercomplaint. Indeed, she had no more reason to charge

AGUSTIN, E.P. | 214

respondent administratively, except of course to vindicate her

honor.
Petitioner prays that we sustain its ruling penalizing respondent
for grave misconduct and not merely for disgraceful or immoral
conduct which is punishable by suspension for six (6) months
and one (1) day to one (1) year for the first offense.35
Misconduct means intentional wrongdoing or deliberate violation
of a rule of law or standard of behavior, especially by a
government official.36 To constitute an administrative offense,
misconduct should relate to or be connected with the
performance of the official functions and duties of a public
officer.37 In grave misconduct as distinguished from simple
misconduct, the elements of corruption, clear intent to violate
the law or flagrant disregard of established rule, must be
manifest.38 Corruption as an element of grave misconduct
consists in the act of an official or fiduciary person who
unlawfully and wrongfully uses his station or character to
procure some benefit for himself or for another person, contrary
to duty and the rights of others.39 This is apparently present in
respondents case as it concerns not only a stolen kiss but also a
demand for a "date," an unlawful consideration for the issuance
of a permit to operate a pre-school. Respondents act clearly
constitutes grave misconduct, punishable by dismissal.40

While we will not condone the wrongdoing of public officers and

employees, however, neither will we negate any move to
recognize and remunerate their lengthy service in the
government.
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals dated January 8, 1998 in CA-G.R. SP No. 44180
is REVERSED. The CSC Resolution Nos. 966213 and 972423 are
AFFIRMED, subject to the modification that respondent
ALLYSON BELAGAN is SUSPENDED from office without pay
for ONE (1) YEAR, with full credit of his preventive suspension.
SO ORDERED.

Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago,

Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr.,
Azcuna*, Tinga, Chico-Nazario, and Garcia, JJ., concur.

We are, however, not inclined to impose the penalty of dismissal

from the service. Respondent has served the government for a
period of 37 years, during which, he made a steady ascent from
an Elementary Grade School Teacher to Schools Division
Superintendent. In devoting the best years of his life to the
education department, he received numerous awards.41 This is
the first time he is being administratively charged. He is in the
edge of retirement. In fact, he had filed his application for
retirement when Magdalena filed her complaint. Section 16, Rule
XIV, of the Rules Implementing Book V of Executive Order No.
292 provides:
"SEC. 16. In the determination of penalties to be
imposed, mitigating and aggravating circumstances
may be considered. x x x."
The mitigating circumstances are enumerated in Section 53, Rule
IV, of the Uniform Rules on Administrative Cases in the Civil
Service,42 which reads in part:
"SEC. 53. Extenuating, Mitigating, Aggravating, or
Alternative Circumstances. In the determination of
the penalties to be imposed, mitigating, aggravating
and alternative circumstances attendant to the
commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxx

xxx

j. length of service
xxx

xxx

l. and other analogous cases."

Conformably with our ruling in a similar case of sexual
harassment,43 and respondents length of service, unblemished
record in the past and numerous awards,44 the penalty of
suspension from office without pay for one (1) year is in order.

EVIDENCE

AGUSTIN, E.P. | 215

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 172198

June 16, 2009

MA. LOURDES C. DE CASTRO, Petitioner,

vs.
CRISPINO DE CASTRO, JR., OFFICE OF THE CITY
PROSECUTOR FOR MANILA, and THE OFFICE OF THE
SOLICITOR GENERAL, Respondents.
DECISION
PUNO, C.J.:
This is a petition for review on certiorari of the Decision1 of the
Court of Appeals in CA-G.R. SP No. 81856, dated April 4, 2006,
which found no grave abuse of discretion in the Orders dated
August 20, 2003 and December 12, 2003, issued by Acting
Judge Marvic Balisi-Umali of the Regional Trial Court (RTC) of
Manila in Civil Case No. 96-79135 for the declaration of nullity of
marriage.
First, the facts:
Petitioner Ma. Lourdes C. De Castro and private respondent
Crispino De Castro, Jr. were married on January 1, 1971. In
1996, private respondent filed a petition2 for the declaration of
nullity of their marriage before the RTC of Manila.
In his petition, private respondent alleged that he was impulsive
and reckless in his youth; that while still in school, he
impregnated petitioner, and they got married so as not to
expose both their families to further embarrassment; that their
quarrels intensified during the marriage; that due to immaturity
and inability to cope with their problems, he abandoned his
family many times and became involved in affairs with different
women. He further alleged that they tried to save their marriage
through counseling, but to no avail. In 1992, he left the family
home for good, and lived with another woman with whom he
had three illegitimate children.
For failure of petitioner to file her Answer to the petition and
upon motion of private respondent, the case was set for hearing
and private respondent testified. Further, he presented
psychiatrist, Dr. Cecilia Albaran, as an expert witness. He then
rested his case, with no opposition from the public prosecutor.
On June 22, 1998, the RTC annulled the marriage between
petitioner and private respondent, viz.:
After a thorough review of the evidence adduced and the
testimonies of petitioner [herein private respondent] and Dra.
Cecilia Albaran, the Court finds and so holds that both parties
are psychologically incapacitated to enter into marriage. The
Court, therefore, is convinced that from the evidence presented,
there appears sufficient basis to declare that herein parties are
psychologically incapacitated to enter into marriage, which,
under the provisions of the Family Code, is a valid ground for the
annulment of marriage.

EVIDENCE

WHEREFORE, premises considered, Decision is hereby rendered

declaring the marriage entered into by the parties herein on
January 1, 1971 at Santuario de San Jose, Greenhills,
Mandaluyong City null and void and of no legal effect.
The Local Civil Registrar of Mandaluyong City is hereby directed
to cancel from the Registry of Marriages the marriage contract
entered into by the parties herein on January 1, 1971 at
Mandaluyong City.
Let a copy of this Decision be furnished the Local Civil Registrar
of Mandaluyong City for proper annotation and recording, as
required by law; the Local Civil Registrar of Manila and the
National Census and Statistics Office for record purposes.
SO ORDERED.3
On August 3, 1998, petitioner filed a Motion for Leave4 to file an
Omnibus Motion5 seeking a new trial or reconsideration of the
June 22, 1998 Decision. She alleged that she was misled and
prevented from participating in the annulment case by private
respondent, because of his promise of continuous adequate
support for the children, and the transfer of title to their three
children of their family home, including its lot, located in Blue
Ridge Subdivision, Libis, Quezon City and another piece of real
property in Tagaytay.
The trial court granted the omnibus motion in an Order dated
December 11, 1998. In the Order, petitioner was required to
submit a question-and-answer form affidavit which would
constitute her direct testimony. Further, the cross-examination
of petitioner and her witnesses was scheduled on February 4,
1999.
On December 27, 1999, petitioner filed her Answer. She
controverted the allegations of private respondent. She alleged
that they were both psychologically and emotionally prepared for
marriage; that, except for a few slightly turbulent months in
1981, their life as a married couple was smooth and blissful and
remained so for twenty years, or until 1990; that they were well
adapted to each other, and their quarrels were few and far
between; that the communication lines between them were
always open and they were able to settle their differences
through discussion; that private respondent was a devoted and
faithful husband, and did not abandon them repeatedly; and that
petitioner knew of only one extramarital affair of private
respondent.
The trial court conducted hearings on petitioner's (1) application
for support pendente lite and (2) urgent motion for judicial
deposit of petitioner's [herein private respondent's] separation
benefits,6 in light of his retirement/separation from employment
at Petron Corporation, effective August 31, 2000; and private
respondent's (3) motion for judicial approval of the alleged
voluntary agreement on the dissolution of the conjugal
partnership of gains and partition of the conjugal properties.7
The first has been resolved,8 but the second and third remain
pending.
On July 17, 2002, petitioner was to present her first witness. The
trial court reset the hearing to August 21, 2002 as there was no
return of the notice sent to private respondent and his counsel.9
On August 21, 2002, petitioner started her direct testimony.
However, considering the length of her testimony, the

AGUSTIN, E.P. | 216

continuance of her direct examination was set on October 2,

2002.
On September 30, 2002, private respondent moved to reset the
October 2, 2002 hearing to November 13, 2002, due to his trip
to Europe.10
On November 8, 2002, private respondent again moved to reset
the November 13, 2002 hearing to December 11, 2002 or at the
earliest possible date as the calendar of the trial court would
allow, for the reason that his counsel was "out of the country for
important personal reasons and cannot attend the hearing."11

In the hearing on August 20, 2003, counsel for petitioner again

requested that it be cancelled and reset due to the unavailability
of witnesses. Petitioner was still in the U.S. taking care of her
newborn grandchild, while Dr. Maria Cynthia Ramos-Leynes, who
conducted a psychiatric evaluation on petitioner, was likewise
out of the country, attending a convention. The motion was
denied by the trial court, viz.:
In its Order of July 25, 2003, respondent was given today her
last chance to present her evidence, with the warning that if no
evidence is presented today, then the case shall be submitted
for decision.

On the next hearing of February 20, 2003, petitioner's counsel

again moved for the resetting of the hearing to March 27,
2003.13

In today's hearing, respondent failed to present any evidence. As

ordered and on motion of petitioner's counsel, the Court deems
the respondent to have waived her right to present further
evidence. In view thereof, she is hereby given fifteen (15) days
from today within which to make an offer of her exhibits, copy of
which she shall furnish the petitioner's counsel, who is hereby
given the same period of time from receipt thereof within which
to make his comments thereon. Within thirty (30) days from
receipt of the Court's resolution on respondent's offer of exhibits,
parties are directed to file their respective Memorandum of
Authorities.

On March 27, 2003, the hearing was reset to April 10, 2003
because the Presiding Judge was on official leave.14

Thereafter, this case which is of 1996 vintage shall be submitted

for the decision once again.

On April 10, 2003, the hearing was again reset to May 8, 2003,
by agreement of the parties.15

SO ORDERED.

During the hearing on December 11, 2002, petitioner's counsel

moved for its cancellation because of the absence of petitioner
who was at that time attending a very urgent business meeting
in connection with her volunteer work for Bantay Bata. The
hearing was reset to February 6, 2003.12 However, the records
reveal that no hearing was conducted on said date.

Given in open Court, this 20th day of August, 2003 in Manila.18

On May 8, 2003, the hearing was likewise reset to July 25, 2003
because of the absence of counsel of both petitioner and private
respondent.16
During the hearing on July 25, 2003, petitioner's counsel moved
to reset the hearing because of the absence of petitioner who
was then in the U.S. helping her daughter in taking care of her
newborn baby. The trial court then ordered the resetting of the
hearing to August 20, 2003 for the last time, viz.:
As prayed for by respondent's counsel for the cancellation of
today's hearing as according to her the respondent is out of the
country, over the vehement objection of petitioner's counsel, the
hearing today is cancelled and reset for the last time to August
20, 2003 at 9:30 o'clock (sic) in the morning.
In the event the respondent cannot present any evidence on the
next scheduled hearing, on proper motion the case shall be
submitted for decision.
It appears that the presentation of respondent's evidence had
been reset twice at the instance of defendant's counsel, the
respondent is hereby directed to pay a postponement fee of
Php100.00 and to show proof of compliance.
Both counsels are notified in open Court.
SO ORDERED.
Given in open Court this 25th day of July 2003 in the City of
Manila, Philippines.17

Petitioner moved to reconsider the August 20, 2003 Order. She

claimed that her reasons for her absence during the hearings
were justifiable and she had no intention to delay the
proceedings of this case. Further, she argued that there were
pending incidents yet to be resolved by the trial court, referring
to her motion for judicial deposit of private respondent's
separation benefits and private respondents motion for judicial
approval of the alleged voluntary agreement on the dissolution
of the conjugal partnership of gains and partition of the conjugal
properties.19
This motion was denied in an Order dated December 12, 2003,
which states:
This resolves respondents Motion for Reconsideration on the
August 20, 2003 Order directing her to submit her formal offer
of exhibits after the Court deemed her to have waived her right
to present further evidence for her failure to appear on the
hearing which was previously set on said date by her counsel.
The record of the case reveals that respondent commenced the
presentation of her evidence on August 21, 2002. The
subsequent settings were all cancelled on motion of
respondents counsel for one reason or another.
On July 25, 2003, the hearing was again cancelled on motion of
respondents counsel and was reset for the last time to August
20, 2003 with the warning that if the respondent still fails to
present evidence, the case shall be submitted for decision. On
August 20, 2003, respondent failed to adduce her evidence.
The respondents Motion for Reconsideration deserves a DENIAL.

EVIDENCE

AGUSTIN, E.P. | 217

It is more than apparent that the respondent was given all

opportunity to adduce her evidence but she failed to do so. The
Court had stretched its leniency to the limit but it is apparent the
respondent is merely trifling with the Courts precious time.
Wherefore, respondents Motion for Reconsideration is hereby
DENIED. Respondent is given ten (10) days from notice to file
her offer of exhibits.
SO ORDERED.
Manila, December 12, 2003.20
Petitioner filed a petition for certiorari under Rule 65 of the Rules
of Court before the Court of Appeals, seeking to annul the
Orders dated August 20, 2003 and December 12, 2003, for
having been issued with grave abuse of discretion. Upon motion
of petitioner, the trial court held in abeyance its Order to file the
formal offer of exhibits, pending resolution by the Court of
Appeals of the petition for certiorari.
The Court of Appeals dismissed the petition. It ruled:
. . . A reading of the assailed Orders reveals that public
respondents denial of petitioners motion for cancellation and
resetting of the hearing for continuance of her testimony was for
cause. We take notice of the several postponements of the
hearings on the continuation of petitioners testimony, mostly on
account of petitioners own urgings. Particularly, we find
remarkably militating against petitioners cause the Order dated
25 July 2003 where public respondent, maybe exasperated at
petitioners seemingly shallow interest to proceed with the case
as manifested in the prior motions to cancel the hearing,
dutifully warned that another postponement of the scheduled
presentation of testimony would compel the court to consider
the case submitted for decision. We see this as a reasonable
exercise of discretion on the part of public respondent. Petitioner
was properly apprised and warned of the consequence of
another non-appearance in the hearing. Petitioner insists that
her inability to be present on the scheduled hearing on August
20, 2003 was due to physical impossibility to appear as she was
out of the country on that day. We find the excuse flimsy. Aware
in advance that she could not make it on the 20 August 2003
hearing, the least that she could have done was to instruct her
counsel to make a timely representation with the court by filing
an early motion-manifestation for the resetting of the hearing.
Between July 25, 2003 and August 20, 2003 she had sufficient
time to file one. Had the counsel not waited for the August 20,
2003 hearing to make the motion, petitioner may have elicited a
kinder action from public respondent.

remedy of appeal is an adequate relief always available to

petitioner. Hence, certiorari, in the case at bar, will not lie.
WHEREFORE, the petition is DISMISSED.21
Hence, this petition where petitioner invokes the following
grounds:
THE COURT OF APPEALS ERRED IN RULING THAT JUDGE
UMALI DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN
ISSUING HIS ORDERS DATED 20 AUGUST 2003 AND 12
DECEMBER 2003.22
Petitioner argues that the lower courts erred in ruling that she
waived her right to present further evidence when she failed to
appear at the August 20, 2003 hearing. She contends that in
effect, she was declared in default, which is violative of the state
policy on marriage as a social institution and the due process
clause of the Constitution.
We disagree.
The instant case was set for hearing twelve times, or on the
following dates:
1. July 17, 2002
2. August 21, 2002
3. October 2, 2002
4. November 13, 2002
5. December 11, 2002
6. February 6, 2003
7. February 20, 2003
8. March 27, 2003
9. April 10, 2003
10. May 8, 2003
11. July 25, 2003

xxx

12. August 20, 2003

The Orders being assailed are interlocutory that will lead to a

rendering of a judgment in the case by public respondent.
Should such judgment be adverse to petitioner as she assumes it
would be, she is not completely rendered helpless and without
remedy as there will always be the remedy of appeal where facts
and issues raised in the instant petition such as errors of law and
errors of facts will still be ventilated and passed upon.

The hearing of March 27, 2003 was cancelled because the

presiding judge was on official leave, while the April 10, 2003
hearing was reset by agreement of the parties. Likewise, the
hearing of May 8, 2003 was reset because the counsels of both
parties were absent.

Certiorari is not available as a remedy against an interlocutory

order except when such interlocutory order is patently erroneous
and the remedy of appeal would not afford an adequate and
expeditious relief. We do not find the assailed Orders patently
erroneous and in case of an eventual unfavorable judgment, the

On the other hand, the following postponements were made at

the instance of private respondent: (1) October 2, 2002 hearing,
where private respondent, on September 30, 2002, moved to
reset the hearing because of his trip to Europe; and (2)
November 13, 2002 hearing, where private respondent, on

EVIDENCE

AGUSTIN, E.P. | 218

November 8, 2002, moved to reset the hearing because his

counsel was out of the country for important personal reasons.
In contrast, the following postponements were made at the
instance of petitioner: (1) December 11, 2002 hearing, where
petitioner's counsel, on the day itself, moved for the cancellation
of the hearing because of the absence of his client who was at
that time attending a very urgent business meeting in
connection with her volunteer work for Bantay Bata; (2)
February 20, 2003 hearing, where petitioner's counsel, on the
day itself, moved for the resetting of the hearing; (3) July 25,
2003 hearing, where petitioner's counsel, on the day itself,
moved to reset the hearing because his client was in the U.S.
taking care of her newborn grandchild; and (4) August 20, 2003
hearing, where petitioner's counsel, again only on the day itself,
moved to cancel the hearing because his client was still in the
U.S. Further, Dr. Ramos-Leynes, petitioner's witness who
conducted a psychiatric evaluation on her, was likewise out of
the country.
We take note of the fact that all motions for postponement by
petitioner were made on the scheduled hearing dates
themselves. On the August 20, 2003 hearing, despite previous
warning that no further postponement would be allowed,
petitioner still failed to appear. We agree with the Court of
Appeals when it pointed out that petitioner obviously knew in
advance that she could not make it to the August 20, 2003
hearing. As of the last scheduled hearing of July 25, 2003, she
was still out of the country. The least that petitioner could have
done was to instruct her counsel to make a timely representation
with the trial court by filing an early motion-manifestation for the
resetting of the hearing. Between July 25, 2003 and August 20,
2003 she had sufficient time to file one. Obviously, the warning
by the court of the consequence of another non-appearance in
the hearing fell on deaf ears. After having been granted
numerous motions for postponement, petitioner cannot now
claim that she was denied due process. In Ortigas, Jr. v.
Lufthansa German Airlines,23 we ruled that:
Where a party seeks postponement of the hearing of this case
for reasons caused by his own inofficiousness, lack of
resourcefulness and diligence if not total indifference to his own
interests or to the interests of those he represents, thereby
resulting in his failure to present his own evidence, the court
would not extend to him its mantle of protection. If it was he
who created the situation that brought about the resulting
adverse consequences, he cannot plead for his day in court nor
claim that he was so denied of it.
Further in Hap Hong Hardware Co. v. Philippine
Company,24 we sustained the trial court's denial of a motion for
postponement on the ground that the defendant's witnesses,
officers of the company, could not come because it was the
beginning of the milling season in the municipality of San Jose,
Mindoro Occidental and their presence in the Central was
necessary. We held that the reason adduced was "not
unavoidable and one that could not have been foreseen." We
ratiocinated:
The reason adduced in support of the motion for postponement
is not unavoidable and one that could not have been foreseen.
Defendant ought to have known long before the date of trial that
the milling season would start when the trial of the case would
be held. The motion should have been presented long in
advance of the hearing, so that the court could have taken steps
to postpone the trial without inconvenience to the adverse party.
As it is, however, the motion was presented on the day of the
trial. Knowing as it should have known that postponements lie in

EVIDENCE

the court's discretion and there being no apparent reason why

the defendant could not have presented the motion earlier, thus
avoiding inconvenience to the adverse party, the appellant can
not claim that the trial court erred in denying postponement.
Under all the circumstances we hold that the court was perfectly
justified in denying the motion for postponement.
In the case at bar, petitioner's excuse that she was still in the
U.S. taking care of her newborn grandchild, while her witness,
Dr. Maria Cynthia Ramos-Leynes, who conducted a psychiatric
evaluation on her, was likewise out of the country, attending a
convention was unjustified. These reasons were "not
unavoidable and one that could not have been foreseen." The
date of the trial was set one month prior, and as of July 25,
2003, petitioner was in the U.S. Certainly, petitioner would know
in advance if she could make it to the August 20, 2003 hearing.
Likewise, attending a convention is a scheduled event, also
something known in advance. It is the basic duty of a litigant to
move for postponement before the day of the hearing, so that
the court could order its resetting and timely inform the adverse
party of the new date. This was not the case at bar for the
subject motion was presented only on the day of the trial
without any justification. We thus hold that the trial court did not
abuse its discretion in denying the motion for postponement.
Consequently, we cannot strike down the trial courts following
orders: (1) dated August 20, 2003, which denied petitioners
motion for postponement, and, instead, directed petitioner to
submit her formal offer of exhibits after the trial court
considered her to have waived her right to present further
evidence; and (2) dated December 12, 2003, which denied
petitioner's motion for reconsideration. These orders are not
violative of the state policy on marriage as a social institution,
for the trial judge has the duty to resolve judicial disputes
without unreasonable delay.
Petitioner contends that because her direct examination has not
been completed and as she has not been cross-examined, her
testimony has become useless. Apparently, petitioner is alluding
to the rule that oral testimony may be taken into account only
when it is complete, that is, if the witness has been wholly crossexamined by the adverse party; until such cross-examination has
been finished, the testimony of the witness cannot be considered
as complete and may not, therefore, be allowed to form part of
the evidence to be considered by the court in deciding the
case.25 The rule will not apply to the instant case.
Private respondent, who was present in court during the August
20, 2003 hearing and did not register any objection to the trial
court's order nor move to strike out petitioner's testimony from
the records, is deemed to have waived his right to crossexamine petitioner. Thus, petitioner's testimony is not rendered
worthless. The waiver will not expunge the testimony of
petitioner off the records. The trial court will still weigh the
evidence presented by petitioner vis--vis that of private
respondent's. The situation is not akin to default at all, where,
for failure of defendant to file his responsive pleading and after
evidence for the plaintiff has been received ex parte, the court
renders a judgment by default on the basis of such
evidence.1avvphi1
Lastly, the appellate court correctly pointed out that the assailed
Orders are interlocutory and there is yet no judgment in the case
by the court a quo. If the trial court renders a judgment that is
adverse to petitioner, she can always avail of the remedy of
appeal to protect her legal rights.

AGUSTIN, E.P. | 219

IN VIEW WHEREOF, the petition is DENIED. The Decision of the

Court of Appeals in CA-G.R. SP No. 81856, dated April 4, 2006,
is AFFIRMED.
SO ORDERED.
REYNATO S. PUNO
Chief Justice

EVIDENCE

AGUSTIN, E.P. | 220

Republic of the Philippines

SUPREME COURT
Baguio City<
THIRD DIVISION
G.R. No. 160855

April 16, 2008

CONCEPCION CHUA GAW, petitioner,

vs.
SUY BEN CHUA and FELISA CHUA, respondents.
DECISION
NACHURA, J.:
This is a Petition for Review on Certiorari from the Decision1 of
the Court of Appeals (CA) in CA-G.R. CV No. 66790 and
Resolution2 denying the motion for reconsideration. The assailed
decision affirmed the ruling of the Regional Trial Court (RTC) in
a Complaint for Sum of Money in favor of the plaintiff.
The antecedents are as follows:
Spouses Chua Chin and Chan Chi were the founders of three
business enterprises3 namely: Hagonoy Lumber, Capitol Sawmill
Corporation, and Columbia Wood Industries. The couple had
seven children, namely, Santos Chua; Concepcion Chua; Suy Ben
Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita
Chua. On June 19, 1986, Chua Chin died, leaving his wife Chan
Chi and his seven children as his only surviving heirs. At the time
of Chua Chins death, the net worth of Hagonoy Lumber was
P415,487.20.4
On December 8, 1986, his surviving heirs executed a Deed of
Extra-Judicial Partition and Renunciation of Hereditary Rights in
Favor of a Co-Heir5 (Deed of Partition, for brevity), wherein the
heirs settled their interest in Hagonoy Lumber as follows: onehalf (1/2) thereof will pertain to the surviving spouse, Chan Chi,
as her share in the conjugal partnership; and the other half,
equivalent to P207,743.60, will be divided among Chan Chi and
the seven children in equal pro indiviso shares equivalent to
P25,967.00 each.6 In said document, Chan Chi and the six
children likewise agreed to voluntarily renounce and waive their
shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc
Huan.
In May 1988, petitioner Concepcion Chua Gaw and her husband,
Antonio Gaw, asked respondent, Suy Ben Chua, to lend them
P200,000.00 which they will use for the construction of their
house in Marilao, Bulacan. The parties agreed that the loan will
be payable within six (6) months without interest.7 On June 7,
1988, respondent issued in their favor China Banking
Corporation Check No. 2408108 for P200,000.00 which he
delivered to the couples house in Marilao, Bulacan. Antonio later
encashed the check.
On August 1, 1990, their sister, Chua Sioc Huan, executed a
Deed of Sale over all her rights and interests in Hagonoy Lumber
for a consideration of P255,000.00 in favor of respondent.9
Meantime, the spouses Gaw failed to pay the amount they
borrowed from respondent within the designated period.
Respondent sent the couple a demand letter,10 dated March 25,
1991, requesting them to settle their obligation with the warning

EVIDENCE

that he will be constrained to take the appropriate legal action if

they fail to do so.
Failing to heed his demand, respondent filed a Complaint for
Sum of Money against the spouses Gaw with the RTC. The
complaint alleged that on June 7, 1988, he extended a loan to
the spouses Gaw for P200,000.00, payable within six months
without interest, but despite several demands, the couple failed
to pay their obligation.11
In their Answer (with Compulsory Counterclaim), the spouses
Gaw contended that the P200,000.00 was not a loan but
petitioners share in the profits of Hagonoy Lumber, one of her
familys businesses. According to the spouses, when they
transferred residence to Marilao, Bulacan, petitioner asked
respondent for an accounting, and payment of her share in the
profits, of Capital Sawmills Corporation, Columbia Wood
Industries Corporation, and Hagonoy Lumber. They claimed that
respondent persuaded petitioner to temporarily forego her
demand as it would offend their mother who still wanted to
remain in control of the family businesses. To insure that she will
defer her demand, respondent allegedly gave her P200,000.00
as her share in the profits of Hagonoy Lumber.12
In his Reply, respondent averred that the spouses Gaw did not
demand from him an accounting of Capitol Sawmills Corporation,
Columbia Wood Industries, and Hagonoy Lumber. He asserted
that the spouses Gaw, in fact, have no right whatsoever in these
businesses that would entitle them to an accounting thereof.
Respondent insisted that the P200,000.00 was given to and
accepted by them as a loan and not as their share in Hagonoy
Lumber.13
With leave of court, the spouses Gaw filed an Answer (with
Amended Compulsory Counterclaim) wherein they insisted that
petitioner, as one of the compulsory heirs, is entitled to onesixth (1/6) of Hagonoy Lumber, which the respondent has
arrogated to himself. They claimed that, despite repeated
demands, respondent has failed and refused to account for the
operations of Hagonoy Lumber and to deliver her share therein.
They then prayed that respondent make an accounting of the
operations of Hagonoy Lumber and to deliver to petitioner her
one-sixth (1/6) share thereof, which was estimated to be worth
not less than P500,000.00.14
In his Answer to Amended Counterclaim, respondent explained
that his sister, Chua Sioc Huan, became the sole owner of
Hagonoy Lumber when the heirs executed the Deed of Partition
on December 8, 1986. In turn, he became the sole owner of
Hagonoy Lumber when he bought it from Chua Sioc Huan, as
evidenced by the Deed of Sale dated August 1, 1990.15
Defendants, in their reply,16 countered that the documents on
which plaintiff anchors his claim of ownership over Hagonoy
Lumber were not true and valid agreements and do not express
the real intention of the parties. They claimed that these
documents are mere paper arrangements which were prepared
only upon the advice of a counsel until all the heirs could reach
and sign a final and binding agreement, which, up to such time,
has not been executed by the heirs.17
During trial, the spouses Gaw called the respondent to testify as
adverse witness under Section 10, Rule 132. On direct
examination, respondent testified that Hagonoy Lumber was the
conjugal property of his parents Chua Chin and Chan Chi, who
were both Chinese citizens. He narrated that, initially, his father
leased the lots where Hagonoy Lumber is presently located from

AGUSTIN, E.P. | 221

his godfather, Lu Pieng, and that his father constructed the twostorey concrete building standing thereon. According to
respondent, when he was in high school, it was his father who
managed the business but he and his other siblings were helping
him. Later, his sister, Chua Sioc Huan, managed Hogonoy
Lumber together with their other brothers and sisters. He stated
that he also managed Hagonoy Lumber when he was in high
school, but he stopped when he got married and found another
job. He said that he now owns the lots where Hagonoy Lumber
is operating.18
On cross-examination, respondent explained that he ceased to
be a stockholder of Capitol Sawmill when he sold his shares of
stock to the other stockholders on January 1, 1991. He further
testified that Chua Sioc Huan acquired Hagonoy Lumber by
virtue of a Deed of Partition, executed by the heirs of Chua Chin.
He, in turn, became the owner of Hagonoy Lumber when he
bought the same from Chua Sioc Huan through a Deed of Sale
dated August 1, 1990. 19
On re-direct examination, respondent stated that he sold his
shares of stock in Capitol Sawmill for P254,000.00, which
payment he received in cash. He also paid the purchase price of
P255,000.00 for Hagonoy Lumber in cash, which payment was
not covered by a separate receipt as he merely delivered the
same to Chua Sioc Huan at her house in Paso de Blas,
Valenzuela. Although he maintains several accounts at Planters
Bank, Paluwagan ng Bayan, and China Bank, the amount he paid
to Chua Sioc Huan was not taken from any of them. He kept the
amount in the house because he was engaged in rediscounting
checks of people from the public market. 20
On December 10, 1998, Antonio Gaw died due to cardio vascular
and respiratory failure.21
On February 11, 2000, the RTC rendered a Decision in favor of
the respondent, thus:
WHEREFORE, in the light of all the foregoing, the
Court hereby renders judgement ordering defendant
Concepcion Chua Gaw to pay the [respondent] the
following:
1. P200,000.00 representing the principal obligation
with legal interest from judicial demand or the
institution of the complaint on November 19, 1991;
2. P50,000.00 as attorneys fees; and
3. Costs of suit.
The defendants counterclaim is hereby dismissed for
being devoid of merit.
SO ORDERED.22
The RTC held that respondent is entitled to the payment of the
amount of P200,000.00 with interest. It noted that respondent
personally issued Check No. 240810 to petitioner and her
husband upon their request to lend them the aforesaid amount.
The trial court concluded that the P200,000.00 was a loan
advanced by the respondent from his own funds and not
remunerations for services rendered to Hagonoy Lumber nor
petitioners advance share in the profits of their parents
businesses.

EVIDENCE

The trial court further held that the validity and due execution of
the Deed of Partition and the Deed of Sale, evidencing transfer
of ownership of Hagonoy Lumber from Chua Sioc Huan to
respondent, was never impugned. Although respondent failed to
produce the originals of the documents, petitioner judicially
admitted the due execution of the Deed of Partition, and even
acknowledged her signature thereon, thus constitutes an
exception to the best evidence rule. As for the Deed of Sale,
since the contents thereof have not been put in issue, the nonpresentation of the original document is not fatal so as to affect
its authenticity as well as the truth of its contents. Also, the
parties to the documents themselves do not contest their
validity. Ultimately, petitioner failed to establish her right to
demand an accounting of the operations of Hagonoy Lumber nor
the delivery of her 1/6 share therein.
As for petitioners claim that an accounting be done on Capitol
Sawmill Corporation and Columbia Wood Industries, the trial
court held that respondent is under no obligation to make such
an accounting since he is not charged with operating these
enterprises.23
Aggrieved, petitioner appealed to the CA, alleging that the trial
court erred (1) when it considered the amount of P200,000.00
as a loan obligation and not Concepcions share in the profits of
Hagonoy Lumber; (2) when it considered as evidence for the
defendant, plaintiffs testimony when he was called to testify as
an adverse party under Section 10 (e), Rule 132 of the Rules of
Court; and (3) when it considered admissible mere copies of the
Deed of Partition and Deed of Sale to prove that respondent is
now the owner of Hagonoy Lumber.24
On May 23, 2003, the CA affirmed the Decision of the RTC. 25
The appellate court found baseless the petitioners argument
that the RTC should not have included respondents testimony as
part of petitioners evidence. The CA noted that the petitioner
went on a fishing expedition, the taking of respondents
testimony having taken up a total of eleven hearings, and upon
failing to obtain favorable information from the respondent, she
now disclaims the same. Moreover, the CA held that the
petitioner failed to show that the inclusion of respondents
testimony in the statement of facts in the assailed decision
unduly prejudiced her defense and counterclaims. In fact, the CA
noted that the facts testified to by respondent were deducible
from the totality of the evidence presented.
The CA likewise found untenable petitioners claim that Exhibits
"H" (Deed of Sale) and Exhibit "I" (Deed of Partition) were
merely temporary paper arrangements. The CA agreed with the
RTC that the testimony of petitioner regarding the matter was
uncorroborated she should have presented the other heirs to
attest to the truth of her allegation. Instead, petitioner admitted
the due execution of the said documents. Since petitioner did
not dispute the due execution and existence of Exhibits "H" and
"I", there was no need to produce the originals of the
documents in accordance with the best evidence rule.26
On December 2, 2003, the CA denied the petitioners motion for
reconsideration for lack of merit.27
Petitioner is before this Court in this petition for review on
certiorari, raising the following errors:
I. THAT ON THE PRELIMINARY IMPORTANT RELATED
ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS
BEEN COMMITTED IN THE APPLICATION AND LEGAL
SIGNIFICANCE OF THE RULE ON EXAMINATION OF

AGUSTIN, E.P. | 222

ADVERSE PARTY OR HOSTILE WITNESS UNDER

SECTION 10 (d) AND (e) OF RULE 132, CAUSING
SERIOUS DOUBT ON THE LOWER COURTS
APPEALED DECISIONS OBJECTIVITY, ANNEX "C".
II. THAT ON THE IMPORTANT LEGAL ISSUE
RELATIVE TO THE AFORESAID TWO OPPOSING
CLAIMS OF RESPONDENT AND PETITIONER, CLEAR
AND PALPABLE LEGAL ERROR HAS BEEN
COMMITTED UNDER THE LOWER COURTS DECISION
ANNEX "C" AND THE QUESTIONED DECISION OF
MAY 23, 2003 (ANNEX "A") AND THE RESOLUTION
OF DECEMBER 2, 2003, (ANNEX "B") IN DEVIATING
FROM AND DISREGARDING ESTABLISHED SUPREME
COURT DECISIONS ENJOINING COURTS NOT TO
OVERLOOK OR MISINTERPRET IMPORTANT FACTS
AND CIRCUMSTANCES, SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE ON RECORD, AND WHICH
ARE OF GREAT WEIGHT AND VALUE, WHICH WOULD
CHANGE THE RESULT OF THE CASE AND ARRIVE AT
A JUST, FAIR AND OBJECTIVE DECISION. (Citations
omitted)
III. THAT FINALLY, AS TO THE OTHER LEGAL
IMPORTANT ISSUE RELATIVE TO CLAIM OR
OWNERSHIP OF THE "Hagonoy Lumber" FAMILY
BUSINESS, CLEAR AND PALPABLE LEGAL ERROR HAS
BEEN COMMITTED ON THE REQUIREMENTS AND
CORRECT APPLICATION OF THE "BEST EVIDENCE
RULE" UNDER SECTION 3, RULE 130 OF THE
REVISED RULES OF COURT.28
The petition is without merit.
Petitioner contends that her case was unduly prejudiced by the
RTCs treatment of the respondents testimony as adverse
witness during cross-examination by his own counsel as part of
her evidence. Petitioner argues that the adverse witness
testimony elicited during cross-examination should not be
considered as evidence of the calling party. She contends that
the examination of respondent as adverse witness did not make
him her witness and she is not bound by his testimony,
particularly during cross-examination by his own counsel.29 In
particular, the petitioner avers that the following testimony of
the respondent as adverse witness should not be considered as
her evidence:
(11.a) That RESPONDENT-Appellee became owner of
the "HAGONOY LUMBER" business when he bought
the same from Chua Sioc Huan through a Deed of
Sale dated August 1, 1990 (EXH.H);
(11.b) That the "HAGONOY LUMBER," on the other
hand, was acquired by the sister Chua Sioc Huan, by
virtue of Extrajudicial Partition and Renunciation of
Hereditary Rights in favor of a Co-Heir (EXH. I);
(11.c) That the 3 lots on which the "HAGONOY
LUMBER" business is located were acquired by Lu
Pieng from the Santos family under the Deed of
Absolute Sale (EXH. J); that Lu Pieng sold the Lots to
Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua
Siok Huan eventually became owner of the 3 Lots;
and in 1989 Chua Sioc Huan sold them to
RESPONDENT-Appellee (EXHS. Q and P); that after
he acquired the 3 Lots, he has not sold them to
anyone and he is the owner of the lots.30

EVIDENCE

We do not agree that petitioners case was prejudiced by the

RTCs treatment of the respondents testimony during crossexamination as her evidence.
If there was an error committed by the RTC in ascribing to the
petitioner the respondents testimony as adverse witness during
cross-examination by his own counsel, it constitute a harmless
error which would not, in any way, change the result of the
case.
In the first place, the delineation of a piece of evidence as part
of the evidence of one party or the other is only significant in
determining whether the party on whose shoulders lies the
burden of proof was able to meet the quantum of evidence
needed to discharge the burden. In civil cases, that burden
devolves upon the plaintiff who must establish her case by
preponderance of evidence. The rule is that the plaintiff must
rely on the strength of his own evidence and not upon the
weakness of the defendants evidence. Thus, it barely matters
who with a piece of evidence is credited. In the end, the court
will have to consider the entirety of the evidence presented by
both parties. Preponderance of evidence is then determined by
considering all the facts and circumstances of the case, culled
from the evidence, regardless of who actually presented it.31
That the witness is the adverse party does not necessarily mean
that the calling party will not be bound by the formers
testimony. The fact remains that it was at his instance that his
adversary was put on the witness stand. Unlike an ordinary
witness, the calling party may impeach an adverse witness in all
respects as if he had been called by the adverse party,32 except
by evidence of his bad character.33 Under a rule permitting the
impeachment of an adverse witness, although the calling party
does not vouch for the witness veracity, he is nonetheless
bound by his testimony if it is not contradicted or remains
unrebutted.34
A party who calls his adversary as a witness is, therefore, not
bound by the latters testimony only in the sense that he may
contradict him by introducing other evidence to prove a state of
facts contrary to what the witness testifies on.35 A rule that
provides that the party calling an adverse witness shall not be
bound by his testimony does not mean that such testimony may
not be given its proper weight, but merely that the calling party
shall not be precluded from rebutting his testimony or from
impeaching him.36 This, the petitioner failed to do.
In the present case, the petitioner, by her own testimony, failed
to discredit the respondents testimony on how Hagonoy Lumber
became his sole property. The petitioner admitted having signed
the Deed of Partition but she insisted that the transfer of the
property to Chua Siok Huan was only temporary. On crossexamination, she confessed that no other document was
executed to indicate that the transfer of the business to Chua
Siok Huan was a temporary arrangement. She declared that,
after their mother died in 1993, she did not initiate any action
concerning Hagonoy Lumber, and it was only in her counterclaim
in the instant that, for the first time, she raised a claim over the
business.
Due process requires that in reaching a decision, a tribunal must
consider the entire evidence presented.37 All the parties to the
case, therefore, are considered bound by the favorable or
unfavorable effects resulting from the evidence.38 As already
mentioned, in arriving at a decision, the entirety of the evidence
presented will be considered, regardless of the party who
offered them in evidence. In this light, the more vital
consideration is not whether a piece of evidence was properly

AGUSTIN, E.P. | 223

attributed to one party, but whether it was accorded the

apposite probative weight by the court. The testimony of an
adverse witness is evidence in the case and should be given its
proper weight, and such evidence becomes weightier if the other
party fails to impeach the witness or contradict his testimony.
Significantly, the RTCs finding that the P200,000.00 was given
to the petitioner and her husband as a loan is supported by the
evidence on record. Hence, we do not agree with the petitioners
contention that the RTC has overlooked certain facts of great
weight and value in arriving at its decision. The RTC merely took
into consideration evidence which it found to be more credible
than the self-serving and uncorroborated testimony of the
petitioner.
At this juncture, we reiterate the well-entrenched doctrine that
the findings of fact of the CA affirming those of the trial court
are accorded great respect, even finality, by this Court. Only
errors of law, not of fact, may be reviewed by this Court in
petitions for review on certiorari under Rule 45.39 A departure
from the general rule may be warranted where the findings of
fact of the CA are contrary to the findings and conclusions of the
trial court, or when the same is unsupported by the evidence on
record.40 There is no reason to apply the exception in the instant
case because the findings and conclusions of the CA are in full
accord with those of the trial court. These findings are
buttressed by the evidence on record. Moreover, the issues and
errors alleged in this petition are substantially the very same
questions of fact raised by petitioner in the appellate court.
On the issue of whether the P200,000.00 was really a loan, it is
well to remember that a check may be evidence of
indebtedness.41 A check, the entries of which are in writing,
could prove a loan transaction.42 It is pure naivet to insist that
an entrepreneur who has several sources of income and has
access to considerable bank credit, no longer has any reason to
borrow any amount.
The petitioners allegation that the P200,000.00 was advance on
her share in the profits of Hagonoy Lumber is implausible. It is
true that Hagonoy Lumber was originally owned by the parents
of petitioner and respondent. However, on December 8, 1986,
the heirs freely renounced and waived in favor of their sister
Chua Sioc Huan all their hereditary shares and interest therein,
as shown by the Deed of Partition which the petitioner herself
signed. By virtue of this deed, Chua Sioc Huan became the sole
owner and proprietor of Hagonoy Lumber. Thus, when the
respondent delivered the check for P200,000.00 to the petitioner
on June 7, 1988, Chua Sioc Huan was already the sole owner of
Hagonoy Lumber. At that time, both petitioner and respondent
no longer had any interest in the business enterprise; neither
had a right to demand a share in the profits of the business.
Respondent became the sole owner of Hagonoy Lumber only
after Chua Sioc Huan sold it to him on August 1, 1990. So, when
the respondent delivered to the petitioner the P200,000.00
check on June 7, 1988, it could not have been given as an
advance on petitioners share in the business, because at that
moment in time both of them had no participation, interest or
share in Hagonoy Lumber. Even assuming, arguendo, that the
check was an advance on the petitioners share in the profits of
the business, it was highly unlikely that the respondent would
deliver a check drawn against his personal, and not against the
business enterprises account.
It is also worthy to note that both the Deed of Partition and the
Deed of Sale were acknowledged before a Notary Public. The
notarization of a private document converts it into a public
document, and makes it admissible in court without further proof

EVIDENCE

of its authenticity.43 It is entitled to full faith and credit upon its

face.44 A notarized document carries evidentiary weight as to its
due execution, and documents acknowledged before a notary
public have in their favor the presumption of regularity. Such a
document must be given full force and effect absent a strong,
complete and conclusive proof of its falsity or nullity on account
of some flaws or defects recognized by law.45 A public document
executed and attested through the intervention of a notary
public is, generally, evidence of the facts therein express in clear
unequivocal manner.46
Petitioner, however, maintains that the RTC erred in admitting in
evidence a mere copy of the Deed of Partition and the Deed of
Sale in violation of the best evidence rule. In addition, petitioner
insists that the Deed of Sale was not the result of bona fide
negotiations between a true seller and buyer.
The "best evidence rule" as encapsulated in Rule 130, Section
3,47 of the Revised Rules of Civil Procedure applies only when
the content of such document is the subject of the inquiry.
Where the issue is only as to whether such document was
actually executed, or exists, or on the circumstances relevant to
or surrounding its execution, the best evidence rule does not
apply and testimonial evidence is admissible. Any other
substitutionary evidence is likewise admissible without need to
account for the original.48 Moreover, production of the original
may be dispensed with, in the trial courts discretion, whenever

the opponent does not bona fide dispute the contents of the
document and no other useful purpose will be served by
requiring production.49

Accordingly, we find that the best evidence rule is not applicable

to the instant case. Here, there was no dispute as to the terms
of either deed; hence, the RTC correctly admitted in evidence
mere copies of the two deeds. The petitioner never even denied
their due execution and admitted that she signed the Deed of
Partition.50 As for the Deed of Sale, petitioner had, in effect,
admitted its genuineness and due execution when she failed to
specifically deny it in the manner required by the rules.51 The
petitioner merely claimed that said documents do not express
the true agreement and intention of the parties since they were
only provisional paper arrangements made upon the advice of
counsel.52 Apparently, the petitioner does not contest the
contents of these deeds but alleges that there was a
contemporaneous agreement that the transfer of Hagonoy
Lumber to Chua Sioc Huan was only temporary.
An agreement or the contract between the parties is the formal
expression of the parties rights, duties and obligations. It is the
best evidence of the intention of the parties.53 The parties
intention is to be deciphered from the language used in the
contract, not from the unilateral post facto assertions of one of
the parties, or of third parties who are strangers to the
contract.54 Thus, when the terms of an agreement have been
reduced to writing, it is deemed to contain all the terms agreed
upon and there can be, between the parties and their successors
in interest, no evidence of such terms other than the contents of
the written agreement.55
WHEREFORE, premises considered, the petition is DENIED.
The Decision of the Court of Appeals in CA-G.R. CV No. 66790
dated May 23, 2003 and Resolution dated December 2, 2003 are
AFFIRMED.
SO ORDERED.

AGUSTIN, E.P. | 224

Republic of the Philippines

SUPREME COURT
Manila

1. Ordering the annulment of the sale in favor of the

defendants spouses Edgardo and Natividad Fidel of
the property in litigation;

SECOND DIVISION

2. Ordering the Regis[ter] of Deeds and/or the

Provincial Assessor of Cavite to cancel the registration
and/or Tax Declaration No. 16304, Series of 1995;

G.R. No. 168263

July 21, 2008

SPS. EDGARDO AND NATIVIDAD FIDEL, Petitioners,

vs.
HONORABLE COURT OF APPEALS, HEIRS OF THE LATE
PRIMITIVO ESPINELI, namely, JOSEFINA, PATRICIO and
LEONARDO, all surnamed ESPINELI, Respondents.
DECISION
QUISUMBING, J.:
This petition for review seeks to reverse the Decision1 dated
November 22, 2004 and the Resolution2 dated May 27, 2005 of
the Court of Appeals in CA-G.R. CV No. 71996. The appellate
court had affirmed with modification the Decision3 dated
February 20, 2001 of the Regional Trial Court (RTC), Branch 15,
Naic, Cavite in Civil Case No. NC-652-95, annulling the sale in
favor of the petitioners Edgardo and Natividad Fidel of a 150square meter parcel of unregistered land located at San Miguel
Street, Indang, Cavite and owned by the late Vicente Espineli.
The facts, culled from the records, are as follows:
4

On February 21, 1995, respondents filed a Complaint for

Annulment of Sale, Tax Declaration, Reconveyance with
Damages against the petitioners Edgardo and Natividad Fidel
and Guadalupe Espineli-Cruz before the RTC, Branch 15, Naic,
Cavite. In their complaint, respondents alleged that they are
compulsory heirs of Primitivo Espineli, the only child of Vicente
and his first wife, Juliana Asas. Respondents further alleged that
they discovered that the abovementioned parcel of land owned
by the late Vicente was sold on October 7, 1994 to the
petitioners despite the fact that Vicente died intestate on June 4,
1941. They argue that the sale is void and simulated because
Vicentes signature appearing on the deed of sale is a forgery.
In her Answer,5 Guadalupe, the only surviving child of Vicente
and his second wife, Pacencia Romea, denied any knowledge of
the deed of sale allegedly signed by Vicente. She, however,
admitted selling the property but by virtue of another deed of
sale signed by her as heir of Vicente and in representation of her
nephews and nieces who are children of her deceased siblings,
all children of Vicente and Pacencia. She further denied
knowledge of Vicentes alleged first marriage with Juliana Asas.
She argues that the heirs of Primitivo must first establish their
filiation from Vicente, prior to instituting the complaint for
annulment of sale. Guadalupe further stresses that the
petitioners Fidel have been able to register the sale of the
property and to obtain Tax Declaration No. 163046 in their
name.

3. Ordering the defendants spouses Edgardo and

Natividad Fidel to cause the reconveyance of the
property to Vicente Espineli and/or his heirs for
disposition subject to the laws of intestacy;
4. Ordering the defendants jointly and severally, to
pay the plaintiffs the amount of P50,000.00 as moral
damages and P30,000.00 as exemplary damages;
5. Ordering the defendants jointly and severally, to
reimburse the plaintiffs their expenses for litigation in
the amount of P50,000.00 as attorneys fees;
6. And to pay costs of suit.
SO ORDERED.7
On November 22, 2004, the Court of Appeals affirmed with
modification the RTC Decision as follows:
Accordingly, the subject property should be reconveyed to the
Estate of the late Vicente Espineli but the proper proceedings
should be instituted to determine the latters heirs, and if
appropriate, to partition the subject property.
WHEREFORE, premises considered, the assailed DECISION is
hereby AFFIRMED subject to the foregoing MODIFICATION. No
costs.
SO ORDERED.8
Thus, the instant petition by the spouses Edgardo and Natividad
Fidel, alleging that the appellate court:
I.
ERRED IN UPHOLDING THE DECISION OF THE
TRIAL COURT, CONSIDERING THAT PRIVATE
RESPONDENTS HAVE NO LEGAL PERSONALITY TO
INSTITUTE THE ACTION. PRIVATE RESPONDENTS
MUST FIRST ESTABLISH THE SAME IN PROPER
ACTION TO PROVE THEIR FILIATION. LACK OF SUCH
DETERMINATION ON THE ISSUE OF FILIATION ON
SEPARATE AND INDEPENDENT ACTION, PRIVATE
RESPONDENTS HAVE NO LEGAL PERSONALITY TO
INSTITUTE THE ACTION FOR ANNULMENT OF SALE,
CONVEYANCE AND DAMAGES.

On February 20, 2001, the RTC ruled in respondents favor. The

dispositive portion of the decision reads:

II.

WHEREFORE, judgment is hereby rendered in favor of the

plaintiffs and against the defendants as follows:

LIKEWISE COMMITTED ERROR IN RECOGNIZING

AND/OR ADMITTING THE BAPTISMAL CERTIFICATE
OF PRIMITIVO ESPINELI AS PROOF OF FILIATION
THAT [VICENTE ESPINELI IS HIS FATHER].

EVIDENCE

AGUSTIN, E.P. | 225

III.

(3) Those whose cause or object did not exist at the

time of the transaction;

ERRED IN AWARDING DAMAGES AND ATTORNEYS

FEES, CONSIDERING THAT PRIVATE RESPONDENTS
MUST FIRST INSTITUTE A SEPARATE ACTION TO
PROVE THEIR FILIATION.9

(4) Those whose object is outside the commerce of

men;
(5) Those which contemplate an impossible service;

Respondents for their part raise the following issues:

(6) Those where the intention of the parties relative

to the principal object of the contract cannot be
ascertained;

I.
WHETHER OR NOT PRIVATE RESPONDENTS ARE
SUFFICIENTLY CLOTHED WITH LEGAL PERSONALITY
TO FILE THE PRESENT ACTION FOR ANNULMENT OF
SALE, RECONVEYANCE WITH DAMAGES WITHOUT
PREJUDICE TO INSTITUTING A SEPARATE ACTION
TO ESTABLISH FILIATION AND HEIRSHIP IN A
SEPARATE [PROCEEDING].
II.
ASSUMING PETITIONERS HAVE PERSONALITY TO
RAISE THE ISSUE OF FILIATION, WHETHER OR NOT
THE BAPTISMAL CERTIFICATE OF PRIMITIVO
ESPINELI IS VALID AND COMPETENT EVIDENCE OF
HIS FILIATION AS CHILD OF VICENTE ESPINELI.
III.
WHETHER OR NOT THE SALE OF SUBJECT
PROPERTY BY GUADALUPE TO PETITIONERS FIDEL
IS VALID UNDER THE PRINCIPLE OF BUYER IN
GOOD FAITH.
IV.
WHETHER OR NOT THE AWARD OF DAMAGES AND
ATTORNEYS FEES TO PRIVATE RESPONDENTS HAS
NO BASIS SINCE A [SEPARATE] ACTION TO PROVE
THEIR FILIATION SHOULD FIRST BE FILED.10
Briefly stated, the issues for our resolution are: (1) Do
respondents have the legal personality to file the complaint for
annulment of title? (2) Is the baptismal certificate of Primitivo
valid and competent evidence to prove his filiation by Vicente?
(3) Are petitioners buyers in good faith? and (4) Is the award of
attorneys fees and damages to respondents proper?
At the outset, we entertain no doubt that the first deed of sale,
allegedly signed by Vicente, is void because his signature therein
is a patent forgery. Records show he died in 1941, but the deed
of sale was allegedly signed on October 7, 1994. Article 1409 of
the Civil Code of the Philippines states:
Art. 1409. The following contracts are inexistent and void from
the beginning:
(1) Those whose cause, object or purpose is contrary
to law, morals, good customs, public order, or public
policy;
(2) Those which are absolutely simulated or
fictitious;

EVIDENCE

(7) Those expressly prohibited or declared void by

law.
These contracts cannot be ratified. Neither can the right to set
up the defense of illegality be waived. (Emphasis supplied.)
As for the deed of sale signed by Guadalupe as heir of Vicente
and in representation of her nephews and nieces, petitioners
insist that the sale is valid because respondents have no legal
personality to file the complaint, the latter not having established
their filiation by Vicente. They argue that respondents first need
to establish their filiation by Vicente prior to instituting a
complaint in a separate action, and not in the present action. On
the other hand, respondents contend that their filiation was
established by the baptismal certificate of their father, Primitivo,
showing that Primitivo is the son of Vicente.
On this point we rule in favor of respondents.
While respondents principal action was for the annulment of the
sale and not an action to impugn ones legitimacy and that ones
legitimacy can be questioned only in a direct action seasonably
filed by the proper party, it is necessary to pass upon the
relationship of respondents to the deceased Vicente for the
purpose of determining what legal rights respondents have in
the property. In fact, the issue of whether or not respondents
are heirs of Vicente was squarely raised by petitioners in their
Pre-Trial Brief11 filed on April 26, 1995, before the trial court,
hence they are now estopped from assailing the trial courts
ruling on respondents status. In the similar case of Fernandez v.
Fernandez,12 the Supreme Court held:
It must be noted that the respondents principal action was for
the declaration of absolute nullity of two documents, namely:
deed of extra-judicial partition and deed of absolute sale, and
not an action to impugn ones legitimacy. The respondent court
ruled on the filiation of petitioner Rodolfo Fernandez in order to
determine Rodolfos right to the deed of extra-judicial partition
as the alleged legitimate heir of the spouses Fernandez. While
we are aware that ones legitimacy can be questioned
only in a direct action seasonably filed by the proper
party, this doctrine has no application in the instant case
considering that respondents claim was that petitioner
Rodolfo was not born to the deceased spouses Jose and
Generosa Fernandez; we do not have a situation wherein they
(respondents) deny that Rodolfo was a child of their uncles wife.
...
xxxx
Thus, it is necessary to pass upon the relationship of
petitioner Rodolfo Fernandez to the deceased spouses
Fernandez for the purpose of determining what legal

AGUSTIN, E.P. | 226

right Rodolfo has in the property subject of the extrajudicial partition. In fact, the issue of whether or not Rodolfo
Fernandez was the son of the deceased spouses Jose Fernandez
and Generosa de Venecia was squarely raised by petitioners in
their pre-trial brief filed before the trial court, hence they are
now estopped from assailing the trial courts ruling on Rodolfos
status.13 (Emphasis supplied.)
Petitioners nonetheless contend that Primitivos baptismal
certificate is neither a public document nor a conclusive proof of
the legitimate filiation by Vicente of Primitivo, the respondents
father. We find petitioners contention lacking in merit, hence we
reject it.

AFFIRMED with the MODIFICATION that the award of moral

and exemplary damages as well as attorneys fees be DELETED.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice

Records show that Primitivo was born in 1895. At that time, the
only records of birth are those which appear in parochial
records. This Court has held that as to the nature and character
of the entries contained in the parochial books and the
certificates thereof issued by a parish priest, the same have not
lost their character of being public documents for the purpose of
proving acts referred to therein, inasmuch as from the time of
the change of sovereignty in the Philippines to the present day,
no law has been enacted abolishing the official and public
character of parochial books and entries made therein. Parish
priests continue to be the legal custodians of the parochial books
kept during the former sovereignty, and as such they may issue
certified copies of the entries contained therein in the same
manner as do keepers of archives.14lavvphil
The baptismal certificate of Primitivo is, therefore, a valid and
competent evidence to prove his filiation by Vicente.
Accordingly, we uphold the Court of Appeals ruling that the
subject property should be reconveyed to the Estate of the late
Vicente Espineli and proper proceedings be instituted to
determine the latters heirs, and, if appropriate, to partition the
subject property.
Anent the third issue, can petitioners be considered buyers in
good faith? Our ruling on this point is: no, they cannot be
considered buyers in good faith. For we find that petitioners
were only able to register the sale of the property and Tax
Declaration No. 16304 in their name; they did not have a
Torrens title. Unlike a title registered under the Torrens System,
a tax declaration does not constitute constructive notice to the
whole world. The issue of good faith or bad faith of a buyer is
relevant only where the subject of the sale is a registered land
but not where the property is an unregistered land.15
However, on the issue of actual and moral damages and
attorneys fees awarded by the trial court to respondents, we
find the award bereft of factual basis. A party is entitled to an
adequate compensation for such pecuniary loss or losses actually
suffered by him which he has duly proven. Such damages, to be
recoverable, must not only be capable of proof, but must
actually be proved with a reasonable degree of certainty. Courts
cannot simply rely on speculation, conjecture or guesswork in
determining the fact and amount of damages. Attorneys fees
should therefore be deleted for lack of factual basis and legal
justification.16 Moral damages should likewise not be awarded
since respondents did not show proof of moral suffering, mental
anguish, serious anxiety, besmirched reputation, nor wounded
feelings and social humiliation.17
WHEREFORE, the petition is DENIED. The assailed Decision
dated November 22, 2004 and the Resolution dated May 27,
2005 of the Court of Appeals in CA-G.R. CV No. 71996 are

EVIDENCE

AGUSTIN, E.P. | 227

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 157766

July 12, 2007

ERNESTO L. SALAS, Petitioner,

vs.
STA. MESA MARKET CORPORATION and the HEIRS OF
PRIMITIVO E. DOMINGO,** Respondents.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the April
30, 2001 decision of the Court Appeals (CA) in CA-G.R. CV No.
508882 and its April 3, 2003 resolution denying reconsideration.
In a letter-agreement3 dated October 15, 1984, Primitivo E.
Domingo handed the management of his estate, including the
respondent corporation Sta. Mesa Market Corporation (SMMC),
to petitioner Ernesto L. Salas.4 As estate manager, petitioner was
primarily tasked to ensure SMMC's continued viability and
profitability by redeveloping the Sta. Mesa market and
restructuring the corporation's finances.5 Domingo, on the other
hand, bound himself to transfer (on or before June 30, 1985)6
30% of SMMC's subscribed and paid-up capital stock to
petitioner as part of his compensation. But, if petitioner failed to
achieve a monthly market revenue of at least P350,000, he
would be obliged to return the shares of stock of SMMC to
Domingo.7
On December 28, 1984, Domingo, as chairman of SMMC, and
petitioner, in his personal capacity and as chairman of Inter-Alia
Management
Corporation
(Inter-Alia),
formalized
their
agreement under a property and financial management contract
(management contract).8
Shortly after the execution of the contract, SMMC, under
petitioner's management, leased the Sta. Mesa market to Malaca
Realty Corporation (Malaca).9 But it became apparent soon
thereafter that Malaca was financially incapable of improving and
expanding the existing facilities of the Sta. Mesa market.10 In
fact, it was unable to pay the monthly rent.11 Thus, SMMC
terminated its lease contract with Malaca.12 As a result, its board
of directors became dissatisfied with petitioner's management of
the corporation. Thereafter, it ended its management contract
with petitioner (and Inter-Alia).13
On June 8, 1987, petitioner filed an action for specific
performance and damages14 against SMMC and Domingo15 in the
Regional Trial Court (RTC) of Quezon City.16 He alleged that
SMMC's monthly market revenue had surpassed P350,000 yet
Domingo refused to comply with his obligation to deliver 30% of
the subscribed and paid-up capital stock of SMMC to him.17
In his answer,18 Domingo argued that petitioner was not entitled
to the shares of SMMC. On the contrary, the corporation
suffered additional losses and incurred new liabilities (which
respondents consistently itemized in their pleadings) amounting
to P1,935,995.06 over the twenty-one (21) months petitioner
was managing it.19

EVIDENCE

On August 21, 1995, the RTC rendered a decision in favor of

petitioner.20 The trial court considered copies of SMMC's audited
financial statements which showed an improvement in the
corporation's monthly average gross income (from P251,790 in
1984 to P409,794 in 1985). It found that petitioner not only
increased SMMC's monthly gross income but also exceeded the
target monthly gross income of P350,000.21 Hence, it ordered
respondent heirs to deliver the shares of SMMC (equivalent to
30% of its total subscribed and paid-up capital stocks) to
petitioner.22
Respondent heirs appealed the judgment of the RTC to the CA.
On April 30, 2001, the appellate court rendered its decision. It
found that the trial court erred in admitting petitioner's
documentary evidence. According to the CA, petitioner failed to
prove the authenticity of the audited financial statements. He did
not present a representative of SMMC's external auditor, Bejarin
Jimenez & Co., to testify on the genuineness and due execution
of the audited financial statements of SMMC. Instead, petitioner
presented a memorandum prepared by a member of his
management team attesting to the increase in the corporation's
monthly market revenue. For this reason, the appellate court
ruled that the audited financial statements were not only selfserving but also hearsay.23 Thus, the CA reversed the RTC
decision and dismissed petitioner's complaint.
Petitioner moved for reconsideration but his motion was
denied.24 Thus, this petition.
Petitioner avers that Amado Domingo, a vice-president of SMMC
and an heir of the deceased Primitivo E. Domingo, testified that
the audited financial statements presented in court were copies
of those submitted by SMMC to the Bureau of Internal Revenue
(BIR) and the Securities and Exchange Commission (SEC) for
purposes of tax payments and compliance with reportorial
requirements, respectively.25 Therefore, Amado Domingo, in
effect, admitted the genuineness and due execution of the
documents which made authentication unnecessary.
Respondents, on the other hand, insist that the audited financial
statements were inadmissible in evidence due to lack of proper
authentication.26
We agree with the CA.
The documents in question were supposedly copies of the
audited financial statements of SMMC. Financial statements
(which include the balance sheet, income statement and
statement of cash flow) show the fiscal condition of a particular
entity within a specified period. The financial statements
prepared by external auditors who are certified public
accountants (like those presented by petitioner) are audited
financial statements. Financial statements, whether audited or
not, are, as general rule, private documents.27 However, once
financial statements are filed with a government office pursuant
to a provision of law,28 they become public documents.29
Whether a document is public or private is relevant in
determining its admissibility as evidence. Public documents are
admissible in evidence even without further proof of their due
execution and genuineness. 30 On the other hand, private
documents are inadmissible in evidence unless they are properly
authenticated.31 Section 20, Rule 132 of the Rules of Court
provides:

AGUSTIN, E.P. | 228

Section 20. Proof of private documents. Before any private

document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
a. By anyone who saw the document executed or
written; or
b. By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be.
Petitioner and respondents agree that the documents presented
as evidence were mere copies of the audited financial
statements submitted to the BIR and SEC. Neither party claimed
that copies presented were certified true copies32 of audited
financial statements obtained or secured from the BIR or the
SEC which under Section 19(c), Rule 132 would have been
public documents. Thus, the statements presented were private
documents. Consequently, authentication was a precondition to
their admissibility in evidence.
During authentication in court, a witness positively testifies that
a document presented as evidence is genuine and has been duly
executed33 or that the document is neither spurious nor
counterfeit nor executed by mistake or under duress.34 In this
case, petitioner merely presented a memorandum attesting to
the increase in the corporation's monthly market revenue,
prepared by a member of his management team. While there is
no fixed criterion as to what constitutes competent evidence to
establish the authenticity of a private document, the best proof
available must be presented.35 The best proof available, in this
instance, would have been the testimony of a representative of
SMMC's external auditor who prepared the audited financial
statements. Inasmuch as there was none, the audited financial
statements were never authenticated.
Nevertheless, petitioner insists on the application of an exception
to this rule: authentication is not necessary where the adverse
party has admitted the genuineness and due execution of a
document.36 The fact, however, was that nowhere in his
testimony did Amado Domingo categorically admit the
authenticity of the copies of the audited financial statements. He
only testified that SMMC regularly submitted its audited financial
statements to the BIR and SEC.37 There was never any
admission that the documents presented by petitioner were true
or faithful copies of those submitted to the BIR and the
SEC.381avvphi1
WHEREFORE, the petition is hereby DENIED. The April 30,
2001 decision and April 3, 2003 resolution of the Court of
Appeals in CA-G.R. CV No. 50888 are hereby AFFIRMED.
Costs against the petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 229

RULE 132: Presentation of Evidence

Sec. 19 - Sec. 40: Proof of Documents

Republic of the Philippines

SUPREME COURT
SECOND DIVISION
G.R. No. 154115 November 29, 2005
PHILIP S. YU, Petitioner,
vs.
HON. COURT OF APPEALS, Second Division, and VIVECA
LIM YU, Respondents.
DECISION
Tinga, J.:
This treats of the petition for review on certiorari of the Court of
Appeals Decision and Resolution in CA G.R. SP No. 66252 dated
30 April 20021 and 27 June 2002,2 respectively, which set aside
the Order of the Regional Trial Court (RTC) of Pasig City3 dated
10 May 2001, declaring an application for insurance and an
insurance policy as inadmissible evidence.
The facts of the case are undisputed.
On 15 March 1994, Viveca Lim Yu (private respondent) brought
against her husband, Philip Sy Yu (petitioner), an action for legal
separation and dissolution of conjugal partnership on the
grounds of marital infidelity and physical abuse. The case was
filed before the RTC of Pasig and raffled to Branch 158, presided
by Judge Jose R. Hernandez.
During trial, private respondent moved for the issuance of a
subpoena duces tecum and ad testificandum4 to certain officers
of Insular Life Assurance Co. Ltd. to compel production of the
insurance policy and application of a person suspected to be
petitioners illegitimate child.5 The trial court denied the motion.6
It ruled that the insurance contract is inadmissible evidence in
view of Circular Letter No. 11-2000, issued by the Insurance
Commission
which
presumably
prevents
insurance
companies/agents from divulging confidential and privileged
7
information pertaining to insurance policies. It added that the
production of the application and insurance contract would
violate Article 2808 of the Civil Code and Section 5 of the Civil
Registry Law,9 both of which prohibit the unauthorized
identification of the parents of an illegitimate child.10 Private
respondent sought reconsideration of the Order, but the motion
was denied by the trial court.11
Aggrieved, private respondent filed a petition for certiorari
before the Court of Appeals, imputing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of Judge
Hernandez in issuing the 10 May 2001 Order.12 The Court of
Appeals summarized the issues as follows: (i) whether or not an
insurance policy and its corresponding application form can be
admitted as evidence to prove a partys extra-marital affairs in
an action for legal separation; and (ii) whether or not a trial
court has the discretion to deny a partys motion to attach
excluded evidence to the record under Section 40, Rule 132 of
the Rules of Court.13

EVIDENCE

According to the Court of Appeals, private respondent was

merely seeking the production of the insurance application and
contract, and was not yet offering the same as part of her
evidence. Thus, it declared that petitioners objection to the
admission of the documents was premature, and the trial courts
pronouncement that the documents are inadmissible,
precipitate.14 The contents of the insurance application and
insurance documents cannot be considered as privileged
information, the Court of Appeals added, in view of the opinion
of the Insurance Commissioner dated 4 April 2001 to the effect
that Circular Letter No.11-2000 "was never intended to be a
legal impediment in complying with lawful orders".15 Lastly, the
Court of Appeals ruled that a trial court does not have the
discretion to deny a partys privilege to tender excluded
evidence, as this privilege allows said party to raise on appeal
the exclusion of such evidence.16 Petitioner filed a motion for
reconsideration but to no avail.
In the present petition, petitioner argues that the Court of
Appeals blundered in delving into errors of judgment supposedly
committed by the trial court as if the petition filed therein was an
ordinary appeal and not a special civil action. Further, he claims
that the Court of Appeals failed to show any specific instance of
grave abuse of discretion on the part of the trial court in issuing
the assailed Order. Additionally, he posits that private
respondent had already mooted her petition before the Court of
Appeals when she filed her formal offer of rebuttal exhibits, with
tender of excluded evidence before the trial court.17
For her part, private respondent maintains that the details
surrounding the insurance policy are crucial to the issue of
petitioners infidelity and his financial capacity to provide support
to her and their children. Further, she argues that she had no
choice but to make a tender of excluded evidence considering
that she was left to speculate on what the insurance application
and policy ruled out by the trial court would contain.18
A petition for certiorari under Rule 65 is the proper remedy to
correct errors of jurisdiction and grave abuse of discretion
tantamount to lack or excess of jurisdiction committed by a
lower court.19 Where a respondent does not have the legal
power to determine the case and yet he does so, he acts without
jurisdiction; where, "being clothed with power to determine the
case, oversteps his authority as determined by law, he is
performing a function in excess of jurisdiction."20
Petitioner claims that the Court of Appeals passed upon errors of
judgment, not errors of jurisdiction, since it delved into the
propriety of the denial of the subpoena duces tecum and
subpoena ad testificandum. The argument must fail.
While trial courts have the discretion to admit or exclude
evidence, such power is exercised only when the evidence has
been formally offered.21 For a long time, the Court has
recognized that during the early stages of the development of
proof, it is impossible for a trial court judge to know with
certainty whether evidence is relevant or not, and thus the
practice of excluding evidence on doubtful objections to its
materiality should be avoided.22 As well elucidated in the case of
Prats & Co. v. Phoenix Insurance Co.:23
Moreover, it must be remembered that in the heat of the battle
over which he presides a judge of first instance may possibly fall
into error in judging of the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is
made and the proof is erroneously ruled out, the Supreme Court,
upon appeal, often finds itself embarrassed and possibly unable
to correct the effects of the error without returning the case for

AGUSTIN, E.P. | 230

a new trial, a step which this court is always very loath to

take. On the other hand, the admission of proof in a court of
first instance, even if the question as to its form, materiality, or
relevancy is doubtful, can never result in much harm to either
litigant, because the trial judge is supposed to know the law;
and it is its duty, upon final consideration of the case, to
distinguish the relevant and material from the irrelevant and
immaterial. If this course is followed and the cause is prosecuted
to the Supreme Court upon appeal, this court then has all the
material before it necessary to make a correct judgment.
In the instant case, the insurance application and the insurance
policy were yet to be presented in court, much less formally
offered before it. In fact, private respondent was merely asking
for the issuance of subpoena duces tecum and subpoena ad
testificandum when the trial court issued the assailed Order.
Even assuming that the documents would eventually be declared
inadmissible, the trial court was not then in a position to make a
declaration to that effect at that point. Thus, it barred the
production of the subject documents prior to the assessment of
its probable worth. As observed by petitioners, the assailed
Order was not a mere ruling on the admissibility of evidence; it
was, more importantly, a ruling affecting the proper conduct of
trial.24

manifestation of an undisputed fact that the subject documents

were declared inadmissible by the trial court even before these
were presented during trial. It was not the kind of plain, speedy
and adequate remedy which private respondent could have
resorted to instead of the petition for certiorari she filed before
the Court of Appeals. It did not in any way render the said
petition moot.
WHEREFORE, premises considered, the petition is DENIED. The
Decision dated 30 April 2002 and Resolution dated 27 June 2002
are AFFIRMED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice

Excess of jurisdiction refers to any act which although falling

within the general powers of the judge is not authorized and is
consequently void with respect to the particular case because
the conditions under which he was only authorized to exercise
his general power in that case did not exist and therefore, the
judicial power was not legally exercised.25 Thus, in declaring that
the documents are irrelevant and inadmissible even before they
were formally offered, much less presented before it, the trial
court acted in excess of its discretion.
Anent the issue of whether the information contained in the
documents is privileged in nature, the same was clarified and
settled by the Insurance Commissioners opinion that the circular
on which the trial court based its ruling was not designed to
obstruct lawful court orders.26 Hence, there is no more
impediment to presenting the insurance application and policy.
Petitioner additionally claims that by virtue of private
respondents tender of excluded evidence, she has rendered
moot her petition before the Court of Appeals since the move
evinced that she had another speedy and adequate remedy
under the law. The Court holds otherwise.
Section 40, Rule 132 provides:
Sec.40. Tender of excluded evidence.If documents or things
offered in evidence are excluded by the court, the offeror may
have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record
the name and other personal circumstances of the witness and
the substance of the proposed testimony.
It is thus apparent that before tender of excluded evidence is
made, the evidence must have been formally offered before the
court. And before formal offer of evidence is made, the evidence
must have been identified and presented before the court. While
private respondent made a "Tender of Excluded Evidence," such
is not the tender contemplated by the above-quoted rule, for
obviously, the insurance policy and application were not formally
offered much less presented before the trial court. At most, said
"Tender of Excluded Evidence" was a

EVIDENCE

AGUSTIN, E.P. | 231

Republic of the Philippines

SUPREME COURT
Manila

SUBJECT was naturalized on October 11, 1991 in Los Angeles,

CA.
(Sgd.)
G.R. Clarke, INS/Manila

EN BANC
G.R. No. 151944

January 20, 2004

ENGR. ERNESTO T. MATUGAS, Petitioner,

vs.
COMMISSION ON ELECTIONS and ROBERT LYNDON S.
BARBERS, Respondents.
DECISION
TINGA, J.:
The Local Government Code of 19911 requires that an elective
local official be a citizen of the Philippines.2 Whether the
incumbent Governor of Surigao del Norte is a citizen of the
Philippines and, therefore, qualified to hold such office is the
issue in this case.

Petitioner also presented a Certification4 issued by the Bureau of

Immigration and Deportation (BID) dated 1 September 2000
containing Barbers travel records and indicating in certain
entries that private respondent is an American citizen. The
Certification states:
CERTIFICATION
THIS IS TO CERTIFY THAT the name BARBERS, ROBERT
LYNDON S, American, appears in our available Computer
Database/Passenger manifest/IBM listing on file as of September
1, 2000 10:27 am with the following travel records:

Date
Departure

of

01/28/1997

On February 28, 2001, private respondent Robert Lyndon S.

Barbers filed his certificate of candidacy for the position of
Governor of Surigao del Norte for the May 14, 2001 elections.
On April 10, 2001, petitioner Ernesto T. Matugas, himself a
candidate for the same post, filed with the Commission on
Elections (COMELEC) a Petition to Disqualify private respondent
as candidate. The Petition alleged, among other grounds, that
private respondent is not a Filipino citizen.

Destination

OSA-Osaka

Flight No.

NWo26-Northwest Airlines

Passport No.

034354245

In support of this claim, petitioner offered in evidence a copy of

a letter-request dated August 25, 2000 from a certain Jesus
Agana, a "confidential agent" of the Bureau of Immigration,
addressed to one George Clarke, purportedly of the United
States Embassy. Below the request was the reply of said George
Clarke stating that the "subject" was naturalized as an American
citizen on October 11, 1991 in Los Angeles, California. The
document3 reads:

Nationality

Filipino

Date of Birth

07/15/1968

Phil. Address

6 Hercules St. Bel Air II

Makati

Immig. Status

RP

Immig. Officer

not stated

Date of Arrival

02/12/1998

Origin

LON-London

Flight No.

PR731-Phil. Airlines

Passport No.

034354245

Nationality

American

Dear Mr. Clark [sic]:

Per our phone conversation, may I request for [sic] a
certification from your Embassy regarding the US citizenship of
MR. ROBERT LYNDON S. BARBERS who was born on July 15,
1968.
Kindly fax your reply, addressed to the undersigned at Tel. No.
(02) 3384456.
Thank you and regards.
Very truly yours,
(Sgd.)
JESUS
Confidential Agent
Jesus Agana:

EVIDENCE

AGANA

AGUSTIN, E.P. | 232

Date of Birth

American

Phil. Address

not available

Phil. Address

6 Hercules St. Bel Air II

Makati

Immig. Status

not available

Immig. Officer

RACHO

Immig. Status

BB365

Immig. Officer

REGALA

Date of Arrival

07/31/1998

Origin

BKK-Bangkok

Flight No.

TG620-Thai Airways

Passport No.

OF006673

Nationality

American

Date of Birth

07/15/1968

Phil. Address

16 Hercules St. Bel Air II

Makati

Immig. Status

BB365

Immig. Officer

SOR

FURTHER, THIS IS TO CERTIFY THAT the name BARBERS,

ROBERT LYNDON SMITH, American, appears in our Computer
Database/Passenger manifest/IBM listing on file with the
following travel records:

Date of Departure

07/27/1998

Destination

not available

Flight No.

TG621-Thai Airways

Passport No.

not available

Nationality

Filipino

Date of Birth

07/15/1968

EVIDENCE

This certification is issued upon request of Mr. Bebot Pomoy for

whatever legal purpose it may serve.

Verified by

Edilberto Orbase Computer Section

Date & Time

September 1, 2000 10:27 am

(Sgd.)
ATTY.
FELINO
C.
Acting Chief, Admin. Division

QUIRANTE,

JR.

In addition, petitioner submitted a Certification5 issued by the

Special Committee on Naturalization of the Office of the Solicitor
General stating that, based on their records, there is no pending
petition by private respondent for repatriation. Neither has one
been granted in his favor.
In the meantime, private respondent garnered the highest
number of votes in the gubernatorial race. On May 17, 2001,
petitioner filed a Motion for Suspension/Annulment of
Proclamation of private respondent. The Motion, however, was
overtaken by subsequent events when, on the following day,
May 18, 2001, private respondent was proclaimed the duly
elected governor of Surigao del Norte.
On July 5, 2001, the Second Division of the COMELEC issued a
Resolution dismissing for lack of merit the Petition to Disqualify.
The COMELEC found "little or no probative value" in the notation
of George Clarke to Aganas letter-request.6 While noting that
the BID certification involving the travel records of Robert
Lyndon S. Barbers stated that he was an American, the
COMELEC held that "there is no other independent evidence... to
justify petitioners claim that respondent has renounced his
allegiance to the Philippines at any time."7
Petitioner filed a Motion for Reconsideration with the COMELEC
En Banc, which on January 8, 2002 dismissed the Motion and
affirmed the Resolution of the Second Division.
Petitioner thus instituted these proceedings for certiorari,
claiming that the COMELEC committed grave abuse of discretion
in denying his Petition to Disqualify.8 He maintains that private
respondent was not a Filipino citizenship at the time of his
election.
Basic in the law of evidence is that one who alleges a fact has
the burden of proving it.9 In administrative cases, the quantum
of proof required is substantial evidence.10 Petitioner did not
overcome his burden. The documentary evidence he submitted
fails to establish that private respondent is not a Filipino citizen.

AGUSTIN, E.P. | 233

The document containing the notation of George Clarke does not

prove that private respondent is indeed a naturalized American
citizen. For the purpose of their presentation in evidence,
documents are either public or private. Public documents include
the written official acts or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country.11
The record of such public documents may be evidenced by an
official publication thereof or by a copy attested by the officer
having the legal custody of the record. If the record is not kept
in the Philippines, the attested copy should be accompanied by a
certificate that such officer has custody thereof.12
The grant of United States citizenship by naturalization is an
official act of the United States. The document containing the
record of this act is, therefore, a public document and, following
the rule cited above, this document can only be evidenced by its
official publication or a copy duly attested by the officer having
legal custody thereof.
The notation in the letter-inquiry of Jesus Agana is neither an
official publication of the document that contains the record of
private respondents naturalization, nor a copy attested by the
officer who has legal custody of the record. Petitioner did not
show if Clarke, the notations alleged author, is the officer
charged with the custody of such record.
Furthermore, Section 7, Rule 130 of the Rules of Court states
that when the original of a document is in the custody of a
public officer or is recorded in a public office, as in this case, the
contents of said document may be proved by a certified copy
issued by the public officer in custody thereof. The subject
letter-inquiry, which contains the notation, appears to be a mere
photocopy, not a certified copy.
The other document relied upon by petitioner is the Certification
dated 1 September 2000 issued by the BID. Petitioner submits
that private respondent has declared that he is an American
citizen as shown by said Certification and, under Section 26,
Rule 130 of the Rules of Court, such declaration may be given in
evidence against him.
The rule cited by petitioner does not apply in this case because
the rule pertains to the admissibility of evidence. There is no
issue here as to the admissibility of the BID Certification; the
COMELEC did not hold that the same was inadmissible. In any
case, the BID Certification suffers from the same defect as the
notation from the supposed US Embassy official. Said
Certification is also a photocopy, not a certified copy.
Moreover, the certification contains inconsistent entries
regarding the "nationality" of private respondent. While some
entries indicate that he is "American," other entries state that he
is "Filipino."
Petitioner also attached in his Memorandum before this Court
another document,13 obviously a photocopy, which reads in full:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
U.S. COURTHOUSE
312 NORTH SPRING STREET, SUITE 329

EVIDENCE

LOS ANGELES, CALIFORNIA, 90012

August 1, 2001
The official Naturalization the United States District Court of
California shows the following:

Name

Robert Lyndon Barbers

Date of Birth

July 15, 1968

Petition No.

890573

Alien No.

A40 460 660

Certificate No.

14738741

October 11, 1991

Date of

Naturalization

(Sgd.)
Deputy Clerk Abel Martinez
The above document was attached to an "Authentication,"14 also
a photocopy, stating:
CONSULATE
GENERAL
OF
CITY
OF
LOS
STATE OF CALIFORNIA, U.S.A.

THE
PHILIPPINES)
ANGELES
)S.S.

AUTHENTICATION
TO ALL WHOM THESE PRESENTS SHALL COME, GREETINGS:
I, CRISTINA G. ORTEGA, CONSUL at Los Angeles, California,
duly commissioned and qualified, do hereby certify that ABEL
MARTINEZ whose seal/signature appears on the annexed
certificate was, at the time he signed the annexed certificate, A
Deputy Clerk of the United States District Court, Central District
of California and verily believe that his seal/signature affixed
thereto is genuine.
For the contents of the annexed document, this Consulate
General assumes no responsibility.
IN WITNESS WHEREOF, I have hereunto set my hand and
caused the seal of the Consulate General of the Republic of the
Philippines at Los Angeles, California, U.S.A., to affixed this day
of 30 August 2001.
(Sgd.)
CRISTINA
Consul
of
the

G.
Republic

ORTEGA
of

the

Philippines

AGUSTIN, E.P. | 234

The
annexed
document
is
an
Information
of
Naturalization
Re:
Robert
Lyndon
Barbers
executed
by
United
States
District
Court, Central District of California
Subsequently, petitioner filed a Manifestation with Motion for
Leave to Admit Original Documents, appending thereto the
originals15 of the above documents.
These new documents likewise cannot be admitted in evidence.
To repeat, Section 24, Rule 132 of the Rules of Court requires
that if the public document or the public record is not kept in the
Philippines, its official publication or its copy duly attested by the
officer in charge of the custody of the same must be
accompanied by a certificate that such officer has the custody.
Said certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular agent
or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept and
authenticated by the seal of his office. In this case, the
Authentication executed by Cristina G. Ortega, the Philippine
Consul in Los Angeles, California merely states that Abel
Martinez is the Deputy Clerk of the United States District Court,
Central District of California. It does not state that said Deputy
Clerk has the custody of the above record.
There is another cogent reason that precludes the admission of
these documents. Petitioner calls upon this Court to consider
alleged new evidence not presented before the COMELEC, a
course of action clearly beyond the courts certiorari powers. In
Lovina and Montila v. Moreno and Yonzon,16 the Court of First
Instance (CFI) conducted a trial de novo even though the
Secretary of Public Works and Communications, in the exercise
of his administrative powers, had made his own independent
findings of fact. This Court reversed the decision of the CFI
because:

The same rules apply with greater force in certiorari

proceedings. Indeed, it would be absurd to hold public
respondent guilty of grave abuse of discretion for not
considering evidence not presented before it. The patent
unfairness of petitioners plea, prejudicing as it would public and
private respondents alike, militates against the admission and
consideration of the subject documents.
Finally, petitioner in his Memorandum25 invokes the case of Yu v.
Defensor-Santiago,26 holding that a naturalized Filipino citizen
effectively renounces his Filipino citizenship when he applies for
and is issued a Portuguese passport, and declares his nationality
as a Portuguese in commercial documents he signed. That case,
however, has no relevance here because the documents
submitted in this case, assuming that they constitute substantial
evidence that private respondent indeed renounced his Filipino
citizenship, are inadmissible. In other words, there is no
evidence in this case of any renunciation.
There is grave abuse of discretion amounting to lack of
jurisdiction when the respondent board, tribunal or officer
exercising judicial functions exercised its judgment in a
capricious, whimsical, arbitrary or despotic manner, as when the
assailed order has no basis both in fact and in law.27 In this
case, the Petition to Disqualify is not supported by substantial
evidence. Hence, the COMELEC did not commit grave abuse of
discretion in issuing the assailed Resolutions dismissing the
Petition.
WHEREFORE, the Petition is DISMISSED.
SO ORDERED.

The findings of the Secretary can not be enervated by new

evidence not laid before him, for that would be tantamount to
holding a new investigation, and to substitute for the discretion
and judgment of the Secretary the discretion and judgment of
the court, to whom the statute had not entrusted the case. It is
immaterial that the present action should be one for prohibition
or injunction and not one for certiorari; in either event the case
must be resolved upon the evidence submitted to the Secretary,
since a judicial review of executive decisions does not import a
trial de novo, but only an ascertainment of whether the
executive findings are not in violation of the Constitution or of
the laws, and are free from fraud or imposition, and whether
they find reasonable support in the evidence.
Similarly, petitioner in this case cannot "enervate"
COMELECs findings by introducing new evidence before
Court, which in any case is not a trier of facts, and then ask
substitute its own judgment and discretion for that of
COMELEC.1wphi1

the
this
it to
the

The rule in appellate procedure is that a factual question may

not be raised for the first time on appeal,17 and documents
forming no part of the proofs before the appellate court will not
be considered in disposing of the issues of an action.18 This is
true whether the decision elevated for review originated from a
regular court19 or an administrative agency or quasi-judicial
body,20 and whether it was rendered in a civil case,21 a special
proceeding,22 or a criminal case.23 Piecemeal presentation of
evidence is simply not in accord with orderly justice.24

EVIDENCE

AGUSTIN, E.P. | 235

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162886

August 11, 2008

HEIRS OF THE DECEASED SPOUSES VICENTE S. ARCILLA

and JOSEFA ASUNCION ARCILLA, namely: Aida Arcilla
Alandan, Rene A. Arcilla, Oscar A. Arcilla, Sarah A. Arcilla,
and Nora A. Arcilla, now deceased and substituted by her
son Sharmy Arcilla, represented by their attorney-infact, SARAH A. ARCILLA, petitioners,
vs.
MA. LOURDES A. TEODORO, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule
45 of the Rules of Court assailing the September 12, 2003
Decision1 of the Court of Appeals (CA) and its Resolution2 dated
March 24, 2004 in CA-G.R. SP No. 72032.
The facts of the case are as follows:
On December 19, 1995, Ma. Lourdes A. Teodoro (respondent)
initially filed with the Regional Trial Court (RTC) of Virac,
Catanduanes an application for land registration of two parcels
of land located at Barangay San Pedro, Virac, Catanduanes. The
lots, with an aggregate area of 284 square meters, are
denominated as Lot Nos. 525-A and 525-B, Csd.-05-010483-D of
the Virac Cadastre. Respondent alleged that, with the exception
of the commercial building constructed thereon, she purchased
the subject lots from her father, Pacifico Arcilla (Pacifico), as
shown by a Deed of Sale3 dated December 9, 1966, and that,
prior thereto, Pacifico acquired the said lots by virtue of the
partition of the estate of his father, Jose Arcilla evidenced by a
document entitled Extrajudicial Settlement of Estate.4
Respondent also presented as evidence an Affidavit of QuitClaim5 in favor of Pacifico, executed by herein petitioners as
Heirs of Vicente Arcilla (Vicente), brother of Pacifico.
On February 7, 1996, the case was transferred to the Municipal
Trial Court (MTC) of Virac, Catanduanes in view of the expanded
jurisdiction of said court as provided under Republic Act No.
7691.6
In their Opposition dated August 19, 1996, petitioners
contended that they are the owners pro-indiviso of the subject
lots including the building and other improvements constructed
thereon by virtue of inheritance from their deceased parents,
spouses Vicente and Josefa Arcilla; contrary to the claim of
respondent, the lots in question were owned by their father,
Vicente, having purchased the same from a certain Manuel
Sarmiento sometime in 1917; Vicente's ownership is evidenced
by several tax declarations attached to the record; petitioners
and their predecessors-in-interest had been in possession of the
subject lots since 1906. Petitioners moved to dismiss the
application of respondent and sought their declaration as the
true and absolute owners pro-indiviso of the subject lots and the
registration and issuance of the corresponding certificate of title
in their names.

EVIDENCE

Subsequently, trial of the case ensued.

On March 20, 1998, herein respondent filed a Motion for
Admission7 contending that through oversight and inadvertence
she failed to include in her application, the verification and
certificate against forum shopping required by Supreme Court
(SC) Revised Circular No. 28-91 in relation to SC Administrative
Circular No. 04-94.
Petitioners filed a Motion to Dismiss Application8 on the ground
that respondent should have filed the certificate against forum
shopping simultaneously with the petition for land registration
which is a mandatory requirement of SC Administrative Circular
No. 04-94 and that any violation of the said Circular shall be a
cause for the dismissal of the application upon motion and after
hearing.
Opposing the motion to dismiss, respondents asserted that the
petitioners' Motion to Dismiss Application was filed out of time;
respondent's failure to comply with SC Administrative Circular
No. 04-94 was not willful, deliberate or intentional; and the
Motion to Dismiss was deemed waived for failure of petitioners
to file the same during the earlier stages of the proceedings.
On July 19, 1999, the MTC issued an Order9 denying petitioners'
Motion to Dismiss Application.
On June 25, 2001, the MTC rendered a Decision10 the dispositive
portion of which reads as follows:
NOW THEREFORE, and considering all the above
premises, the Court finds and so holds that Applicant
MA. LOURDES A. TEODORO, having sufficient title
over this land applied for hereby renders judgment,
which should be, as it is hereby CONFIRMED and
REGISTERED in her name.
IT IS SO ORDERED.11
Herein petitioners then filed an appeal with the Regional Trial
Court of Virac, Catanduanes. In its Decision12 dated February 22,
2002, the RTC, Branch 43, of Virac, Catanduanes dismissed the
appeal for lack of merit and affirmed in toto the Decision of the
MTC. Petitioners filed a Motion for Reconsideration but it was
denied by the RTC in its Order13 of July 22, 2002.
Aggrieved by the RTC Decision, petitioners filed a Petition
Review14 with the CA. On September 12, 2003, the
promulgated its presently assailed Decision dismissing
Petition. Petitioners filed a Motion for Reconsideration but
same was denied by the CA in its Resolution15 dated March
2004.

for
CA
the
the
24,

Hence, the herein petition based on the following grounds:

A. The Honorable Court of Appeals did not rule in
accordance
with
the
prevailing
rules
and
jurisprudence when it held that the belated filing,
after more than two (2) years and three (3) months
from the initial application for land registration, of a
sworn certification against forum shopping in
Respondent's application for land registration,
constituted substantial compliance with SC Admin.
Circular No. 04-94.

AGUSTIN, E.P. | 236

B. The Honorable Court of Appeals did not rule in

accordance with prevailing laws and jurisprudence
when it held that the certification of non-forum
shopping subsequently submitted by respondent does
not require a certification from an officer of the
foreign service of the Philippines as provided under
Section 24, Rule 132 of the Rules of Court.
C. The Honorable Court of Appeals did not rule in
accordance with prevailing laws and jurisprudence
when it upheld the decisions of the Regional Trial
Court (RTC) and Municipal Trial Court (MTC) that the
lots in question were not really owned by Petitioners'
father Vicente S. Arcilla, contrary to the evidence
presented by both parties.
D. The Honorable Court of Appeals did not rule in
accordance with prevailing laws and jurisprudence
when it sustained the decision of the RTC which
affirmed in toto the decision of the MTC and in not
reversing the same and rendering judgment in favor
of Petitioners.16
In their Memorandum, petitioners further raise the following
issue:
Whether or not the Supreme Court may inquire into conclusions
of facts made by the Honorable Court of Appeals in the instant
Petition.17
The Courts Ruling
The petition is bereft of merit.
The CA ruled correctly when it held that the belated
filing of a sworn certification of non-forum shopping was
substantial compliance with SC Administrative Circular
No. 04-94.
Under the attendant circumstances in the present case, the
Court cannot uphold petitioners contention that respondent's
delay of more than two years and three months in filing the
required certificate of non-forum shopping may not be
considered substantial compliance with the requirements of SC
Administrative Circular No. 04-94 and Section 5, Rule 7 of the
Rules of Court; that respondent's reasons of oversight and
inadvertence do not constitute a justifiable circumstance that
could excuse her non-compliance with the mandatory
requirements of the above-mentioned Circular and Rule; that
subsequent compliance with the requirement does not serve as
an excuse for a party's failure to comply in the first instance.
Section 5, Rule 7, of the Rules of Court provides:
Sec. 5. Certification against forum shopping. The
plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that
he has not theretofore commenced any action or filed
any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is
pending therein; (b) if there is such other pending
action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn

EVIDENCE

that the same or similar action or claim has been filed

or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after
hearing. The submission of a false certification or
non-compliance with any of the undertakings therein
shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct
contempt as well as a cause for administrative
sanctions.
This Rule was preceded by Circular No. 28-91, which originally
required the certification of non-forum shopping for petitions
filed with this Court and the CA; and SC Administrative Circular
No. 04-94, which extended the certification requirement for civil
complaints and other initiatory pleadings filed in all courts and
other agencies.
In Gabionza v. Court of Appeals,18 this Court has held that
Circular No. 28-91 was designed to serve as an instrument to
promote and facilitate the orderly administration of justice and
should not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective or the goal of
all rules of procedure which is to achieve substantial justice as
expeditiously as possible.19 The same guideline still applies in
interpreting what is now Section 5, Rule 7 of the 1997 Rules of
Civil Procedure.20
The Court is fully aware that procedural rules are not to be
belittled or simply disregarded, for these prescribed procedures
insure an orderly and speedy administration of justice.21
However, it is equally settled that litigation is not merely a game
of technicalities.22 Rules of procedure should be viewed as mere
tools designed to facilitate the attainment of justice.23 Their strict
and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must
always be eschewed.24 Even the Rules of Court reflect this
principle.25
Moreover, the emerging trend in our jurisprudence is to afford
every party-litigant the amplest opportunity for the proper and
just determination of his cause free from the constraints of
technicalities.26
It must be kept in mind that while the requirement of the
certificate of non-forum shopping is mandatory, nonetheless the
requirement must not be interpreted too literally and thus defeat
the objective of preventing the undesirable practice of forum
shopping.27 In Uy v. Land Bank of the Philippines,28 the Court
ruled, thus:
The admission of the petition after the belated filing
of the certification, therefore, is not unprecedented.
In those cases where the Court excused noncompliance with the requirements, there were special
circumstances or compelling reasons making the strict
application of the rule clearly unjustified. In the case

AGUSTIN, E.P. | 237

at bar, the apparent merits of the substantive aspects

of the case should be deemed as a "special
circumstance" or "compelling reason" for the
reinstatement of the petition. x x x29
Citing De Guia v. De Guia30 the Court, in Estribillo v. Department
of Agrarian Reform,31 held that even if there was complete noncompliance with the rule on certification against forum-shopping,
the Court may still proceed to decide the case on the merits
pursuant to its inherent power to suspend its own rules on
grounds of substantial justice and apparent merit of the case.
In the instant case, the Court finds that the lower courts did not
commit any error in proceeding to decide the case on the merits,
as herein respondent was able to submit a certification of nonforum shopping. More importantly, the apparent merit of the
substantive aspect of the petition for land registration filed by
respondent with the MTC coupled with the showing that she had
no intention to violate the Rules with impunity, as she was the
one who invited the attention of the court to the inadvertence
committed by her counsel, should be deemed as special
circumstances or compelling reasons to decide the case on the
merits.
In addition, considering that a dismissal contemplated under
Rule 7, Section 5 of the Rules of Court is, as a rule, a dismissal
without prejudice, and since there is no showing that respondent
is guilty of forum shopping, to dismiss respondent's petition for
registration would entail a tedious process of re-filing the
petition, requiring the parties to re-submit the pleadings which
they have already filed with the trial court, and conducting anew
hearings which have already been done, not to mention the
expenses that will be incurred by the parties in re-filing of
pleadings and in the re-conduct of hearings. These would not be
in keeping with the judicial policy of just, speedy and
inexpensive disposition of every action and proceeding.32
The certification of non-forum shopping executed in a
foreign country is not covered by Section 24, Rule 132 of
the Rules of Court.
There is no merit to petitioners contentions that the verification
and certification subsequently submitted by respondent did not
state the country or city where the notary public exercised her
notarial functions; and that the MTC simply concluded, without
any basis, that said notary public was from Maryland, USA; that
even granting that the verification and certification of non-forum
shopping were notarized in the USA, the same may not be
deemed admissible for any purpose in the Philippines for failure
to comply with the requirement of Section 24, Rule 132 of the
Rules of Court that the notarized document must be
accompanied by a certificate issued by an officer in the foreign
service of the Philippines who is stationed in the country in
which a record of the subject document is kept, proving or
authenticating that the person who notarized the document is
indeed authorized to do so and has custody of the same.
The Court agrees with the disquisition of the CA, to wit:
From the foregoing provision [referring to Section 24,
Rule 132, Rules of Court], it can be gathered that it
does not include documents acknowledged before [a]
notary public abroad. For foreign public documents to
be admissible for any purpose here in our courts, the
same must be certified by any officer of the Philippine
legation stationed in the country where the
documents could be found or had been executed.

EVIDENCE

However, after judicious studies of the rule, Sec. 24,

Rule 132 of the 1997 Rules of Court basically pertains
to written official acts, or records of the official of the
sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a
foreign country. This is so, as Sec. 24, Rule 132
explicitly refers only to paragraph (a) of Sec. 19. If
the rule comprehends to cover notarial documents,
the rule could have included the same. Thus,
petitioners-oppositors' contention that the certificate
of forum shopping that was submitted was defective,
as it did not bear the certification provided under Sec.
24, Rule 132 of the Rules of Court, is devoid of any
merit. What is important is the fact that the
respondent-applicant certified before a commissioned
officer clothed with powers to administer oath that
[s]he has not and will not commit forum shopping.33
The ruling of the Court in Lopez v. Court of Appeals,34 cited by
petitioners, is inapplicable to the present case because the Rules
of Evidence which were in effect at that time were the old Rules
prior to their amendment in 1989. The rule applied in Lopez,
which was decided prior to the effectivity of the amended Rules
of Evidence,35 was Section 25, Rule 132, to wit:
Sec. 25. Proof of public or official record An official
record or an entry therein, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer
has the custody. If the office in which the record
is kept is in a foreign country, the certificate
may be made by a secretary of embassy or
legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign
service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.
(Emphasis supplied)
When the Rules of Evidence were amended in 1989, Section 25,
Rule 132 became Section 24, Rule 132; and the amendment
consisted in the deletion of the introductory phrase "An official
record or an entry therein," which was substituted by the phrase
"The record of public documents referred to in paragraph (a) of
Section 19."
Thus, Section 24, Rule 132 of the Rules of Court now reads as
follows:
Sec. 24. Proof of official record. - The record of
public documents referred to in paragraph (a)
of Section 19, when admissible for any purpose,
may be evidenced by an official publication thereof or
by a copy attested by the officer having legal custody
of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a
certificate that such officer has the custody. If the
office in which the record is kept is in a foreign
country, the certificate may be made by a secretary
of the embassy or legation, consul general, consul,
vice consul or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office. (Emphasis
supplied)

AGUSTIN, E.P. | 238

Section 19(a) of the same Rule provides:

Sec. 19. Classes of documents. - For the purpose of
their presentation in evidence, documents are either
public or private.
Public documents are:
(a) The written official acts or records of the
official acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether of the Philippines or of a foreign
country;
(b) Documents acknowledged before a notary public
except last wills and testaments; and
(c) Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private.
It cannot be overemphasized that the required certification of an
officer in the foreign service under Section 24 refers only to the
documents enumerated in Section 19(a), to wit: written official
acts or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers of the Philippines
or of a foreign country. The Court agrees with the CA that had
the Court intended to include notarial documents as one of the
public documents contemplated by the provisions of Section 24,
it should not have specified only the documents referred to
under paragraph (a) of Section 19.
In Lopez, the requirements of then Section 25, Rule 132 were
made applicable to all public or official records without any
distinction because the old rule did not distinguish. However, in
the present rule, it is clear under Section 24, Rule 132 that its
provisions shall be made applicable only to the documents
referred to under paragraph (a), Section 19, Rule 132.
The CA did not err in sustaining the findings of fact and
conclusion of law of the MTC and the RTC.
Settled is the rule that the trial courts findings of fact, especially
when affirmed by the CA, are generally binding and conclusive
upon this Court.36 There are recognized exceptions to this rule,
among which are: (1) the conclusion is grounded on
speculations, surmises or conjectures; (2) the inference is
manifestly mistaken, absurd or impossible; (3) there is grave
abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting;
(6) there is no citation of specific evidence on which the factual
findings are based; (7) the finding of absence of facts is
contradicted by the presence of evidence on record; (8) the
findings of the CA are contrary to the findings of the trial court;
(9) the CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a
different conclusion; (10) the findings of the CA are beyond the
issues of the case; and (11) such findings are contrary to the
admissions of both parties.37 However, petitioners failed to show
that any of the exceptions is present in the instant case to
warrant a review of the findings of fact of the lower courts.

lot are rife with defects and inconsistencies. Petitioners contend

that the subject lot should not have been included in the
Extrajudicial Settlement of the Estate of Jose Arcilla, because he
was no longer the owner of the said property at the time of said
settlement; the Deed of Sale should be declared null and void
because the seller, Pacifico Arcilla, was not the owner of the
subject lands at the time the said Deed was executed; the
Affidavit of Quitclaim is not valid and has no force and effect
considering that the document indicates that the signatures of
petitioners were affixed in different places, none of which is in
Virac, Catanduanes where they supposedly acknowledged said
document.
The only evidence of petitioners to prove their claim that the
disputed property was sold by Jose Arcilla to Manuel Sarmiento
in 1908 is a single Tax Declaration in the name of the latter, with
a notation that the property was acquired by purchase.
The Court agrees with the CA in its finding that petitioners failed
to present any substantial evidence, such as a deed of sale, to
prove their claim that their predecessor, Vicente Arcilla, bought
the disputed property from Sarmiento. Petitioners were only able
to present tax declarations in Vicente's name to prove their
allegation that Vicente became the owner of the subject
property. The tax declarations presented in evidence by
petitioners are not supported by any other substantial proofs.
The Court has ruled time and again that tax declarations do not
prove ownership but are at best an indicium of claims of
ownership.38 Payment of taxes is not proof of ownership, any
more than indicating possession in the concept of an owner.39
Neither a tax receipt nor a declaration of ownership for taxation
purposes is evidence of ownership or of the right to possess
realty when not supported by other effective proofs.40
In addition, the Court agrees with the CA when it held that if
Vicente, in fact, owned the disputed properties, his widow,
Josefa, would not have agreed to include said lots among those
partitioned in the Extrajudicial Settlement of the Estate of Jose.
On the other hand, respondent's claim of ownership is not only
backed up by tax declarations but also by other pieces of
evidence such as the subject Extrajudicial Settlement, Affidavit
of Quitclaim, and Deed of Sale.
Petitioners question the validity of the above-mentioned
documents. However, as the CA, RTC and MTC found, these
documents are all notarized. It is settled that a notarized
document is executed to lend truth to the statements contained
therein and to the authenticity of the signatures.41 Notarized
documents enjoy the presumption of regularity which can be
overturned only by clear and convincing evidence.42
Petitioners' bare denials of the contents of the subject
documents will not suffice to overcome the presumption of their
regularity considering that they are all notarized. To overthrow
such presumption of regularity, the countervailing evidence must
be clear, convincing and more than merely preponderant, which
petitioners failed to present.43
An examination of the subject Extrajudicial Settlement of Estate
clearly shows that the disputed lot forms part of the properties
adjudicated in favor of Pacifico Arcilla, respondents predecessorin-interest.

Petitioners insist that the documents which were presented in

evidence by respondent to prove her ownership of the subject

EVIDENCE

AGUSTIN, E.P. | 239

Moreover, petitioners themselves admit that the Extrajudicial

Settlement being referred to in the Affidavit of Quitclaim
executed by petitioner and her co-heirs is the Extrajudicial
Settlement of the Estate of Jose Arcilla and not of Vicente Arcilla.
An examination of the Affidavit of Quitclaim shows that the
reference made therein with respect to the date of execution of
the said Extrajudicial Settlement as well as the notary public who
acknowledged the same and the Document Number, Page
Number, Book Number and Series Number all coincide with
those appearing in the document evidencing the Extrajudicial
Settlement of the Estate of Jose Arcilla. Hence, what has been
waived by petitioners is their right, if any, to the properties
mentioned in the said Affidavit of Quitclaim, which includes the
presently disputed lot.
Petitioners posit that they are not bound by the subject
Extrajudicial Settlement because they did not participate in nor
did they sign the document evidencing such settlement and that
their mother who signed on their behalf was not, in fact,
authorized to do so. However, the Court agrees with the ruling
of the RTC that the Extrajudicial Settlement is a public
document, the same having been notarized; that such document
is entitled to full faith and credit in the absence of competent
evidence showing that its execution was tainted with defects and
irregularities which would warrant a declaration of nullity; that in
the absence of evidence showing that the person who signed in
behalf of herein petitioners was, in fact, not authorized to do so,
the presumption that she had the authority, as stated in the
Extrajudicial Settlement, remains undisturbed.
Moreover, petitioners' execution of the subject Affidavit of
Quitclaim is proof that they have ratified the contents of the
disputed Extrajudicial Settlement.
Petitioners' claim that the Affidavit of Quitclaim is null and void
on the ground that the signatories thereto are not residents of
Virac, Catanduanes and that they affixed their signature in
places other than Virac, Catanduanes where they supposedly
acknowledged the said document, is not persuasive. The Court
finds no error in the finding of the MTC, as affirmed by the CA,
that the execution of the subject Affidavit of Quitclaim or the
signatures of the affiants appearing therein were never
contested nor raised as an issue and that petitioner Sarah Arcilla
herself acknowledged her own signature in the said Affidavit.
In any event, the law does not require that parties to a
document notarized by a notary public should be residents of the
place where the said document is acknowledged or that they
affix their signature in the presence of the notary public. What is
necessary is that the persons who signed a notarized document
are the very same persons who executed and personally
appeared before the notary public in order to attest to the
contents and truth of what are stated therein.44
In the instant case, it is established that, with the exception of
petitioner Rene Arcilla, all of herein petitioners, including their
now deceased mother Josefa and sister Nora, executed and
personally acknowledged before the notary public the subject
Affidavit of Quitclaim. Hence, aside from Rene, the said Affidavit
of Quitclaim is valid and binding on all the petitioners.
With respect to Rene, petitioner Oscar Arcilla, acting as his
attorney-in-fact, signed the document on the formers behalf.
However, settled is the rule that:

persons who signed the same are the very same

persons who executed and personally appeared
before him. The acts of the affiants cannot be
delegated to anyone for what are stated therein are
facts of which they have personal knowledge. They
should swear to the document personally and not
through any representative. Otherwise, their
representatives name should appear in the said
documents as the one who executed the same. That
is the only time the representative can affix his
signature and personally appear before the notary
public for notarization of the said document. Simply
put, the party or parties who executed the instrument
must be the ones to personally appear before the
notary public to acknowledge the document.45
Thus, the herein subject Affidavit of Quitclaim may not be
binding on Rene. Nonetheless, with or without Renes
participation in the quitclaim, respondents ownership of the
subject lots has been established by preponderance of evidence,
as unanimously found by the MTC, the RTC and the CA.
Finally, petitioners' physical occupation of the commercial
building which they erected on the disputed property does not
necessarily prove their ownership of the subject lots.
This Court has held that:
ownership and possession are two entirely different
legal concepts. Just as possession is not a definite
proof of ownership, neither is non-possession
inconsistent with ownership. The first paragraph of
Article 1498 of the Civil Code states that when the
sale is made through a public instrument, the
execution thereof shall be equivalent to the delivery
of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot
clearly be inferred. Possession, along with
ownership, is transferred to the vendee by
virtue of the notarized deed of conveyance.
Thus, in light of the circumstances of the
present case, it is of no legal consequence that
petitioner did not take actual possession or
occupation of the disputed lot after the
execution of the deed of sale in her favor
because she was already able to perfect and
complete her ownership of and title over the
subject property.46 (Emphasis supplied)
The Extrajudicial Settlement of Estate in favor of Pacifico,
respondents predecessor-in-interest, the Affidavit of Quitclaim
and the Deed of Sale in favor of respondent establish
respondents ownership over the disputed property.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated September 12, 2003 and its Resolution of
March 24, 2004 in CA-G.R. SP No. 72032 are AFFIRMED.
Costs against petitioners.
SO ORDERED.

A member of the bar who performs an act as a notary

public should not notarize a document unless the

EVIDENCE

AGUSTIN, E.P. | 240

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177505

November 27, 2008

HEIRS OF GORGONIO MEDINA, namely: LEONOR T.

MEDINA, RAMON T. MEDINA, ABIEL T. MEDINA,
ILUDIVINA M. ROSARI, CONCEPCION DE LA CRUZ,
LEONOR M. BAKKER, SAMUEL T. MEDINA, VICTOR T.
MEDINA, TERESITA M. SABADO, JOSEFINA M. CANAS
and VERONICA M. DE GUZMAN, petitioners,
vs.
BONIFACIO NATIVIDAD, represented by PHILIP M.
NATIVIDAD, respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of
the 1997 Rules of Civil Procedure which seeks to set aside the
Decision1 of the Court of Appeals dated 20 November 2006 in
CA-G.R. CV No. 82160 affirming with modification the Decision2
of Branch 33 of the Regional Trial Court (RTC) of Guimba, Nueva
Ecija, in Civil Case No. 1165-G and its Resolution3 dated 16 April
2007 denying petitioners motion for reconsideration.

COMPROMISE AGREEMENT
COME NOW the parties, assisted by their respective
counsel(s), and unto this Honorable Court respectfully
submit this Compromise Agreement in full and final
settlement of their differences, to wit:
1. The parties herein are the exclusive co-owners of
that certain parcel of land located at the Poblacion,
Guimba, Nueva Ecija, known as Lot 1199, Guimba
Cadastre and more particularly described as follows:
A parcel of land (Lot 1199, of the Cadastral Survey of
Guimba Cad. 162, plan Ap-23418, L.R. Case No. G-51,
L.R.C. Record No. N-40711), situated in the
Poblacion, Municipality of Guimba, Province of Nueva
Ecija. x x x containing an area of TWO THOUSAND
THREE HUNDRED AND THIRTY NINE (2,339) SQUARE
METERS, more or less. x x x.
xxxx
2. The herein parties recognize and acknowledge that
their
respective
shares
in
the
property
aforementioned as appearing in the aforesaid Original
Certificate of Title No. 130366 have been modified by
agreement between them to allot a portion thereof to
their co-owner, Vivencio M. Ruiz, to compensate for
valuable services rendered to the parties vis--vis the
said property, separate and apart from his rightful
share therein as participating heir of Maria Medina;

The factual antecedents are as follows:

On 16 May 1969, Tirso Medina, Pacifico M. Ruiz, Gorgonio D.
Medina, Vivencio M. Ruiz, and Dominica Medina, co-owners of a
parcel of land (Lot 1199, Cad-162, Guimba Cadastre, plan Ap23418) situated in Poblacion, Municipality of Guimba, Province of
Nueva Ecija, containing an area of two thousand three hundred
thirty nine (2,339) square meters, agreed to divide and allot for
themselves the said land. A sketch4 signed by the co-owners
showed the respective portions of land allotted to each.
Gorgonio D. Medina received two portions of said land. One
portion was allotted to him alone, while the second portion was
allotted to him together with Tirso Medina and Pacifico M. Ruiz.
This second portion is labeled as "Gorgonio Medina, Tirso
Medina and Pacifico M. Ruiz" which is adjacent to the portion
labeled as "Dominica Medina."
On 29 March 1972, Gorgonio D. Medina, predecessor-in-interest
of petitioners, executed a Deed of Absolute Sale5 whereby he
sold to respondent Bonifacio Natividad for P2,000.00 his share
(1/3) in the second portion of land including the improvements
found therein.
Subsequently, a case for Partition with Damages, docketed as
Civil Case No. 781-G, was filed before the RTC of Guimba, Nueva
Ecija, Branch 33, by Tirso Medina against the co-owners of Lot
1199, among whom are Gorgonio Medina and Bonifacio
Natividad. Bonifacio Natividad had likewise already bought the
share of Dominica Medina in the land.
The parties entered into a compromise agreement which they
submitted to the Court. On 20 November 1989, the RTC
approved the agreement and rendered its decision based on the
same.6 The Compromise Agreement as quoted by the Court
reads:

EVIDENCE

3. The plaintiff Tirso Medina hereby withdraws any/all

statements appearing on record which he may have
made in said case in the course of his testimony
therein, and hereby asks the Honorable Court that
said statements be expunged or withdrawn from the
record;
4. The foregoing considered, the parties have
determined that it is to their mutual convenience and
advantage, and in accord with their common desire to
preserve and maintain the existing family harmony
and solidarity to terminate their present community of
ownership in the property aforementioned by mutual
agreement and adjudication, in the manner appearing
in the Sketch Plan of Partition attached as an integral
part hereof as Annex "A" where the property is
subdivided into Lot 1, 2, 3, 4, 5, and 6 and
adjudicated, as follows:
a. To Bonifacio Natividad, Lot No. 1,
consisting of 480 square meters, more or
less, representing the interests of Dominica
Medina which was sold to him per
document of "Sale of Rights, Waiver and
Renunciation" appearing as Doc. No. 367;
Page No. 75; Book No. 10; Series of 1968
in the Notarial Register of Atty.
b. To VIVENCIO M. RUIZ, Lot No. 3
consisting of 370.21 square meters, more
or less, as compensation for valuable
services rendered; free and clear from
any/all liens or encumbrances whatsoever
or from the claims of any person

AGUSTIN, E.P. | 241

whomsoever, except the present tenant/s

thereon;
c. To the heirs of MARIA MEDINA, Lot No.
2 consisting of 370.21 square meters,
more or less, without prejudice to sales
and dispositions already made by the
respective heirs of their interests and
participations therein;
d. To TIRSO MEDINA, Lot No. 4 consisting
of 369.29 square meters, more or less;
e. To the heirs of PACIFICO M. RUIZ, Lot
No. 5 consisting of 369.29 square meters,
more or less, and
f. To GORGONIA MEDINA, Lot No. 6,
consisting of 369.29 square meters, more
or less.7
On 8 October 1991, the trial court issued an order
supplementing its decision dated 20 November 1989 which reads
in part:
[T]hat the parties thereafter, engaged the services of
one common geodetic engineer in the person of Rolly
Francisco to conduct the survey and effect the
subdivision of Lot 1199, which was subdivided into
Lots A, B, C, D, E, and F, the area of which appears,
thus:
Lot 1199-A with an area of 371 sq. ms.,
which lot now corresponds to Lot No. 4
adjudicated to Tirso Medina;
Lot 1199-B with an area of 371 sq. ms.,
which lot now corresponds to Lot No. 5
adjudicated to Pacifico Ruiz;
Lot 1199-C with an area of 371 sq. ms.,
which lot now corresponds to Lot No. 6
adjudicated to Gorgonio Medina;
Lot 1199-D with an area of 482 sq. ms.,
which lot now corresponds to Lot No. 1
adjudicated to Bonifacio Natividad;
Lot 1199-E with an area of 372 sq. ms.,
which lot now corresponds to Lot No. 2
adjudicated to Heirs of Maria Medina; and
Lot 1199-F with an area of 372 sq. ms.,
which lot now corresponds to Lot No. 3
adjudicated to Vivencio M. Ruiz; that in this
subdivision made by the geodetic engineer,
there was no change in the designation of
the particular places adjudicated to the
parties, except the change in areas allotted
after the actual survey made.
WHEREFORE, finding the motion to be in order, the
Court resolves to grant the same and hereby orders,
that:

EVIDENCE

Lot 1199-A with an area of 371 sq. ms. is

Lot 4, decision, adjudicated to Tirso
Medina;
Lot 1199-B with an area of 371 sq. ms. is
Lot 5, decision, adjudicated to Pacifico
Ruiz;
Lot 1199-C with an area of 371 sq. ms. is
Lot 6, decision, adjudicated to Gorgonio
Medina;
Lot 1199-D with an area of 482 sq. ms. is
Lot 1, decision, adjudicated to Bonifacio
Natividad;
Lot 1199-E with an area of 372 sq. ms. is
Lot 2, decision, adjudicated to Heirs of
Maria Medina;
Lot 1199-F with an area of 372 sq. ms. is
Lot 3, decision, adjudicated to Vivencio M.
Ruiz.
This Order supplements the Decision dated November
20, 1989.8
Pursuant to the court-approved partition, Lot 1199-C, measuring
371 square meters, was registered in the name of Gorgonio
Median for which Transfer Certificate of Title (TCT) No. NT230248 of the Registry of Deeds for the Province of Nueva Ecija
was issued to him.9
On 11 June 2001, Bonifacio Natividad, thru his alleged AttorneyIn-Fact, Philip M. Natividad, filed before the RTC of Guimba,
Nueva Ecija, Branch 31, a Complaint for Annulment of TCT No.
NT-230248 and Damages.10 It impleaded as respondents Abiel
Medina and Veronica de Guzman who are occupying the said
land. Bonifacio asks, among other things, that 1/3 of said land
be surrendered to him because he had bought the same from
Gorgonio Medina. In the Answer11 filed by Abiel Medina and
Veronica de Guzman, they argued, inter alia, that Philip
Natividad had no legal capacity to sue because the Special
Power of Attorney annexed to the Complaint did not grant him
such authority. They further added that the Complaint failed to
implead all the parties-in-interest considering that the ownership
of the land covered by TCT No. NT-230248 had already passed
to eleven heirs of Gorgonio Medina.
Bonifacio, thru Philip, filed a Motion for Bill of Particulars12
praying that an order be issued by the court directing Abiel
Medina and Veronica de Guzman to give the names and present
addresses of all the heirs of Gorgonio Medina. Said motion was
opposed.13 In an order dated 15 October 2001, the trial court
granted the motion.14 Defendants complied with the courts
order and submitted the names and addresses of all the heirs of
Gorgonio Medina.15
On 7 January 2002, Bonifacio filed a Motion for Leave to Admit
Amended Complaint with prayer that summons upon eight heirs
be made through publication.16 The Amended Complaint
impleaded all the heirs of Gorgonio Medina (petitioners herein).
In said amended complaint, a special power of attorney17 dated
21 September 2001 allegedly executed by Bonifacio Natividad in
the State of Washington, United States of America, and
acknowledged before Phyllis Perry, a Notary Public of the State

AGUSTIN, E.P. | 242

of Washington, USA, was attached authorizing Philip Natividad

to:

of land (Lot 1199, CAD-162 Guimba Cadastre) owned

in common by him and his co-heirs.

1. To file all appropriate cases in court against the

heirs of Gorgonio Medina for the recovery of the lot
that I purchased from said Gorgonio Medina by virtue
of Deed of Absolute Sale executed on March 29, 1972
and notarized by Atty. Inocencio B. Garampil under
Doc. No. 435, Page No. 87, Book No. 1, Series of
1972, which lot is now titled in the name of Gorgonio
Medina under Transfer Certificate of Title No. NT230248;

d. The land subject of the deed of sale is not the one

covered by TCT No. 230248.
Issues:
1. Whether the deed of sale of sale may be
given effect notwithstanding the fact that
the subject thereof is different from the
portion covered by TCT No. 230248.

2. To institute all legal actions/cases in court for the

annulment of said Transfer Certificate of Title No. NT
-230248 which now covers the lot I bought from
Gorgonio Medina;

2. Whether Mr. Philip Natividad is duly

authorized to represent his father,
Bonifacio Natividad in this case.23

3. To represent me in all proceedings/hearings of the

above-mentioned case/s up to its termination;

The parties manifested that after they shall have filed their
respective memoranda, the case shall be submitted for decision.

4. To enter into a fair and reasonable compromise

agreement and do all acts for the protection and
preservation of my rights and interest over the abovementioned lot;

In its decision dated 10 December 2003, the trial court ruled in

favor of Bonifacio Natividad. The decretal portion of the decision
reads:

5. To negotiate/transact with all persons, secure and

sign all necessary documents for the attainment of
the above purposes.
In an Order dated18 30 January 2002, the trial court approved
the motion and admitted the Amended Complaint. It directed the
issuance of the corresponding summons, the same to be
published in a newspaper of general circulation for three
consecutive weeks. As to plaintiffs authority to sue, the trial
court ruled that said issue had been settled by the special power
of attorney attached to the Amended Complaint.
On 17 May 2002, the heirs of Gorgonio Medina filed a Motion to
Dismiss19 which the trial court denied on 20 August 2002.20 On
10 September 2002, the heirs filed their Answer raising the
following defenses: prescription, laches, lack of cause of action,
lack of legal capacity to sue by Attorney-in-Fact, indefeasibility of
TCT No. NT-230248 and lack of jurisdiction over the case for
failure of the plaintiff to comply with the mandatory requirement
of the Katarungang Pambarangay. Plaintiff filed his Reply dated
18 September 2002 specifically denying the allegations
contained in the Answer with Compulsory Counterclaim.21
During the Pre-Trial, the parties stipulated the following facts
and issues:
a. TCT No. N-230248 in the name of Gorgonio Medina
covers 371 square meters. This title was one of the
titles issued as transfer from Original Certificate of
Title No. 130366.22
b. TCT No. 230248 came into being by virtue of the
decision in Civil Case No. 781-G, a case of partition
among Gorgonio Medina and his co-heirs decided by
RTC Branch 33.
c. The late Gorgonio Medina executed a Deed of
Absolute Sale over 1/3 portion of his share in a parcel

EVIDENCE

WHEREFORE, judgment is hereby rendered in favor of

the plaintiff ordering the defendants to convey to the
plaintiff 1/3 portion of the lot covered by TCT No.
230248 together with the improvements thereon and
to account for, and deliver to the plaintiff the income
derived therefrom from the institution of this case up
to the execution of this decision.
No pronouncement as to damages there being no
reservation made by the plaintiff to present evidence
thereof.24
On the issue of Philip Natividads authority to represent his
father, the court ruled that it was convinced that Philip was
authorized to represent his father by virtue of a notarized special
power of attorney executed by Bonifacio attached to the
amended complaint. It explained that the document was a public
document as defined under Section 20, paragraph (a) of Rule
132 of the Rules of Court, the same having been notarized by a
notary public for the State of Washington, USA. In the absence
of any evidence to show that said special power of attorney was
falsified, it was sufficient authority for Mr. Natividad to represent
his father.
The trial court likewise ruled that the deed of absolute sale
executed by Gorgonio Medina in favor of Bonifacio Natividad
may be given effect notwithstanding the fact that the portion of
Lot 1199 specified as its object was different from the portion
adjudicated to Gorgonio Medina. It declared that the 1/3 portion
of the land covered by TCT No. NT-230248 shall be deemed the
object of the deed of sale. It agreed with Bonifacio that what
was sold by Gorgonio Medina to him (Bonifacio) was his share,
right and participation in the land known as Lot 1199. At the
time of the sale, Lot 1199 was not yet divided. Gorgonio Medina
specified a portion of Lot 1199, expecting that portion to be
adjudicated to him, but his expectation did not materialize
because a different portion was adjudicated to him during the
partition. It added that justice demanded that a portion of what
was adjudicated to him be considered as the object of the deed
of sale.

AGUSTIN, E.P. | 243

The trial court further ruled that prescription and laches did not
set in. Since there was an express trust created between
Gorgonio Medina and Bonifacio Natividad, the action to compel
the defendants to convey the property to Bonifacio did not
prescribe. It explained that it is only when the trustee repudiates
the trust that the prescriptive period of 10 years commences to
run. In the instant case, Gorgonio Medina (trustee) repudiated
the trust on 5 July 1993 when TCT No. NT-230248 was issued in
his name. Thus, the filing of the complaint on 11 June 2001 was
well within the ten-year prescriptive period.
On 22 December 2003, the petitioner-heirs of Gorgonio Medina
filed a Notice of Appeal informing the trail court that they were
appealing the decision to the Court of Appeals.25 A Notice of
Appeal having been seasonably filed by the petitioners, the
entire records of the case were forwarded to the Court of
Appeals.26
On 13 January 2004, Bonifacio Natividad filed a Motion for
Execution Pending Appeal27 which the trial court denied, it
having lost jurisdiction over the case because the appeal was
already perfected when the motion was filed.28
On 20 November 2006, the Court of Appeals rendered its
decision affirming with modification the decision of the trial
court. It disposed of the case as follows:
WHEREFORE, the Decision of the RTC, Branch 33,
Guimba, Nueva Ecija, dated December 10, 2003, is
hereby AFFIRMED with the MODIFICATION ordering
the defendants-appellants to convey to plaintiffappellee an area equivalent to 90 square meters of
the land covered by TCT No. NT-230248.29
The appellate court affirmed the findings of the trial court, but
ruled that the trust established between the parties was an
implied or constructive trust, and not an express trust. It added
that what should be conveyed to Bonifacio Natividad was only
1/3 of 270 square meters or 90 square meters, and not 1/3 of
371 square meters since what was sold to him was only a part of
one of the two portions owned by Gorgonio Medina in the entire
lot. Finally, it declared that the contention that the Complaint
should have been dismissed for lack of cause of action,
considering that the Special Power of Attorney executed abroad
by Bonifacio Natividad in favor of his son was not properly
authenticated before a consular officer, put a premium on
technicalities at the expense of substantial justice. Litigation, it
said, should, as much as possible, be decided on the merits and
not on technicalities.
Petitioners filed a Motion for Reconsideration30 which the Court
of Appeals denied in a resolution dated 16 April 2007.31
Hence, the instant petition raising the following issues:
WHETHER OR NOT THE COMPROMISE AGREEMENT
THAT THE TRIAL COURT APPROVED IN CIVIL CASE
NO. 781-G NOVATED THE DEED OF ABSOLUTE SALE
DATED 29 MARCH 1972 BETWEEN GORGONIO
MEDINA AND BONIFACIO NATIVIDAD.
WHETHER OR NOT BONIFACIO NATIVIDAD IS
ESTOPPED BY LACHES.

EVIDENCE

WHETHER OR NOT THE REGISTRATION OF LOT NO.

1199-C IN THE NAME OF GORGONIO MEDINA WAS
IN FRAUD OF BONIFACIO NATIVIDAD.
WHETHER OR NOT A CONSTRUCTIVE TRUST WAS
CREATED BETWEEN GORGONIO MEDINA AND
BONIFACIO NATIVIDAD.
WHETHER OR NOT BONIFACIO NATIVIDADS CAUSE
OF ACTION HAS ALREADY PRESCRIBED.
WHETHER OR NOT THE COMPLAINT STATES A
CAUSE OF ACTION.
Among the issues raised by petitioners the last is what we shall
first tackle. Petitioners contend that the Court of Appeals
committed a very grave error in not finding that the respondent
was without any cause of action. Petitioners argue:
The Complaint in this case was instituted by Philip M.
Natividad in the name of Bonifacio Natividad upon the
strength of a Special Power of Attorney executed by
the latter in Washington, U.S.A. While the document
appears to have been acknowledged before Phyllis
Perry, a Notary Public for the jurisdiction of the State
of Washington, U.S.A., it was not presented before a
Philippine Consular Officer for the requisite
authentication.
The Revised Rules on Evidence require that a
document acknowledged before a notary public being
a public document, such record if kept in a foreign
country, should be accompanied with a certificate that
such officer has the custody thereof made by a
secretary of the embassy or legation, consul general,
consul, vice consul, or consular agent or by an officer
in the foreign service of the Philippines stationed in
the foreign country in which the record is kept,
authenticated by the seal of his office. In the absence
of the requisite certification and authentication of the
public document, the same cannot be proved and,
therefore, inadmissible as evidence.
Bonifacio Natividads Special Power of Attorney not
having been duly certified and authenticated, it
cannot be duly proved. It is, therefore, deemed as
not having been executed for purposes of instituting
an action on his behalf. Without any valid authority to
institute the action on behalf of his father, Philip
Natividad is deemed to have instituted it on his own.
Philip Natividad not being a party to the Deed of
Absolute Sale between Gorgonio Medina and
Bonifacio Natividad, he is undoubtedly not the real
party in interest because he does not have any
material interest in the contract which is the source of
Bonifacio Natividads cause of action. He does not
stand to be benefited or injured by a judgment in the
suit and neither is he entitled to the avails of the suit.
Not being the real party in interest, and being
deemed to have brought the action on his own, Philip
M. Natividad has no cause of action.32
The trial court was convinced that Philip Natividad was
authorized by his father (Bonifacio) in this case by virtue of the
special power of attorney that the latter issued. The special

AGUSTIN, E.P. | 244

power of attorney, it claims, is a public document, the same

having been notarized by a notary public of the State of
Washington, USA. It said that there being no evidence showing
that said document had been falsified, the same was sufficient
authority for Philip to represent his father. The Court of Appeals
considered the fact that the special power of attorney was not
properly authenticated before a consular office to be a mere
technicality and could not be the basis for the dismissal of the
complaint for lack of cause of action.
On his part, respondent said the notarized special power of
attorney which he appended to the complaint is a public
document. It carries with it the presumption of regularity and
any suspicion on the authenticity and due execution thereof
cannot stand against said presumption absent evidence which is
clear and convincing.
The question to be answered is: Is the Special Power of Attorney
supposedly authorizing Philip Natividad to file the instant case in
behalf of his father admissible in evidence?
In Lopez v. Court of Appeals,33 we have ruled that a special
power of attorney executed in a foreign country is, generally, not
admissible in evidence as a public document in our courts. In
said case, we said:
Is the special power of attorney relied upon by Mrs.
Ty a public document? We find that it is. It has been
notarized by a notary public or by a competent public
official with all the solemnities required by law of a
public document. When executed and acknowledged
in the Philippines, such a public document or a
certified true copy thereof is admissible in evidence.
Its due execution and authentication need not be
proven unlike a private writing.
Section 25,34 Rule 132 of the Rules of Court provides

Sec. 25. Proof of public or official record. An official

record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines
stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.
From the foregoing provision, when the special
power
of
attorney
is
executed
and
acknowledged before a notary public or other
competent official in a foreign country, it
cannot be admitted in evidence unless it is
certified as such in accordance with the
foregoing provision of the rules by a secretary
of embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer
in the foreign service of the Philippines
stationed in the foreign country in which the
record is kept of said public document and
authenticated by the seal of his office. A city

EVIDENCE

judge-notary who notarized the document, as in this

case, cannot issue such certification.
Considering that the record of the case does not
disclose any compliance with the provisions of Section
25, Rule 132 of the Rules of Court on the part of the
petitioner, the special power of attorney in question is
not admissible in evidence. As such, Mrs. Priscilla L.
Ty cannot lawfully prosecute the case against the
private respondents in the name of her principal as
her authority through a special power of attorney had
not been duly established in evidence. The litigation
was not commenced by the real party-in-interest or
by one duly authorized by the said party.
This being so, the Metropolitan Trial Court, the
Regional Trial Court and the Court of Appeals never
acquired jurisdiction over the person of the real partyin-interest Angelita Lopez. For lack of the requisite
jurisdiction, all the proceedings in the said courts are
null and void ab initio. All proceedings therein should
be and are hereby set aside.
Accordingly, it is Our considered opinion, and We so
hold, that a special power of attorney executed
before a city judge-public notary in a foreign country,
without the certification or authentication required
under Section 25, Rule 132 of the Rules of Court, is
not admissible in evidence in Philippine courts.
(Emphasis supplied.)
In the case under consideration, the supposed special power of
attorney involved was executed and acknowledged before Phyllis
Perry, a Notary Public of the State of Washington, USA. This
being the case, a certification or authentication, as required by
Section 25 (now Section 24), Rules of Court, by a secretary of
the embassy or legation, consul general, consul, vice consul, or
consular agent or by any other officer in the foreign service of
the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office, is
required. A notary public in a foreign country is not one of those
who can issue the required certificate.
The records are bereft of evidence showing that there was
compliance with Section 25 (now Section 24). Non-compliance
therewith will render the special power of attorney not
admissible in evidence. Not being duly established in evidence,
the special power of attorney cannot be used by Philip Natividad
to represent his father, Bonifacio Natividad, in this legal action
against the petitioners. It is thus clear that this case was not
filed by the real party-in-interest (Bonifacio) or by one duly
authorized by said party. Not being a real party-in-interest and
sans the authority to pursue the case, Philip Natividad could not
have validly commenced this case. The special power of attorney
executed before a notary public in a foreign country without the
requirements mentioned in Section 25 (now Section 24) of the
Rules of Court cannot be admitted in evidence before Philippine
courts.
Both lower courts and respondents contention that the lack of
consular authentication is a mere technicality that can be
brushed aside in order to uphold substantial justice, is
untenable. The failure to have the special power of attorney
authenticated is not merely a technicality -- it is a question of
jurisdiction. In Lopez, we pronounced that jurisdiction over the
person of the real party-in-interest was never acquired by the
courts. As a result, all proceedings in the lower courts were
declared null and void ab initio and thus set aside.

AGUSTIN, E.P. | 245

In the case before us, the Regional Trial Court and the Court of
Appeals did not acquire jurisdiction over the person of Bonifacio
Natividad. Following our pronouncement in Lopez, all
proceedings before these courts are voided and set aside. In
light of this, we find no need to discuss the other issues raised.
WHEREFORE, premises considered, the instant petition is
GRANTED. All the proceedings before the Regional Trial Court
of Guimba, Nueva Ecija, Branch 33 (Civil Case No. 1165-G) and
the Court of Appeals (CA-G.R. CV No. 82160) are hereby
declared void, and the case is hereby DISMISSED. No costs.
SO ORDERED.

EVIDENCE

AGUSTIN, E.P. | 246

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129416

November 25, 2004

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B.

TIGNO, petitioners,
vs.
SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO
and the HONORABLE COURT OF APPEALS, respondents.
DECISION
TINGA, J.:
The controversy in the present petition hinges on the
admissibility of a single document, a deed of sale involving
interest over real property, notarized by a person of
questionable capacity. The assailed ruling of the Court of
Appeals, which overturned the findings of fact of the Regional
Trial Court, relied primarily on the presumption of regularity
attaching to notarized documents with respect to its due
execution. We conclude instead that the document has not been
duly notarized and accordingly reverse the Court of Appeals.
The facts are as follow:
On 11 January 1980, respondent spouses Estafino and Florentina
Aquino (the Aquinos) filed a complaint for enforcement of
contract and damages against Isidro Bustria (Bustria).1 The
complaint sought to enforce an alleged sale by Bustria to the
Aquinos of a one hundred twenty thousand (120,000) square
meter fishpond located in Dasci, Pangasinan. The property was
not registered either under the Land Registration Act or under
the Spanish Mortgage Law, though registrable under Act No.
3344.2 The conveyance was covered by a Deed of Sale dated 2
September 1978.
Eventually, Bustria and the Aquinos entered into a compromise
agreement, whereby Bustria agreed to recognize the validity of
the sale, and the Aquinos in turn agreed to grant to Bustria the
right to repurchase the same property after the lapse of seven
(7) years.
Upon submission, the Court of First Instance of Pangasinan,
Branch VII, approved and incorporated the compromise
agreement in a Decision which it rendered on 7 September
1981.
Bustria died in October of 1986.3 On 1 December 1989,
petitioner Zenaida B. Tigno (Tigno), in substitution of her
deceased father Isidro Bustria,4 attempted to repurchase the
property by filing a Motion for Consignation. She deposited the
amount of Two Hundred Thirty Thousand Pesos (P200,000.00)
with the trial court, now Regional Trial Court (RTC), Branch 55 at
Alaminos, Pangasinan. On 18 December 1989, the Aquinos filed
an opposition, arguing that the right to repurchase was not yet
demandable and that Tigno had failed to make a tender of
payment. In an Order dated 10 October 1999, the RTC denied
the Motion for Consignation.5

EVIDENCE

In June of 1991, Tigno filed a Motion for a Writ of Execution,

which was likewise opposed by the Aquinos, and denied by the
RTC. Then, on 6 September 1991, Tigno filed an action for
Revival of Judgment,6 seeking the revival of the decision in Civil
Case No. A-1257, so that it could be executed accordingly.7 The
Aquinos filed an answer, wherein they alleged that Bustria had
sold his right to repurchase the property to them in a deed of
sale dated 17 October 1985.8
Among the witnesses presented by the Aquinos during trial were
Jesus De Francia (De Francia), the instrumental witness to the
deed of sale, and former Judge Franklin Cario (Judge Cario),
who notarized the same. These two witnesses testified as to the
occasion of the execution and signing of the deed of sale by
Bustria. Thereafter, in their Formal Offer of Documentary
Evidence, the Aquinos offered for admission as their Exhibit No.
"8," the deed of sale (Deed of Sale)9 purportedly executed by
Bustria. The admission of the Deed of Sale was objected to by
Tigno on the ground that it was a false and fraudulent document
which had not been acknowledged by Bustria as his own; and
that its existence was suspicious, considering that it had been
previously unknown, and not even presented by the Aquinos
when they opposed Tigno's previous Motion for Consignation.10
In an Order dated 6 April 1994, the RTC refused to admit the
Deed of Sale in evidence.11 A Motion for Reconsideration praying
for the admission of said exhibit was denied in an Order dated
27 April 1994.12
Then, on 18 August 1994, a Decision was rendered by the RTC
in favor of Tigno. The RTC therein expressed doubts as to the
authenticity of the Deed of Sale, characterizing the testimonies
of De Francia and Cario as conflicting.13 The RTC likewise
observed that nowhere in the alleged deed of sale was there any
statement that it was acknowledged by Bustria;14 that it was
suspicious that Bustria was not assisted or represented by his
counsel in connection with the preparation and execution of the
deed of sale15 or that Aquino had raised the matter of the deed
of sale in his previous Opposition to the Motion for
Consignation.16 The RTC then stressed that the previous Motion
for Execution lodged by Tigno had to be denied since more than
five (5) years had elapsed from the date the judgment in Civil
Case No. A-1257 had become final and executory; but the
judgment could be revived by action such as the instant
complaint. Accordingly, the RTC ordered the revival of the
judgment dated 7 September 1981 in Civil Case No. A-1257.17
The Aquinos interposed an appeal to the Court of Appeals.18 In
the meantime, the RTC allowed the execution pending appeal of
its Decision.19 On 23 December 1996, the Court of Appeals
Tenth Division promulgated a Decision20 reversing and setting
aside the RTC Decision. The appellate court ratiocinated that
there were no material or substantial inconsistencies between
the testimonies of Cario and De Francia that would taint the
document with doubtful authenticity; that the absence of the
acknowledgment and substitution instead of a jurat did not
render the instrument invalid; and that the non-assistance or
representation of Bustria by counsel did not render the
document null and ineffective.21 It was noted that a notarized
document carried in its favor the presumption of regularity with
respect to its due execution, and that there must be clear,
convincing and more than merely preponderant evidence to
contradict the same. Accordingly, the Court of Appeals held that
the RTC erred in refusing to admit the Deed of Sale, and that
the document extinguished the right of Bustria's heirs to
repurchase the property.

AGUSTIN, E.P. | 247

After the Court of Appeals denied Tigno's Motion for

Reconsideration,22 the present petition was filed before this
Court. Tigno imputes grave abuse of discretion and
misappreciation of facts to the Court of Appeals when it
admitted the Deed of Sale. He also argues that the appellate
court should have declared the Deed of Sale as a false,
fraudulent and unreliable document not supported by any
consideration at all.
The general thrusts of the arguments posed by Tigno are
factually based. As such, they could normally lead to the
dismissal of this Petition for Review. However, while this Court is
not ordinarily a trier of facts,23 factual review may be warranted
in instances when the findings of the trial court and the
intermediate appellate court are contrary to each other.24
Moreover, petitioner raises a substantial argument regarding the
capacity of the notary public, Judge Cario, to notarize the
document. The Court of Appeals was unfortunately silent on that
matter, but this Court will take it up with definitiveness.
The notarial certification of the Deed of Sale reads as follows:
ACKNOWLEDGMENT
REPUBLIC
OF
THE
PROVINCE
OF
PANGASINAN
MUNICIPALITY OF ALAMINOS )

PHILIPPINES)
)
S.S.

SUBSCRIBED AND SWORN TO before me this 17th

day of October 1985 at Alaminos, Pangasinan both
parties known to me to be the same parties who
executed the foregoing instrument.

FRANKLIN
Ex-Officio
Judge,
Alaminos, Pangasinan

Notary

CARIO
Public
M.T.C.

There are palpable errors in this certification. Most glaringly, the

document is certified by way of a jurat instead of an
acknowledgment. A jurat is a distinct creature from an
acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court
and declaring it to be his act or deed; while a jurat is that part of
an affidavit where the officer certifies that the same was sworn
before him.25 Under Section 127 of the Land Registration Act,26
which has been replicated in Section 112 of Presidential Decree
No. 1529,27 the Deed of Sale should have been acknowledged
before a notary public.28
But there is an even more substantial defect in the notarization,
one which is determinative of this petition. This pertains to the
authority of Judge Franklin Cario to notarize the Deed of Sale.
It is undisputed that Franklin Cario at the time of the
notarization of the Deed of Sale, was a sitting judge of the
Metropolitan Trial Court of Alaminos.29 Petitioners point out,
citing Tabao v. Asis,30 that municipal judges may not undertake
the preparation and acknowledgment of private documents,
contracts, and other acts of conveyance which bear no relation
to the performance of their functions as judges.31 In response,
respondents claim that the prohibition imposed on municipal
court judges from notarizing documents took effect only in
December of 1989, or four years after the Deed of Sale was
notarized by Cario.32

EVIDENCE

Respondent's contention is erroneous. Municipal Trial Court

(MTC) and Municipal Circuit Trial Court (MCTC) judges are
empowered to perform the functions of notaries public ex officio
under Section 76 of Republic Act No. 296, as amended
(otherwise known as the Judiciary Act of 1948) and Section 242
of the Revised Administrative Code.33 However, as far back as
1980 in Borre v. Moya,34 the Court explicitly declared that
municipal court judges such as Cario may notarize only
documents connected with the exercise of their official duties.35
The Deed of Sale was not connected with any official duties of
Judge Cario, and there was no reason for him to notarize it.
Our observations as to the errant judge in Borre are pertinent in
this case, considering that Judge Cario identified himself in the
Deed of Sale as "Ex-Officio Notary Public, Judge, MTC:"
[A notary ex officio] should not compete with private
law practitioners or regular notaries in transacting
legal conveyancing business.
In the instant case, it was not proper that a city judge should
notarize documents involving private transactions and sign the
document in this wise: "GUMERSINDO ARCILLA, Notary Public
Ex-Officio, City Judge" (p. 16, Rollo, Annex D of Complaint). In
doing so, he obliterated the distinction between a regular notary
and a notary ex officio.36
There are possible grounds for leniency in connection with this
matter, as Supreme Court Circular No. I-90 permits notaries
public ex officio to perform any act within the competency of a
regular notary public provided that certification be made in the
notarized documents attesting to the lack of any lawyer or
notary public in such municipality or circuit. Indeed, it is only
when there are no lawyers or notaries public that the exception
applies.37 The facts of this case do not warrant a relaxed attitude
towards Judge Cario's improper notarial activity. There was no
such certification in the Deed of Sale. Even if one was produced,
we would be hard put to accept the veracity of its contents,
considering that Alaminos, Pangasinan, now a city,38 was even
then not an isolated backwater town and had its fair share of
practicing lawyers.
There may be sufficient ground to call to task Judge Cario, who
ceased being a judge in 1986, for his improper notarial activity.
Perhaps though, formal sanction may no longer be appropriate
considering Judge Cario's advanced age, assuming he is still
alive.39 However, this Decision should again serve as an
affirmation of the rule prohibiting municipal judges from
notarizing documents not connected with the exercise of their
official duties, subject to the exceptions laid down in Circular No.
1-90.
Most crucially for this case, we should deem the Deed of Sale as
not having been notarized at all. The validity of a notarial
certification necessarily derives from the authority of the notarial
officer. If the notary public does not have the capacity to
notarize a document, but does so anyway, then the document
should be treated as unnotarized. The rule may strike as rather
harsh, and perhaps may prove to be prejudicial to parties in
good faith relying on the proferred authority of the notary public
or the person pretending to be one. Still, to admit otherwise
would render merely officious the elaborate process devised by
this Court in order that a lawyer may receive a notarial
commission. Without such a rule, the notarization of a document
by a duly appointed notary public will have the same legal effect
as one accomplished by a non-lawyer engaged in pretense.
The notarization of a document carries considerable legal effect.
Notarization of a private document converts such document into

AGUSTIN, E.P. | 248

a public one, and renders it admissible in court without further

proof of its authenticity.40 Thus, notarization is not an empty
routine; to the contrary, it engages public interest in a
substantial degree and the protection of that interest requires
preventing those who are not qualified or authorized to act as
notaries public from imposing upon the public and the courts
and administrative offices generally.41
On the other hand, what then is the effect on the Deed of Sale if
it was not notarized? True enough, from a civil law perspective,
the absence of notarization of the Deed of Sale would not
necessarily invalidate the transaction evidenced therein. Article
1358 of the Civil Code requires that the form of a contract that
transmits or extinguishes real rights over immovable property
should be in a public document, yet it is also an accepted rule
that the failure to observe the proper form does not render the
transaction invalid. Thus, it has been uniformly held that the
form required in Article 1358 is not essential to the validity or
enforceability of the transaction, but required merely for
convenience.42 We have even affirmed that a sale of real
property though not consigned in a public instrument or formal
writing, is nevertheless valid and binding among the parties, for
the time-honored rule is that even a verbal contract of sale or
real estate produces legal effects between the parties.43
Still, the Court has to reckon with the implications of the lack of
valid notarization of the Deed of Sale from the perspective of the
law on evidence. After all, the case rests on the admissibility of
the Deed of Sale.
Clearly, the presumption of regularity relied upon by the Court of
Appeals no longer holds true since the Deed of Sale is not a
notarized document. Its proper probative value is governed by
the Rules of Court. Section 19, Rule 132 states:
Section 19. Classes of documents.For the purpose
of their presentation in evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official
acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public
except last wills and testaments; and
(c) Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private. (Emphasis supplied.)
The Deed of Sale, invalidly notarized as it was, does not fall
under the enumeration of public documents; hence, it must be
considered a private document. The nullity of the alleged or
attempted notarization performed by Judge Cario is sufficient to
exclude the document in question from the class of public
documents. Even assuming that the Deed of Sale was validly
notarized, it would still be classified as a private document, since
it was not properly acknowledged, but merely subscribed and
sworn to by way of jurat.

EVIDENCE

Being a private document, the Deed of Sale is now subject to

the requirement of proof under Section 20, Rule 132, which
states:
Section 20. Proof of private document.Before any private
document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
(a) By anyone who saw the document executed or
written; or
(b) By evidence of the genuineness of the signature
or handwriting of the maker.
Any other private document need only be identified as that
which is claimed to be.
The Deed of Sale was offered in evidence as authentic by the
Aquinos, who likewise insist that its enforceability militates
against Tigno's claim. Correspondingly, the burden falls upon the
Aquinos to prove its authenticity and due execution. The Court
of Appeals clearly erred in not appreciating the Deed of Sale as a
private document and in applying the presumption of regularity
that attaches only to duly notarized documents, as distinguished
from private documents.
Did the RTC err then in refusing to admit the Deed of Sale? We
hold that it did not. Section 20, Rule 132 provides ample
discretion on the trier of fact before it may choose to receive the
private document in evidence. The RTC wisely refused to admit
the Deed of Sale, taking great lengths as it did to explain its
doubts as to its veracity. The RTC was not convinced of the
proffered proof by the Aquinos, and the exercise of its sound
discretion as the primary trier of fact warrants due respect.
The most telling observation of the RTC relates to the fact that
for the very first time respondents alleged the existence of the
Deed of Sale when they filed their answer to petitioner's current
action to revive judgment.44 Prior to the initiation of the present
action, Tigno had tried to operationalize and implement the
Compromise Agreement through two judicial means:
consignation and execution of judgment. The Aquinos duly
opposed these prior attempts of the petitioner to exercise the
right to repurchase, but they did not raise then the claim that
such right to repurchase was already extinguished by the Deed
of Sale. Tigno attempted to exercise the right to repurchase only
a few years after the execution of the Deed of Sale to which
respondents themselves were signatories. Thus, it is incredulous
that the Aquinos did not invoke the Deed of Sale when they
opposed in court petitioner's successive attempts at consignation
and execution of judgment. The Deed of Sale, if in existence and
valid, would have already precluded Tigno's causes of action for
either consignation or execution of judgment. The only
believable conclusion, as drawn by the RTC, was that the Deed
of Sale had yet to be created when petitioner moved in 1990 for
consignation and execution of judgmentan existential anomaly
if we were to agree with the respondents that such document
had been signed and notarized back in 1985.
The dubiousness in origin of the Deed of Sale is not alleviated by
the other observations of the RTC. It also pointed to certain
incredible aspects in the Aquinos' tale of events. It noted that no
receipts were ever presented by the respondents to evidence
actual payment of consideration by them to Bustria, despite the
allegation of the respondents that the amount was covered by
seven (7) receipts.45 The Aquinos claimed that Bustria kept all
the receipts, an assertion which the RTC found as unbelievable,

AGUSTIN, E.P. | 249

citing ordinary human nature to ask for receipts for significant

amounts given and to keep the same.46 In itself, the absence of
receipts, or any proof of consideration, would not be conclusive
since consideration is always presumed. However, given the
totality of the circumstances surrounding this case, the absence
of such proof further militates against the claims of the Aquinos.
We can appreciate in a similar vein the observation of the Court
of Appeals that Bustria did not bother to seek his lawyer's
assistance as regards the execution of the Deed of Sale,
considering that the subject property had previously been
fiercely litigated. Although the Court of Appeals was correct in
ruling that the document would not be rendered null or
ineffective due to the lack of assistance of counsel, the
implausibility of the scenario strikes as odd and therefore
reinforces the version found by the RTC as credible.
The Court likewise has its own observations on the record that
affirm the doubts raised by the Court of Appeals. Isidro Bustria,
who would die in 1986, was already ninety-three (93) years old
when he allegedly signed the Deed of Sale in 1985. Still, the
Aquinos asserted before the RTC that Bustria traveled
unaccompanied from his home in Dasol, Pangasinan, passing
through two towns to Alaminos, to execute the Deed of Sale.
Without discrediting the accomplishments of nonagenarians
capable of great physical feats, it should be acknowledged as a
matter of general assumption that persons of Bustria's age are
typically sedentary and rarely so foolhardy as to insist on
traveling significant distances alone.
Also of note is the fact that there are glaring differences as to
the alleged signature of Bustria on the Deed of Sale and as it
otherwise appears on the judicial record. Bustria's signature in
the 1981 Compromise Agreement is noticeably shaky which is
not surprising, considering that it was subscribed when Bustria
was eighty-nine (89) years old. However, Bustria's signature on
the Deed of Sale, which if genuine was affixed when he was
already ninety-three (93) years old, is remarkably steady in its
strokes. There are also other evident differences between
Bustria's signature on the Deed of Sale and on other documents
on the record.
Admittedly, these doubts cast above arise in chief from an
appreciation of circumstantial evidence. These have to be
weighed against the findings of the Court of Appeals that the
fact that Bustria signed the Deed of Sale was established by the
respective testimonies of witnesses De Francia and Judge
Cario. In its own appreciation of these testimonies, the RTC
alluded to notable inconsistencies in their testimonies. As a final
measure of analysis, the Court shall now examine whether the
appellate court was in error in reversing the conclusion of the
RTC on these testimonies.
The inconsistencies cited by the RTC were that De Francia
testified that Judge Cario himself prepared and typed the Deed
of Sale in his office, where the document was signed,47 while
Judge Cario testified that he did not type the Deed of Sale
since it was already prepared when the parties arrived at his
office for the signing.48 On this point, the Court of Appeals
stated with utter nonchalance that a perusal of the record
revealed no material or substantial inconsistencies between the
testimonies of Judge Cario and De Francia.
Strangely, the appellate court made no comment as to the
inconsistency pointed out by the RTC as to who prepared the
Deed of Sale. If the only point of consideration was the due
execution of the Deed of Sale, then the Court of Appeals should
have properly come out with its finding. Other variances aside,

EVIDENCE

there are no contradictions in the testimonies of Judge Cario

and De Francia on the question of whether or not Bustria signed
the Deed of Sale.
However, as earlier established, the Deed of Sale is a private
document. Thus, not only the due execution of the document
must be proven but also its authenticity. This factor was not duly
considered by the Court of Appeals. The testimonies of Judge
Cario and De Francia now become material not only to
establish due execution, but also the authenticity of the Deed of
Sale. And on this point, the inconsistencies pointed out by the
RTC become crucial.
The matter of authenticity of the Deed of Sale being disputed,
the identity of the progenitor of this all-important document is a
material evidentiary point. It is disconcerting that the very two
witnesses of the respondent offered to prove the Deed of Sale,
flatly contradict each other on the basis of their own personal
and sensory knowledge. Worse, the purported author of the
Deed of Sale disavowed having drafted the document,
notwithstanding the contrary testimony grounded on personal
knowledge by the documentary witness.
Establishing the identity of the person who wrote the Deed of
Sale would not ordinarily be necessary to establish the validity of
the transaction it covers. However, since it is the authenticity of
the document itself that is disputed, then the opposing
testimonies on that point by the material witnesses properly
raises questions about the due execution of the document itself.
The inconsistencies in the testimonies of Judge Cario and De
Francia are irreconcilable. It is not possible to affirm the
testimony of either without denigrating the competence and
credibility of the other as a witness. If Judge Cario was truthful
in testifying that he did not write the Deed of Sale, then doubt
can be cast as to the reliability of the notarial witness De
Francia. It takes a leap of imagination, a high level of gumption,
and perverse deliberation for one to erroneously assert, under
oath and with particularities, that a person drafted a particular
document in his presence.
However, if we were to instead believe De Francia, then the
integrity of the notary public, Judge Cario, would be obviously
compromised. Assuming that Judge Cario had indeed authored
the Deed of Sale, it would indeed be odd that he would not
remember having written the document himself yet sufficiently
recall notarizing the same. If his testimony as to authorship of
the document is deemed as dubious, then there is all the reason
to make a similar assumption as to his testimony on the
notarization of the Deed of Sale.
These inconsistencies are not of consequence because there is
need to indubitably establish the author of the Deed of Sale.
They are important because they cast doubt on the credibility of
those witnesses of the Aquinos, presented as they were to attest
to the due execution and authenticity of the Deed of Sale. The
Court of Appeals was clearly in error in peremptorily disregarding
this observation of the RTC.
As a result, we are less willing than the Court of Appeals to
impute conclusive value to the testimonies of de Francia and
Judge Cario. The totality of the picture leads us to agree with
the trial court that the Deed of Sale is ineluctably dubious in
origin and in execution. The Court deems as correct the refusal
of the RTC to admit the Deed of Sale, since its due execution
and authenticity have not been proven. The evidence pointing to
the non-existence of such a transaction is so clear and
convincing that it is sufficient even to rebut the typical
presumption of regularity arising from the due execution of

AGUSTIN, E.P. | 250

notarial documents. However, for the reasons stated earlier, the

Deed of Sale is ineluctably an unnotarized document. And the
lower court had more than sufficient basis to conclude that it is a
spurious document.
Since the validity of the Deed of Sale has been successfully
assailed, Tigno's right to repurchase was not extinguished at the
time of the filing of the Petition for revival of judgment, as
correctly concluded by the RTC. The Court of Appeals being in
error when it concluded otherwise, the reinstatement of the RTC
Decision is warranted.
WHEREFORE, the Petition is GRANTED. The assailed Decision
dated 23 December 1996 and Resolution dated 9 June 1997 of
the Court of Appeals in CA-G.R. CV No. 49879 is REVERSED, and
the Decision dated 18 August 1994 of the Regional Trial Court of
Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is
REINSTATED. Costs against respondents.
SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and ChicoNazario, JJ., concur.

EVIDENCE

AGUSTIN, E.P. | 251

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 125283

February 10, 2006

PAN PACIFIC INDUSTRIAL SALES CO., INC., Petitioner,

vs.
COURT OF APPEALS and NICOLAS CAPISTRANO,
Respondents.
DECISION
TINGA, J.:
Petitioner Pan Pacific Industrial Sales Co., Inc. (Pan Pacific) filed
the instant Petition for Review on Certiorari1 assailing the
Decision2 dated 4 June 1996 of the Court of Appeals Fourteenth
Division in C.A. G.R. No. CV-41112. The challenged Decision
affirmed in toto the Decision3 dated 24 April 1992 of the
Regional Trial Court (RTC) of Manila, Branch 18 in Civil Case No.
88-46720.
The case arose when on 22 December 1988, private respondent
Nicolas Capistrano (Capistrano) filed an Amended Complaint4
before the RTC of Manila against Severo C. Cruz III (Cruz), his
spouse Lourdes Yap Miranda, and Atty. Alicia Guanzon,5 pleading
two causes of action.6
The first cause of action is for the nullification, or alternatively,
for the "rescission," of a Deed of Absolute Sale7 covering a
parcel of land that Capistrano owned, located at 1821 (Int.), Otis
Street (now Paz Guanzon Street), Paco, Manila, and covered by
Transfer Certificate of Title (TCT) No. 143599 to Cruz.8 This is
the subject lot. Capistrano denied having executed the deed.
The second cause of action is for the rescission of another
agreement with an alternative prayer for specific performance.
Capistrano alleged that he agreed to sell another parcel of land
in the same vicinity to Cruz. According to Capistrano, Cruz only
paid P100,000.00 of the stipulated purchase price, thereby
leaving P250,000.00 still unpaid.9

On 15 March 1983, Capistrano executed the Deed of Absolute

Sale15 over the subject lot in favor of Cruz. Two (2) days later,
on 17 March 1983, Notary Public Vicente J. Benedicto
(Benedicto) notarized the deed. However, it was earlier or on 9
March 1983 that Capistranos wife, Josefa Borromeo Capistrano,
signed the Marital Consent16 evidencing her conformity in
advance to the sale. The Marital Consent was also sworn to
before Benedicto.
Following the execution of the deed of sale, Cruz continued
payments to Capistrano for the subject lot. Sometime in October
1985, Capistrano delivered to Cruz a Statement of Account17
signed by Capistrano, showing that as of 30 October 1985,
Cruzs balance stood at P19,561.00 as principal, and P3,520.98
as interest, or a total of P23,081.98.
Thus, in May 1987, with the mortgage on the subject lot then
being in danger of foreclosure by the Bank, Cruz filed a case
with the RTC of Manila, Branch 11, docketed as Civil Case No.
87-40647, to enjoin the foreclosure. Cruz impleaded Capistrano
and his spouse Josefa Borromeo Capistrano as defendants, the
title to the subject lot not having been transferred yet to his
name.18
Cruz also devised a way to save the subject lot from foreclosure
by seeking a buyer for it and eventually arranging for the buyer
to pay the mortgage debt. Towards this end, Cruz succeeded in
engaging Pan Pacific. Thus, on 22 September 1988, Pan Pacific
paid off Cruzs debt in the amount of P1,180,000.00.19
Consequently, on 23 September
1988, the Bank executed a Cancellation of Real Estate
Mortgage.20 On even date, Cruz executed a Deed of Absolute
Sale21 over the subject lot in favor of Pan Pacific, attaching
thereto the previous Deed of Absolute Sale executed by
Capistrano in favor of Cruz.
Surprisingly, on 20 October 1988, Capistrano filed a Revocation
of Special Power of Attorney22 with the Register of Deeds of
Manila. Less than a week later, Capistrano sent the Register of
Deeds another letter informing said officer of his having come to
know of the sale of the subject lot by Cruz to Pan Pacific and
requesting the officer to withhold any action on the
transaction.23
Before long, in November 1988, Capistrano filed the precursory
complaint before the Manila RTC in Civil Case No. 88-46720.

The operative facts follow.

On 10 September 1982, Capistrano executed a Special Power of
Attorney10 authorizing Cruz to mortgage the subject lot in favor
of Associated Bank (the Bank) as security for the latters loan
accommodation.11
Shortly, by virtue of the Special Power of Attorney, Cruz
obtained a loan in the amount of P500,000.00 from the Bank.
Thus, he executed a Real Estate Mortgage12 over the subject lot
in favor of the Bank.13
Capistrano and Cruz then executed a letter-agreement dated 23
September 1982 whereby Cruz agreed to buy the subject lot for
the price of P350,000.00, of which P200,000.00 would be paid
out of the loan secured by Cruz, and the balance of P150,000.00
in eight (8) quarterly payments of P18,750.00 within two (2)
years from 30 October 1982, without need of demand and with
interest at 18% in case of default.14

EVIDENCE

Pan Pacific, which bought the subject lot from the Cruz spouses,
was allowed to intervene in the proceedings and joined Cruz, et
al. in resisting the complaint insofar as the first cause of action
on the subject lot is concerned.24
Then on 24 April 1992, a Decision was rendered by the trial
court in favor of Capistrano on both causes of action, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant, Severo E. (sic) Cruz III, his
spouse, Lourdes Miranda Cruz, and the intervenor, Pan Pacific
Industrial Sales Co., Inc., as follows:
1. Declaring the Letter-Agreement, dated September
23, 1982, Exhibit "C", as resolved and/or rescinded;

AGUSTIN, E.P. | 252

2. Declaring both the Deed of Absolute Sale, Exhibit

"H", and the document entitled, "Marital Consent",
Exhibit "K", null and void;
3. Declaring the Deed of Absolute Sale executed by
the spouses Severo C. Cruz, III and Lourdes Miranda
Cruz in favor of the intervenor, Pan Pacific Industrial
Sales, Co., Inc., Exhibit "8", null and void;
4. Making the writ of preliminary injunction issued by
this Court on November 23, 1988, permanent;
5. Ordering the intervenor, thru its legal counsel and
corporate secretary, Atty. Senen S. Burgos, who has
possession of the owners copy of TCT No. 143599 of
the Register of Deeds of Manila, in the name of the
plaintiff, to surrender the same to this Court within
ten days from finality of the decision for turn over to
the plaintiff;
6. Ordering Defendant Register of Deeds of Manila to
reject and not give due course to the documents
submitted to it, which have for their purpose the
transfer of the real estate property covered by TCT
No. 143599 from the name of the plaintiff to
Defendant Cruz and/or to the intervenor; and
7. Ordering the spouses Severo C. Cruz, III and
Lourdes Miranda Cruz to pay the plaintiff the sum of
P69,561.00 as net amount due to the latter as per the
computation in the end-part of this decision.
The counterclaims of both Severo C. Cruz, III and spouse, and
of the intervenor, Pan Pacific Industrial Sales Co., Inc., are both
dismissed, for lack of merit.
Double costs against the defendants-Cruz spouses.
SO ORDERED.25
To arrive at the conclusion that the first Deed of Absolute Sale
and the Marital Consent are spurious, the trial court mainly relied
on Capistranos disavowal of his signature and that of his wifes,
together with extrinsic factors which in its opinion evinced the
spuriousness.
Pan Pacific and the Cruz spouses interposed separate appeals to
the Court of Appeals, their common concern being the trial
courts finding that the Deed of Absolute Sale and the Marital
Consent were spurious.26
In assailing this finding, Pan Pacific and the Cruz spouses
contended that Capistrano failed to present clear and convincing
evidence to overturn the presumption of regularity of public
documents like the documents in question.27
The Court of Appeals affirmed the RTC Decision. Concerning the
subject lot, it held that while a notarial document cannot be
disproved by the mere denial of the signer, the denial in this
case should be taken together with the other circumstances of
the case which in sum constitute clear and convincing evidence
sufficient to overcome the presumption of regularity of the
documents.28

EVIDENCE

The Cruz spouses did not elevate the Court of Appeals Decision
to this Court. Thus, the RTC Decision became final as to them.
Pan Pacific, however, filed the instant Petition solely concerning
the first cause of action in the Amended Complaint. Pan Pacific
contends that the genuineness and due execution of the Deed of
Absolute Sale and Marital Consent cannot be overridden by the
self-serving testimony of Capistrano. It stresses that the trial
court cannot rely on irrelevant extrinsic factors to rule against
the genuineness of the deed.29 Finally, it points out that
Capistrano cannot contest the sale of the subject lot to Cruz, as
the sale had already been consummated.30
For his part, Capistrano posits in his Memorandum31 that Pan
Pacific is not an innocent purchaser for value and in good faith
as Cruz was never the registered owner of the subject lot. Pan
Pacific was bound at its peril to investigate the right of Cruz to
transfer the property to it. Moreover, Capistrano asserts that the
legal presumption of regularity of public documents does not
obtain in this case as the documents in question were not
properly notarized. He adds that the parties never appeared
before the notary public as in fact the deed had only been
delivered by Capistrano to the house of Cruzs mother.
Furthermore, Capistrano maintains that his spouses signature on
the Marital Consent is a forgery as it was virtually impossible for
her to have signed the same. Lastly, Capistrano disputes Cruzs
assertion that the sale had been consummated, pointing out that
the Amended Complaint consisted of two (2) causes of action
pertaining to two (2) separate lots, and Cruz had only paid
P100,000.00 of the total price of the lot subject of the second
cause of action.1avvphil.net
The petition is imbued with merit.
Pan Pacific disputes the common conclusion reached by the
courts below that the presumption of regularity of the Deed of
Absolute Sale and the Marital Consent, which in its estimation
are both public documents, has been rebutted by Capistranos
countervailing evidence. The correctness of the conclusions on
the alleged spuriousness of the documents in question drawn by
the courts below from the facts on record is before this Court.
The issue is a question of law cognizable by the Court.32
Deeply embedded in our jurisprudence is the rule that notarial
documents celebrated with all the legal requisites under the
safeguard of a notarial certificate is evidence of a high character
and to overcome its recitals, it is incumbent upon the party
challenging it to prove his claim with clear, convincing and more
than merely preponderant evidence.33
A notarized document carries the evidentiary weight conferred
upon it with respect to its due execution, and it has in its favor
the presumption of regularity which may only be rebutted by
evidence so clear, strong and convincing as to exclude all
controversy as to the falsity of the certificate. Absent such, the
presumption must be upheld. The burden of proof to overcome
the presumption of due execution of a notarial document lies on
the one contesting the same. Furthermore, an allegation of
forgery must be proved by clear and convincing evidence, and
whoever alleges it has the burden of proving the same.34
Evidently, as he impugns the genuineness of the documents,
Capistrano has the burden of making out a clear-cut case that
the documents are bogus. The courts below both concluded that
Capistrano had discharged this burden. However, this Court does
not share the conclusion. Indeed, Capistrano failed to present

AGUSTIN, E.P. | 253

evidence of the forgery that is enough to overcome the

presumption of authenticity.
To support the allegation of the spuriousness of his signature on
the Deed of Absolute Sale and that of his wife on the Marital
Consent, Capistrano relied heavily on his bare denial, at the
same time taking sanctuary behind other circumstances which
supposedly cast doubt on the authenticity of the documents.
Capistrano did not bother to present corroborating witnesses
much less an independent expert witness who could declare with
authority and objectivity that the challenged signatures are
forged. It befuddles the Court why both the courts below did not
find this irregular considering that the Court has previously
declared in Sy Tiangco v. Pablo and Apao,,35 "that the execution
of a document that has been ratified before a notary public
cannot be disproved by the mere denial of the alleged signer."
The case of Chilianchin v. Coquinco36 also finds application in
this regard wherein we stated that:
As the lower court correctly said, the plaintiff did not even
present a sample of his authentic signature to support his
contention that it is not his the (sic) signature appearing in said
document. He did not call a handwriting expert to prove his
assertion. His attorney, at the beginning of the trial, made it of
record that if the defendant present an expert in hand-writing to
show that the signature in question is genuine, the plaintiff will
also present an expert to the contrary, as if it were incumbent
upon the defendant to show that the signature of the plaintiff in
Exhibit A is genuine . . . .37
Corollarily, he who disavows the authenticity of his signature on
a public document bears the responsibility to present evidence to
that effect. Mere disclaimer is not sufficient. At the very least, he
should present corroborating witnesses to prove his assertion. At
best, he should present an expert witness.
On the other hand, the Court cannot understand why an
unfavorable inference arose not from Capistranos but from
Cruzs failure to have the documents examined by an expert
witness of the National Bureau Investigation (NBI) and to
present the notary public as witness. Specifically, the courts
below took Cruzs inability to obtain the NBI examination of the
documents as he had somehow undertaken as an indication that
the documents are counterfeit.38
The courts below may have forgotten that on Capistrano lies the
burden to prove with clear and convincing evidence that the
notarized documents are spurious. Nothing in law or
jurisprudence reposes on Cruz the obligation to prove that the
documents are genuine and duly executed. Hence it is not
incumbent upon Cruz to call the notary public or an expert
witness. In contrast, Capistrano should have called the expert
witness, the notary public himself or the witnesses to the
document to prove his contention that he never signed the deed
of sale, that its subscribing witnesses never saw him sign the
same, and that he never appeared before the notary public
before whom the acknowledgment was made.
In fact, there is no evidence that the notarization of the
documents did not take place. All that Capistrano could say on
this matter was that he had not seen Benedicto, the notary
public.39 The assertion that the parties to the deed never
appeared before the notary public is not supported by evidence
either. The courts below drew an inference to that effect from
Cruzs testimony that the deed of sale was dropped or delivered
to his mothers house.40 That is not a reasonable deduction to

EVIDENCE

make as it is plainly conjectural. No conclusion can be derived

therefrom which could destroy the genuineness of the deed. The
testimony means what it declares: that the copy of the deed was
dropped at the house of Cruzs mother. That is all.
Nor can the Court lend credence to the thinking of the courts
below that since Cruz had a balance of P132,061.00 owing to
Capistrano as of the date of the deed of sale, the latter could not
have possibly executed the deed. This is plain guesswork. From
the existence of Cruzs outstanding balance, the non-existence of
the deed of sale does not necessarily follow.
Indeed, a vendor may agree to a deed of absolute sale even
before full payment of the purchase price. Article 1478 of the
Civil Code states that "the parties may stipulate that ownership
in the thing shall not pass to the purchaser until he has fully paid
the price." A sensu contrario, the parties may likewise stipulate
that the ownership of the property may pass even if the
purchaser has not fully paid the price.
The courts below also assigned an adverse connotation to Cruzs
impleading of the Capistrano spouses as party-defendants in the
action against the Bank to enjoin the foreclosure of the
mortgage on the subject lot. Cruzs move is congruent with both
his strong desire to protect his interest in the subject lot and the
reality that there was an existing deed of sale in his favor.
Precisely, his interest in the lot is borne out and had arisen from
the deed of sale. As purchaser of the lot, he had to avert the
foreclosure of the mortgage thereon. And to ensure against the
dismissal of the action for failure to join a real party-in-interest,
he had to implead Capistrano in whose name the title to the
subject lot was registered still.
Apart from Capistranos abject failure to overcome the
presumption of regularity and genuineness with which the Deed
of Absolute Sale is impressed as a public document, Capistranos
cause is eviscerated by his own acts in writing before and after
the execution of the deed. Said written acts constitute indelible
recognition of the existence and genuineness of the Deed of
Absolute Sale.
First is the letter-agreement41 dated 23 September 1982 made
and signed by Capistrano in favor of Cruz, which the latter also
signed subsequently, stating that Cruz will, as he did, purchase
the subject lot for P350,000.00 to be paid according to the terms
provided therein.
Second is the Statement of Account42 signed by Capistrano,
which he delivered to Cruz, showing that as of 30 October 1985,
Cruzs balance of the stipulated purchase price consisted of
P19,561.00 as principal and P3,520.98 as interest, or a total of
P23,081.98.
Third is Capistranos Amended Complaint itself which illustrates
his own manifest uncertainty as to the relief he was seeking in
court. He demanded that the Deed of Absolute Sale be nullified
yet he prayed in the same breath for the "rescission" of the
same43 evidently, a self-defeating recognition of the contract.
In asking for "rescission," Capistrano obviously was invoking
Article 1191 of the Civil Code which provides that the "power to
rescind," which really means to resolve or cancel, is implied in
reciprocal obligations "in case one of the obligors should not
comply with what is incumbent upon him." When a party asks
for the resolution or cancellation of a contract it is implied that
he recognizes its existence. A non-existent contract need not be
cancelled.

AGUSTIN, E.P. | 254

These are unmistakable written admissions of Capistrano that he

really intended to sell the subject lot to Cruz and that he
received payments for it from the latter as late as the year 1985.
It is thus a little baffling why in 1988, he decided to disown the
Deed of Absolute Sale. The most plausible explanation for his
sudden change of mind would be his belated realization that he
parted with the subject lot for too small an amount
(P350,000.00), compared to the price pegged by Cruz
(P1,800,000.00) in the sale to Pan Pacific.
Now, to the Marital Consent. The fact that the document
contains a jurat, not an acknowledgment, should not affect its
genuineness or that of the related document of conveyance
itself, the Deed of Absolute Sale. In this instance, a jurat suffices
as the document only embodies the manifestation of the
spouses consent,44 a mere appendage to the main document.
The use of a jurat, instead of an acknowledgement does not
elevate the Marital Consent to the level of a public document but
instead consigns it to the status of a private writing.45 The lack
of acknowledgment, however, does not render a deed invalid.
The necessity of a public document for contracts which transmit
or extinguish real rights over immovable property, as mandated
by Article 1358 of the Civil Code, is only for convenience; it is
not essential for validity or enforceability.46

enjoy full entitlement to the subject lot as it was sold to him by

Cruz who earlier had acquired title thereto absolutely and
unconditionally by virtue of the Deed of Absolute Sale. Otherwise
laid down, Cruz had the right to sell the subject lot to Pan Pacific
in 1988, as he in fact did. Thus, the question of whether or not
Pan Pacific is a purchaser in good faith should be deemed
irrelevant.1avvphil.net
WHEREFORE, the Petition is GRANTED. The Decision dated 4
June 1996 of the Court of Appeals in CA-G.R. CV No. 41112 is
REVERSED and SET ASIDE. Respondent Nicolas Capistrano is
ordered to surrender the owners duplicate certificate of Transfer
of Certificate of Title No. 143599 to the Register of Deeds of
Manila to enable the issuance of a new title over the subject lot
in the name of petitioner Pan Pacific Industrial Sales, Inc. Costs
against respondent Nicolas Capistrano.
SO ORDERED.
DANTE O. TINGA

Associate Justice

From the perspective of the law on evidence, however, the

presumption of regularity does not hold true with respect to the
Marital Consent which is a private writing. It is subject to the
requirement of proof under Section 20, Rule 132 of the Rules of
Court which states:
Section 20. Proof of private document.- Before any private
document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
(a) By anyone who saw the document executed or
written; or
(b) By evidence of the genuineness of the signature
or handwriting of the maker.
Any other private document need only be identified as that
which is claimed to be.
The requirement of proof of the authenticity of the Marital
Consent was adequately met, in this case, through the testimony
of Cruz to the effect that, together with the other witnesses to
the document, he was present when Capistranos wife affixed
her signature thereon before notary public Benedicto.47 Viewed
against this positive declaration, Capistranos negative and selfserving assertions that his wifes signature on the document was
forged because "(i)t is too beautiful" and that his wife could not
have executed the Marital Consent because it was executed on
her natal day and she was somewhere else, crumble and
become unworthy of belief.
That the Marital Consent was executed prior to the Deed of
Absolute Sale also does not indicate that it is phoney. A fair
assumption is that it was executed in anticipation of the Deed of
Absolute Sale which was accomplished a scant six (6) days later.
With respect to whatever balance Cruz may still owe to
Capistrano, the Court believes that this is not a concern of Pan
Pacific as the latter is not a party to the Deed of Absolute Sale
between Capistrano and Cruz. But of course, Pan Pacific should

EVIDENCE

AGUSTIN, E.P. | 255

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 146428

January 19, 2009

HEIRS OF THE DECEASED CARMEN CRUZ-ZAMORA,

Petitioners,
vs.
MULTIWOOD INTERNATIONAL, INC., Respondent.
DECISION
LEONARDO-DE CASTRO, J.:

On April 15, 1996, the RTC rendered a decision in favor of

Zamora. The trial court interpreted the Marketing Agreement as
to include construction contracts and allowed Zamora to claim
the ten percent (10%) commission granted in the said
agreement. In arriving at the decision, the trial court took into
consideration the alleged intention of the contracting parties
purportedly evidenced by Multiwoods contemporaneous and
subsequent acts of making "partial payments" of the commission
on the disputed projects as evidenced by various vouchers
(Exhibits K-2 to K-7) which, however, were not offered in
evidence by either party and marked for exhibit only during the
testimony of defense witness, Adrian Guerrero.5 The dispositive
portion of the said decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
in favor of the plaintiff and against the defendant, as follows:
1. Ordering the defendant (respondent) to pay the
plaintiff (petitioner) the following amounts:

Before us is a petition for review on certiorari of the Court of

Appeals (CA) Decision1 dated October 19, 2000 and Resolution2
dated December 18, 2000 in CA-G.R. CV No. 53451 which
reversed and set aside the decision of the Regional Trial Court
(RTC), National Capital Judicial Region, Makati City, Branch 59,
and denied petitioners motion for reconsideration respectively.

a. P165,941.78 plus legal interest thereon

at the rate of twelve percent (12%) per
annum starting November 18, 1993, the
date when the complaint was filed until the
amount is fully paid;

The facts as culled from the records are as follows:

On November 18, 1993, the late Carmen Cruz-Zamora (Zamora)
filed a Complaint against respondent Multiwood International,
Inc. (Multiwood). The complaint alleged that sometime in 1987,
Zamora signed a Marketing Agreement to act as an agent of
Multiwood. As agent, Zamora claimed that she obtained certain
contracts on behalf of Multiwood and in renumeration for her
services, she was to be paid ten percent (10%) commission for
the said projects. Zamora claimed that Multiwood defaulted in
the payment of her commission for the contracts with Edsa
Shangrila, Makati Shangrila and Diamond Hotel. She was
compelled to file an action for the collection of her commission in
the amount of Two Hundred Fifty Four Thousand Eighty-Nine
Pesos and Fifty Two Centavos (P254,089.52) when her repeated
demands for payment remained unheeded.
In its Answer with Counterclaim, Multiwood asserted that
Zamora was not entitled to receive commissions for the Edsa
Shangrila, Makati Shangrila and Diamond Hotel projects on the
ground that those projects were "construction contracts" while
their Marketing Agreement spoke only of the sale of Multiwood
products. By way of counterclaim, Multiwood claimed, among
others, that Zamora had unliquidated advances in the amount of
Thirty Seven Thousand Three Hundred Ninety-Seven Pesos and
Seventy One Centavos (P37,397.71).3
During pre-trial, the parties entered into a stipulation of facts
and limited the issues to the following:
1. Whether or not the projects indicated in the
agreement are contracts for services (or construction
contracts) and not contracts for the sale of products;
2. Whether or not the defendant is liable to pay the
amount of P254,089.52 and damages;
3. Whether or not the plaintiff may be held liable on
the defendants counterclaim.4

EVIDENCE

b.
P40,000.00
damages;

representing

moral

c. P40,000.00 as and for reasonable

attorneys fees.
2.
Ordering
the
dismissal
of
defendants
(respondents) counterclaim, for lack of merit; and
3. With costs against the defendant (respondent).
SO ORDERED.6
Multiwood appealed to the CA insisting that based on the
Marketing Agreement, Zamoras commissions were due only on
contracts for the sale of its products, and not for construction
contracts. Multiwood argued that the trial court erred in its
interpretation of the Marketing Agreement and ultimately revised
and amended its terms despite the absence of any ambiguity as
to the intent of the parties.
On October 19, 2000, the CA rendered its decision reversing and
setting aside the decision of the RTC. The CA ruled that Zamora
could not validly claim commissions from the Edsa Shangrila,
Makati Shangrila and Diamond Hotel contracts on the basis of
the Marketing Agreement because these contracts were limited
only to the solicitation of the products of prospective foreign or
local buyers of Multiwood, excluding other services offered by
the latter such as construction services. Thus, the CA decided in
this wise:
WHEREFORE, premises considered, the appealed Decision of the
Regional Trial Court of Makati City, Branch 59 in Civil Case No.
93-4292 is hereby REVERSED AND SET ASIDE and a new one
entered DISMISSING the Complaint for lack of merit.
The plaintiff-appellee (petitioner) is also declared LIABLE to pay
the unliquidated advances she obtained from the defendantappellant (respondent) in the amount of Thirty Seven Thousand

AGUSTIN, E.P. | 256

Three Hundred Ninety Seven Pesos and Seventy One Centavos

(P37,397.71) with legal interest at six percent (6%) per annum
computed from August 4, 1994 until fully paid.
No pronouncement as to costs.
SO ORDERED.7

commission therefor as indicia of the parties intention to include

the said solicitation of construction contracts within the coverage
of the Marketing Agreement. These operative acts purportedly
lead to the perfection of a new contract between the parties,
albeit not reduced in writing. Hence, Multiwood is estopped from
denying its obligation as the same would unjustly enrich the
latter at Zamoras expense.
We deny the petition.

Zamoras subsequent motion for reconsideration having been

likewise denied by the CA in the Resolution dated December 18,
2000, she elevated the case to this Court through the instant
petition for review which raises the following arguments:
(1) The Hon. Court of Appeals erred in adjudging that
private respondent is not liable to compensate
petitioner for her services in soliciting construction
contracts on the ground that petitioners counsel
failed to offer in evidence Exhs. K to K-7.
(2) The Hon. Court of Appeals erred in not holding
that under Exhs. B to H, with sub-markings in relation
to Exh. A, private respondent acknowledged or
admitted its liability for a rate of 10% commission to
petitioner for the latters solicitation of construction
contracts.
(3) The Hon. Court of Appeals erred in not holding
that, even if the solicitation of construction contracts
was not covered by the Marketing Agreement (Exh.
A), a new separate contract was deemed perfected
between the parties as evidenced by Exhs. B to H,
with submarkings.
(4) The Hon. Court of Appeals erred in not holding
that private respondent would be unjustly enriched at
the expense of petitioner if the latter is not
compensated for her valuable services.
(5) The Hon. Court of Appeals erred in not affirming
in toto the trial courts Decision.
On October 3, 2002, Zamoras counsel filed a Motion to
Substitute Deceased Petitioner8 informing the Court that Zamora
had passed away on September 30, 2002 and asking that her
heirs be substituted as petitioners pursuant to Section 16, Rule 3
of the Rules of Court. Accordingly, in the Resolution9 dated
January 22, 2003, the Court granted the motion.
Petitioners maintain that the interior construction projects
solicited by Zamora, i.e., the renovation/improvement of the
coffee shop, health clubs, Chinese restaurant and barbeque
pavilions of the Edsa Shangrila; the renovation of the ballroom,
meeting room, lobby and elevator interior of the Makati
Shangrila; and, the renovation of Presidential Suite of the
Diamond Hotel, fell within the scope of the Marketing
Agreement. The identification, "solicitation, finding or
introduction for negotiation of buyers, dealers and customers"
for Multiwoods product as stated in the agreement is an
encompassing term as to include the solicitation of interior
construction projects. Besides the construction projects it
afforded Multiwood the opportunity to sell and supply its
products to the project owner to implement the overall interior
design. Petitioners advert to their interpretation of the text of
the Marketing Agreement, as well as Multwoods subsequent
alleged acquiescence in Zamoras solicitation of the disputed
construction contracts and supposed partial payment of her

EVIDENCE

At the outset, the Court notes that Zamoras cause of action is

anchored solely on the parties Marketing Agreement, the due
execution and authenticity of which are undisputed.
When the terms of the agreement are clear and explicit, such
that they do not justify an attempt to read into them any alleged
intention of the parties, the terms are to be understood literally
just as they appear on the face of the contract. It is only in
instances when the language of a contract is ambiguous or
obscure that courts ought to apply certain established rules of
construction in order to ascertain the supposed intent of the
parties. However, these rules will not be used to make a new
contract for the parties or to rewrite the old one, even if the
contract is inequitable or harsh. They are applied by the court
merely to resolve doubts and ambiguities within the framework
of the agreement.10
Bearing in mind the aforementioned guidelines, we find that the
CA committed no reversible error when it ruled that the
construction projects solicited by Zamora for Multiwood were
outside the coverage of the Marketing Agreement so as preclude
the former from claiming a ten percent (10%) commission. The
plain import of the text of the Marketing Agreement leaves no
doubt as to the true intention of the parties in executing the
Marketing Agreement. The pertinent provisions of the said
Marketing Agreement11 are as follows:
WHEREAS, the principal is engaged in the manufacture and
export of furniture and such other related products using various
types of suitable raw materials;
WHEREAS, the principal needs the services of the agent in
soliciting and finding buyers, customers, or dealers, whether
individuals or entities, for the products of the principal and agent
has represented that she has the capability and competence to
provide the said services;
NOW, THEREFORE, for and in consideration of the foregoing and
of the covenants hereinafter specified, the parties hereto have
agreed as follows:
1. That principal hereby grants the agent the non-exclusive right
to identify, solicit, find or introduce for negotiation, prospective
local and foreign buyers, dealers, or customers for the products
of the principal.
xxx xxx xxx
4. That for the services of the agent under this agreement, the
principal agrees to pay her Ten Percent (10%) of the face value
of the invoice price, covering the letter of credit, or such similar
instrument representing the actual purchase price for the
products sold or shipped by the principal. x x x. (emphasis ours)

AGUSTIN, E.P. | 257

Both the trial court and the CA found that the Marketing
Agreement quoted above does not mention construction
contracts among the contemplated services of Zamora that
would be compensable with a ten percent (10%) commission.
The lower courts, however, differed with respect to the
evidentiary weight that should be accorded to Exhibits K to K-7
which were never formally offered in evidence by any party.
After a consideration of the evidence, we agree with the CA that
the trial court committed an error in interpreting the Marketing
Agreement to include construction contracts based solely on
Exhibits K-2 to K-7 which were allegedly contemporaneous acts
of Multiwood of paying in part Zamoras commissions on
construction contracts. As borne by the records, these exhibits
were only marked as such during the testimony of the defense
witness, Adrian Guerrero, but not offered in evidence by either
party.
Section 34, Rule 132 of the Rules of Court states:
SEC. 34. Offer of evidence. The court shall consider no
evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
The trial courts reliance on Exhibits "K-2" to "K-7" is thus,
misplaced. It has no evidentiary value in this case because it was
not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been
formally offered. The purpose for which the evidence is offered
must be specified. The offer of evidence is necessary because it
is the duty of the court to rest its findings of fact and its
judgment only and strictly upon the evidence offered by the
parties. Unless and until admitted by the court in evidence for
the purpose or purposes for which such document is offered, the
same is merely a scrap of paper barren of probative weight.
Mere identification of documents and the markings thereof as
exhibits do not confer any evidentiary weight on documents
unless formally offered.12
Plainly, the trial court should not have read terms into the
Marketing Agreement that were not expressly in the agreement
itself. The agreement is clear, plain and simple that it leaves no
room for interpretation. It explicitly provides that for the services
of Zamora, as agent under the agreement, Multiwood agreed to
pay her in the amount equivalent to ten percent (10%) of the
face value of the invoice price, covering the letter of credit or
such other instrument representing the actual purchase price for
the products sold or shipped by Multiwood. In other words,
Zamoras commission under the Marketing Agreement was to be
paid only for products sold or supplied by Multiwood and not for
services rendered by the latter. As admitted by Zamora herself
during cross-examination, the Edsa Shangrila, Makati Shangrila
and Diamond Hotel projects were "interior construction"
projects13 and not simply contracts for sale or supply of
Multiwood products.
As mandated by Article 1370 of the Civil Code, if the terms of
the contract are clear and leave no doubt upon the intention of
the contracting parties, the literal meaning of its stipulations
shall control.
Moreover, Section 9, Rule 130 of the Revised Rules of Court is
also in point:
SEC. 9. Evidence of written agreements. When the terms of an
agreement have been reduced in writing, it is considered as
containing all the terms agreed upon and there can be, between

EVIDENCE

the parties and their successors in interest, no evidence of such

terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain, or
add to the terms of the written agreement if he puts in issue in
his pleading:
(a) An intrinsic ambiguity, mistake, or imperfection in
the written agreement;
(b) The failure of the written agreement to express
the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
The "parol evidence rule" forbids any addition to or contradiction
of the terms of a written instrument by testimony or other
evidence purporting to show that, at or before the execution of
the parties written agreement, other or different terms were
agreed upon by the parties, varying the purport of the written
contract. When an agreement has been reduced to writing, the
parties cannot be permitted to adduce evidence to prove alleged
practices which to all purposes would alter the terms of the
written agreement. Whatever is not found in the writing is
understood to have been waived and abandoned.14 None of the
above-cited exceptions finds application to the instant case,
more particularly, the alleged failure of the contract to express
the true intent and agreement of the parties nor did Zamora
raise any of the issues at the proceedings before the trial court.
With more reason, documentary evidence which was not
formally offered cannot be used to modify, explain or add to the
terms of an agreement.
In any event, even assuming purely for the sake of argument
that Exhibits K-2 to K-7 are admissible evidence, they do not
support Zamoras contention that she is entitled to a ten percent
(10%) commission even on construction contracts she has
solicited pursuant to the Marketing Agreement. A perusal of
Exhibits K-2 to K-7 does not clearly show that these commissions
were being paid for construction contracts or services. Moreover,
most of the commissions purportedly paid to Zamora under
Exhibits K-2 to K-7 were computed at a much lower rate of three
percent (3%) and not the ten percent (10%) stipulated in the
Marketing Agreement. We cannot simply accept, as the trial
court did, Zamoras assertion that the lower rate of three percent
(3%) commission was a partial payment of her commissions
under the Marketing Agreement since there is nothing in Exhibits
K-2 to K-7 to indicate that the commissions mentioned therein
were only partial payments. The circumstances that Zamora did
not include Exhibits K-2 to K-7 in her Complaint and that she did
not demand payment of the alleged balance of the commissions
therein from Multiwood further militate against her claim that
these were partial payments of her commission under the
Marketing Agreement subject of the present case.
An examination of even Exhibits B to H which were formally
offered by Zamora do not substantiate her assertion that
Multiwood agreed to pay her a ten percent (10%) commission
on construction contracts whether under the Marketing
Agreement or any other contract. We cannot subscribe to
petitioners view that mere silence or acquiescence of Multiwood

AGUSTIN, E.P. | 258

to Zamoras solicitation of construction contracts is tantamount

to agreement to payment of the ten percent (10%) commission
under the Marketing Agreement. To be sure, Multiwoods
defense is precisely that the issuance of the vouchers and
checks (Exhibits B to H) attached to the complaint are not
authorized under the Marketing Agreement and that there is no
agreement authorizing Zamora to collect ten percent (10%)
commissions on construction contracts. This Court notes that
even Exhibits B to H show a discrepancy in the alleged agreed
rate of commission since Exhibit H mentions a five percent (5%)
commission and not a ten percent (10%) commission.
It is a basic rule in civil cases that the party having the burden of
proof must establish his case by a preponderance of evidence,
which simply means evidence which is of greater weight, or
more convincing than that which is offered in opposition to it.15
However, although the evidence adduced by the plaintiff is
stronger than that presented by the defendant, a judgment
cannot be entered in favor of the former, if his evidence is not
sufficient to sustain his cause of action. The plaintiff must rely
on the strength of his own evidence and not upon the weakness
of the defendants.16 Whether or not Exhibits K to K-7 are
considered or admitted in evidence, the Court finds that Zamora
failed to prove by preponderant evidence her cause of action for
collection of ten percent (10%) commission on her solicitations
of interior construction contracts whether under the Marketing
Agreement or any other agreement with the defendant.
All told, we find no reversible error committed by the CA in
rendering the assailed Decision dated October 19, 2000 and
Resolution dated December 18, 2000.
WHEREFORE, the petition is DENIED. The assailed Decision and
Resolution of the Court of Appeals are AFFIRMED.
Costs against petitioners.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 259

RULE 133: Weight and Sufficiency of Evidence

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M.-RTJ-07-2068
August 7, 2007
(Formerly A.M. OCA IPI No. 03-1854-RTJ)
ERLIND A. ALCUIZAR, complainant,
vs.
JUDGE EMMANUEL C. CARPIO, ATTY. CRISOSTOMO S.J.
UGALI, JR, and MRS. DIVINAGRACIA BARCELONA,
respondents.
RESOLUTION
GARCIA, J.:
Four protagonists, all working in the Regional Trial Court (RTC)
of Davao City, Branch 16, are involved in this administrative case
which started when Court Stenographer Erlind A. Alcuizar filed a
verified Complaint Affidavit1 dated September 2, 2003 against
Presiding Judge Emmanuel C. Carpio, Atty. Crisostomo S. J. Ugali
Jr., Branch Clerk of Court, and Mrs. Divinagracia B. Barcelona,
Clerk III. Complainant Erlind "Neneng" Alcuizar charges them
with different offenses respondent judge for sexual
harassment, while respondents Ugali and Barcelona for
misconduct.
Against respondent judge, complainant, in her complaintaffidavit, alleged, in gist, the following:
1. On the occasion of her birthday on August 29,
2002, while inside the comfort room (CR) washing a
dishware, she was kissed by respondent judge,
despite her earlier protestation for him not to pursue
his intention. The CR is inside the judges chamber.
After the kissing incident, respondent judge slipped a
P500-bill inside her pocket which she later used to
buy food for officemates after respondent judge
refused her offer to return what he insisted was a
gift.
2. Sometime in October 2002, respondent judge
tried to kiss her while she was transcribing notes in
the staff room after office hours. Respondent judge,
who earlier locked the door from the inside, desisted
when she threatened to shout and to throw a stapler
at him. She related the incident to her husband after
she got home.
3. A week later, respondent judge scolded her for
allegedly always being out of the office, with an
embarrassing reminder that the government pays her
salary.
4. In a day in January 2003, respondent judge
entered the staff room where her co-workers were
eating and, there and then, the former asked if she
can go inside the CR so he could kiss her.

EVIDENCE

5. There were instances when respondent judge

would touch her legs and give her a wink.
6. On February 6, 2003, respondent judge again
berated her for always being out. The reproach upset
her and brought her to tears. The following day, she
did not report for work. On February 11, 2003, she
went to the office to type a letter for transfer and to
accomplish an application for a two-month leave.
7. There were times when respondent judge would
place his gun on top of her table which would give
her a scare.
8. The harassment she was subjected to impelled her
to confide and seek solace from co-employees and
other judges and forced her to request transfer of
assignment and to go on leave. She also did talk to
and ask permission from respondent judge to
transfer.
9. On April 11, 2003, she entered respondent
judges chamber to ask for a clearance which was
granted - and permission to transfer which the
respondent judge agreed to act on when he shall
have talked to Atty. Ugali. A week after, she
reiterated her request for transfer; and
10. She received on June 4, 2003 a memorandum in
which respondent judge asked her to report for work
on or before June 9, 2003 or be declared AWOL.
Appended to and forming part of the sworn complaint are letters
complainant wrote to several persons respecting her travails and
her desire to transfer and to go on leave.
In his Comment2 dated November 13, 2003 that he submitted in
compliance with the Courts directive, respondent judge denied
the charge of sexual harassment, particularly with respect to
allegations about his having kissed or about his aborted attempt
to kiss the complainant and making what amounts to sexual
advances. In this regard, respondent judge stated that he
cannot recall being with the complainant alone in his CR. As to a
near-kissing incident after office hours, respondent judge stated
that complainant had never rendered overtime service. And even
as he denied touching her legs on one occasion, respondent
judge went on to explain that the fact that complainants table
was veritably surrounded by those of her co-workers argues
against the suggestion of an indecent behavior going unnoticed.
If, according to respondent judges logic, he subjected the
complainant to sexual harassment, her having attended
thereafter his birthday party, the retirement party of an office
mate and her visits to his chamber on April 3 and 11, 2003
would make no sense.
On the matter of the P500 he gave the complainant on her
birthday, respondent judge offered that it was an office practice
for the presiding judge and branch staff members to contribute
something for the celebration. He denied insinuations of
surreptitious giving, the amount adverted to having been handed
out to the complainant in the presence of the process server for
the purpose of buying food. Respondent judge also downplayed
his having winked at complainant, noting that he winks at all the
members of his staff, regardless of gender, as a greeting
gesture.

AGUSTIN, E.P. | 260

Closing his 12-page comment, respondent judge stated that the

complaint is actually an offshoot of four (4) incidents which bear
on the performance by the complainant of her official duties.
Among the attachments to respondent judges Comment, which
would later be submitted in evidence, is Annex "1,"3 a
photograph taken during his birthday celebration on December
23, 2002.
Against respondent Ugali, the complaint alleged under paragraph
No. 52 thereof, that he is liable for misconduct for "scolding,"
"yelling at" and "calling [the complainant] praning" and "for his

failure to take any action despite [her] report to him about the
sexual harassment committed by [respondent judge]."

With respect to respondent Barcelona, complainant would also

have her administratively adjudged guilty of and penalized for
misconduct for not transmitting to the proper office her
(complainants) application for leave and the daily time records
(DTRs). As would later be clarified, the leave application and the
accompanying DTR covered the month of March 2003.
In their separate comments,4 both respondents Ugali and
Barcelona denied having committed acts that would constitute
misconduct. For his part, respondent Ugali explained, at the
outset, that when complainant reported back for work sometime
in February 2003 expressing the sentiment that she can no
longer stomach respondent judge and wanted a transfer or
detail to another sala, he conveyed, in a voice louder than usual,
the following message to the complainant and those then
present: "If you have problems with the Presiding Judge, you

either talk to him directly or take it up with me, instead of your

going around the different salas and discussing your problem
with them." According to respondent Ugali, on February 24,

2003, he confronted Judge Carpio who denied the nasty rumor

about the complainants gripe against him. Respondent Ugali
would, however, assert that the complainant had never breathed
a word about her being actually kissed by respondent judge,
about the fondling of legs, the stapler incident and the open
display of a gun.
When asked whether she wanted to press charges against the
respondent judge, complainant, so respondent Ugali claims,
replied in the negative, her only wish being that she be
permitted to transfer. Respondent Ugali also denied calling her
"praning."5 He stated that what he, in context, told the
complainant was: "Ang hirap sa iyo, hindi ka lang inconsiderate
at selfish, nagiging praning ka na." Respondent Ugali then
proceeded to explain that his outburst was in reaction to
complainants statements: (a) that her co-employees should not
complain if she goes on leave since it is her salary anyway that
would be affected, and (b) that she was complaining that he
(Ugali), as her boss, was no longer minding her and was saying
things indirectly.6
On the other hand, respondent Barcelonas curt answer to
allegations that she did not transmit the complainants leave
application and DTRs was: She presented the complainants
leave application for April 2003 to respondent Ugali for the
latters signature, only to be instructed to inform the
complainant about the presiding judge being the proper signing
authority since she had been absent since February 7, 2003; and
that being the case, her application should be refiled
accompanied by requisite clearances;7 that when complainant
refiled her application for leave for April 2003 even without the
needed clearances, she transmitted the same to the Supreme
Court Leave Section8 after the same had been duly signed.

EVIDENCE

As events would later develop, respondent Barcelonas reference

to an April 2003 leave was not exactly responsive to the
complainants lament which contemplated the non-transmittal of
the March 2003 application for leave.
Per an en banc Resolution9 of March 16, 2004, the Court
resolved to refer the case to the Court of Appeals (CA) for
investigation, report and recommendation. The CA eventually
designated Associate Justice Teresita Dy-Liacco Flores as
Executive Justice Investigator.
By agreement of the parties, the affidavit of each affiant,
including that of each of the protagonists, was considered
his/her direct testimony, albeit clarifications on certain points
were allowed.
Following a marathon hearing, the Investigating Justice
submitted her Report dated June 2, 2006. In it, she
recommended that respondent judge be adjudged guilty of
sexual harassment under of Republic Act No. 7877,10 Section 3
of which defines work- related sexual harassment in the
following wise:
Section 3. xxx Work related sexual harassment is
committed by an employer, employee, manager,
supervisor, agent of the employer who, having
authority, influence, or moral ascendancy over
another in a work environment, demands, requests
or otherwise requires any sexual favor from the other,
regardless of whether the demand, request or
requirement for submission is accepted by the subject
of said Act.
(a) In a work-related or employment
environment,
sexual
harassment
is
committed when:
1. The sexual favor is made as a
condition in the hiring or the
employment or in granting
said individual favorable
privileges; or the refusal to
grant the sexual favor results in
limiting,
segregating
or
classifying the employee which
in any way would discriminate,
deprive or diminish employment
opportunities
or
otherwise
adversely affect said employee;
xxx xxx xxx
2. The above acts would result
in an intimidating, hostile, or
offensive environment for the
employee.
The Investigating Justice predicated her recommendation on the
strength of the following main findings and observations:
The testimony of [complainant] Alcuizar against the
[respondent] Judge is credible. She was consistent
and unambiguous in her claim that on several
incidents while in the workplace, the [respondent]
judge, who is her superior, sought her permission to
kiss her which she refused and at other times directed

AGUSTIN, E.P. | 261

her to go to the comfort room so that he could kiss

her. While Alcuizars testimony is uncorroborated on
these incidents but (sic) her narration thereof in a
direct and unhesitating manner convinces one that
she is sincere in her revelations. Her demeanor in the
witness stand leaves no doubt that she was speaking
the truth. She was spontaneous and frank.
xxx

xxx

xxx

From Alcuizars answers, one can feel the directness

and spontaneity with which they were uttered. And
that can only spring from the lips of one who has
gone through an offensive experience.
xxx

xxx

xxx

The [respondent] Judges soliciting a favor from

Alcuizar that he be allowed to kiss her and at other
times directing Alcuizar to go to the comfort room so
he can kiss her are requests made in a workplace for
sexual favor from his underling. It made the
workplace
intimidating,
hostile
or
offensive
environment for his employee, Alcuizar.
Considering that in administrative proceedings only
substantial evidence is required to make a finding of
guilt, such quantum has even been exceeded in this
case. The evidence proves the commission of sexual
harassment by the [respondent] Judge. (Words in
brackets added)
The Report also recommended the suspension from office of
respondent judge for three (3) months for the offense.
The Court is unable to agree with the recommendation and the
premises and findings holding it together.
We start off with the matter of proof. In administrative or
disciplinary proceedings, the burden of proving the allegations in
the complaint rests on the complainant.11 While substantial
evidence would ordinarily suffice to support a finding of guilt, the
rule is a bit different where the proceedings involve judges
charged with grave offense. Administrative proceedings against
judges are, by nature, highly penal in character and are to be
governed by the rules applicable to criminal cases. The quantum
of proof required to support the administrative charges or to
establish the ground/s for the removal of a judicial officer should
thus be more than substantial; they must be proven beyond
reasonable doubt.12 To borrow from Reyes v. Mangino:13
Inasmuch as what is imputed against respondent
Judge connotes a misconduct so grave that, if proven,
would entail dismissal from the bench, the quantum
of proof required should be more than substantial.
Going over the testimonial and documentary evidence thus
adduced during the investigation, the proof-beyond-reasonabledoubt threshold required under the premises has not been
hurdled. As it were, circumstances obtained and/or credible
evidence presented tended to cast a heavy cloud on
complainants credibility and, necessarily, her case. For instance,
Alfredo Tayabas, a court aide, contradicting complainants
account of washing food containers ("pyrex") inside the CR,
testified that "[O]n August 29, 2002, after the [birthday] lunch,

[he] and Mr. Michael Monje cleared the table , brought the

EVIDENCE

plates and utensils used to the comfort room and washed them
all inside."14 And then there is the complainants allegation that

on a day in October 2002, while working past the regular

working hours, respondent judge attempted to kiss her. This
incident could not have happened as the complainant narrated
for the simple reason that not once did she render overtime
service for the month of October 2002. The entries in her DTR15
for the period which show her being out of the office by 5 p.m.
of every working day negate the idea of overtime work.
Complainant also asserted that there were instances when
respondent judge touched her legs while she was working at her
computer16 and placed his gun on top of her table.17 This
assertions are hardly credible. Complainants working desk was
inside the staff room, which the Investigating Justice describes
as "quite small for the number of personnel it houses

[where] the distance of tables from an occupants chair to the

next table provides only a passage for a normal sized person."18

It is thus unthinkable that respondent judge would be so callous

and boorish as to perform the highly disgraceful acts thus
ascribed to him by the complainant in the staff room during
office hours in full view of branch employees. Respondent Ugali,
among other court personnel,19 swears to not having observed
respondent judge putting his gun on top of complainants table,
let alone touching her legs during all the years he (Ugali) was
seated beside her.20
If respondent judge had, indeed, made overt sexual overtures
towards, and blatantly demanded a kiss from, the complainant
within court premises, good sense would dictate that the matter
be immediately reported to the proper authorities. Per the
complainants own account, respondent Judge allegedly made
his indecent advances from August 2002 to January 2003.
However, she decided to make a formal complaint with this
Court only in September 2003, albeit she appeared to have
sought counsel from her office mates, among other co-workers
in the judiciary. Reckoned from the alleged first incident,
complainant herself testified that it took her "more than thirteen
(13) months" to file this case.21 This seeming lack of urgency on
the part of the complainant in taking concrete administrative
action against a wayward judge bears heavily on her case.
The Court has certainly taken stock of the fact that even after
the alleged "sexual harassment" incidents transpired,
complainant still dared to repair, in several instances, to
respondent Judges chamber all by her lonesome self when the
natural thing to do is to avoid occasions likely to further
exacerbate an already difficult situation. What is more,
complainant, by her own admission22 even attended the birthday
party of respondent judge in his residence and, judging from
photographs23 of smiling, clapping and swinging court staff
personnel, complainant definitely appeared to be having much
fun. To be sure, complainant is not exactly a picture of one
recently sexually harassed by her offending host.
With the view we thus take of the case, complainant has failed
to prove her charge against the respondent judge with the
quantum of proof required under the premises. Given this
perspective, the dismissal of the complaint as against
respondent judge for insufficiency of evidence is indicated. The
Court, however, stresses that this ruling does not necessarily
reflect on the bona fides of the filing of the complainant, let
alone what complainant perceives to be the righteousness of her
grievances. However, the facts of the case and applicable
jurisprudence leave no room for another kind of disposition.
The misconduct charge against respondent Ugali is, as
recommended by the Investigating Justice, also dismissed. To be

AGUSTIN, E.P. | 262

sure, respondent Ugali has adequately addressed and very well

acquitted himself of the allegations against him. His evidence
showed that, upon being informed of complainants beef against
respondent Judge Carpio, he inquired what the complainant
exactly wanted (she just wanted a transfer, at that time24),
confessing at the same time that he cannot plausibly order
respondent Judge Carpios dismissal from the service.
To be sure, respondent Ugali was in an awkward position. For
here was an underling pouring out her concerns and needing the
kind of help which could undermine the delivery of public service
and offend a superior. Yet, he tried to do something about a
delicate situation by confronting the respondent judge about
what had been reported to him (Ugali).
And with respect to the complainants request for transfer,
respondent Ugali could not be held liable for not favorably acting
thereon, given that her absences had, as aptly observed by the
Investigating Justice, already brought havoc to the office in
general and to Acuizars co-employees, in particular, since they
have to perform the tasks that pertain to the complainant in
whole or in part.
Vis--vis the scolding and yelling incidents adverted to by the
complainant, the Court, like the Investigating Justice, finds them
of little moment to merit belaboring. Criticisms and scoldings
from a superior, particularly if deserved, or being yelled at
occasionally happen in any organization and are not necessarily
counter-productive. And Clerks of Courts, like any mortal, have
their own idiosyncrasies and are subject to human limitations
which everyone is heir to. Well-intentioned outbursts cannot,
without more, plausibly be the subject of an administrative
complaint. Nonetheless, it may not be amiss to state that
humility, patience, self-restraint and civility are virtues usually
credited not to bullies and wimps, but to the strong in character.

As we see it, the loss could have not been intentional or the
product of willful behavior so as to support a charge of
misconduct. By complainants own account, before she filed this
administrative complaint, no bad blood existed between her and
respondent Barcelona,27 who even stood as a sponsor in her
(complainants) wedding.28 It would thus be difficult to adjudge
respondent Barcelona guilty of misconduct for what appears to
be a clear case of carelessness. Considering, however, the loss
also of the April and May 2003 DTRs of complainant which
impelled her, upon respondent Barcelonas urging, to refile new
ones, the Court finds respondent Barcelona guilty of simple
negligence for which she ought to be reprimanded, as the
Investigating Justice recommends.
IN VIEW WHEREOF, the Court rules as follows:
(a) The complaint as against respondent Judge
Emmanuel C. Carpio for sexual harassment is
DISMISSED for insufficiency of evidence. He is,
however, admonished, to avoid any act or conduct
that would in any way diminish public trust and
confidence in the courts and the individuals
representing the institution.
(b) The complaint insofar as it charges Atty.
Crisostomo S.J. Umali for misconduct is also
DISMISSED for insufficiency of evidence.
(c) Mrs. Divinagracia B. Barcelona is adjudged guilty
of SIMPLE NEGLIGENCE and is hereby
REPRIMANDED, and warned to be more diligent
and careful in the performance of her assigned duties
and functions
SO ORDERED.

With respect to the charge against respondent Barcelona, the

Court finds that complainant submitted her March 2003 DTR to
Barcelona, the latters denial notwithstanding. Respondent
Barcelonas initials on the DTR in question which she admitted to
be her own prove the fact of submission. Her failure to transmit
the complainants March 2003 DTR to the Leave Section of the
Court does not, however, translate to misconduct, a term
denoting an improper conduct, or a transgression of some
established and definite rule of action, a dereliction of duty,
willful in character, that implies wrongful intent.25 In the strict
civil service law viewpoint, misconduct and negligence are
different concepts, albeit gross negligence by a public officer
may constitute misconduct.26

Puno, Chief Justice, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna,Tinga, Chico-Nazario, Velasco, Jr., Nachura, JJ., concur.

As reported by the Investigating Justice, accomplished DTR

forms, once submitted by the personnel concerned, pass the
area of two employees, i.e., Ms. Barcelona, who puts the DTRs
in the folder, and Atty. Ugali who signs them. Once signed, the
DTRs are returned to Ms. Barcelona who keeps a copy, gives
one to the accomplishing employee, and sends two copies
(original and duplicate) to the Leave Division of the Court.
Clearly, when Atty. Ugali returned the signed bunch of DTRs to
respondent Barcelona, complainants March 2003 DTR was still in
the folder. That a copy of the March 2003 DTR found its way
back to the complainant can only mean that respondent
Barcelona received it and sorted the copies. How it failed to be
included in the bunch of DTRs said respondent transmitted to
the Court remains unexplained. Did respondent Barcelona lose it
unintentionally? Or did she arrange the loss?

EVIDENCE

AGUSTIN, E.P. | 263

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
A.M. No. RTJ-01-1650
September 29, 2009
(Formerly OCA IPI No. 01-1195-RTJ)
MARGIE CORPUS MACIAS, Complainant,
vs.
MARIANO JOAQUIN S. MACIAS, Presiding Judge, Branch
28, Regional Trial Court, Liloy, Zamboanga del Norte,
Respondent.
DECISION
NACHURA, J.:
This involves an administrative complaint1 filed by complainant
Margie C. Macias charging her husband, Mariano Joaquin S.
Macias (Judge Macias), with immorality and conduct prejudicial
to the best interest of the service. The complaint was filed on
March 7, 2001, when respondent was still sitting as the presiding
judge of Branch 28 of the Regional Trial Court (RTC) of Liloy,
Zamboanga del Norte.

(e) Respondent and his paramour had often met at

the house of Zoosima (sic) Ojano Carangan, aunt of
respondents paramour, [in] Taway, Ipil, Zamboanga
del Sur, and the people of Taway know that
respondent judge, who usually arrives in his car, has
been shamelessly and immorally carrying on an illicit
affair with said Judilyn Seranillos. Some inquisitive
people usually go out of their houses upon seeing
respondents car parked at the house of the aunt of
respondents young mistress, and these barrio folks
often watch respondent come and go; [and]
(f) Respondent has one or two other women lovers
whom he shamelessly cavorts even in the presence of
court personnel.2
Complainant attached the affidavits of Shem Tabotabo,3 Zacarias
Cordova,4 Zosima Carangan,5 Danny Layogue and Consolacion S.
Layogue,6 her son Marictibert Corpus Macias,7 Ruben Perater,8
Roel Mutia,9 and Aniceto Zozobrado.10 However, five of them
Tabotabo,11 Cordova,12 Carangan,13 Danny Layogue,14 and
Marictibert Macias15 later recanted their affidavits.

Complainant alleged that sometime in 1998, respondent

engaged in an illicit liaison and immoral relationship with a
certain Judilyn Seranillos (Seranillos), single and in her early 20s.
The relationship continued until the time of the filing of the
complaint. Complainant enumerated some of the abuses
committed by respondent, to wit:

On August 20, 2001, this Court issued a Resolution16 referring

the complaint to Court of Appeals Associate Justice Eriberto U.
Rosario, Jr. for investigation, report and recommendation. On
October 29, 2001, Justice Rosario issued an Order17 setting the
initial hearing on November 27, 28 and 29, 2001 and requiring
the parties to submit a list of their respective witnesses and
documentary evidence. The hearing was, however, reset to
January 28, 29, 30, and 31, 2002 upon motion of complainant.
On January 28, 2002, the parties informed the Investigating
Justice that they were exerting all efforts for a possible
reconciliation. Upon motion by both parties, the hearing was
again reset to March 11, 12, 13, and 14, 2002.

(a) [Respondent] has been using court personnel,

namely, Emmanuel "Botiong" Tenefrancia, process
server, as constant escort of his paramour in going to
their appointed trysts or in escorting back said woman
to the place where she is staying, and as errand boy
seeing to their needs when respondent and his
mistress are together;

On March 11, 2002, the parties again informed the Investigating

Justice of their desire to confer in a last effort to settle. The
request was again granted with an order that both parties
should be ready the following day if no settlement was reached.
The following day, March 12, 2002, the scheduled hearing
proceeded after the parties failed to reach any amicable
settlement.

(b) Respondent has been using another court

employee in the person of Camilo Bandivas, court
sheriff, as contact person to his young lover and in
summoning and bringing complainants witnesses to
respondent to be harassed and threatened;

From a list of seven (7) witnesses, complainant manifested that

only four (4) witnesses shall be presented. The first witness,
Roel Mutia, testified that he was hired by complainants son,
Marquinjo Macias, to tail Judge Macias after suspecting that his
father was having an illicit affair. In summary, Mutia testified
that he saw Judge Macias and Seranillos enter a house in
Dipolog City on the afternoon of October 17, 1999, and that
both dined and spent the night there together inside one
bedroom.18 He said that he accompanied Marquinjo and
complainant the next day to the said house and that he saw
complainant pull Seranillos outside the house creating a
commotion within the neighborhood.19 On cross-examination,
Mutia admitted that he was not sure if Seranillos did spend the
night inside the said house, or whether she left that night and
just returned the following morning. Counsel for respondent also
pointed to Mutia that the spot where he positioned himself,
while observing Judge Macias, was blocked by leaves and tall
trees.20

(c) Said Judilyn Seranillos, respondents lover, has

been brought many times by respondent to his court
in Liloy, Zamboanga del Norte, thereby scandalizing
court personnel and lawyers, who sometimes must
wait for the session to start because respondent and
his mistress are not yet through with each other; That
the scandalous relations of respondent with his
mistress is an open secret among lawyers, court
personnel and litigants [in] Liloy, Zamboanga del
Norte;
(d) Respondent has not been calendaring (sic) cases
nor holding court sessions nor court hearings on
Mondays and Fridays so that he can have an
extended date with his paramour, to the great
prejudice of public service;

EVIDENCE

The next witness for complainant was Aniceto Zozobrado. He

testified that he was hired by Seranillos to drive a motorcycle
which, according to her, was a gift from Judge Macias. He said
that he saw Judge Macias visit Seranillos on three (3) occasions;
that he ran errands for both Judge Macias and Seranillos; and

AGUSTIN, E.P. | 264

that he was slapped once by Judge Macias for allegedly peeping

at Seranillos.21 On cross-examination, Zozobrado admitted that
he was not really sure if the motorcycle he saw was actually
owned by Seranillos, and that his statement was based merely
on presumption.22 He also admitted that he had been residing
with complainants counsel since the date he executed his
affidavit against Judge Macias.23
The third witness, Engracio Dialo, Jr., was not allowed to testify
after respondents counsel objected because the intended
testimony would cover an event that took place after the filing of
the complaint, and Dialos affidavit narrated matters that were
not covered by the allegations in the complaint.24 Complainant
manifested her intention to file a motion to amend the
complaint.25 The Investigating Justice ordered the direct
examination of the fourth witness, complainant Margie Macias,
without prejudice to her presenting Dialo after the motion to
amend the complaint shall have been resolved. Complainant,
however, refused, saying that she would testify only after Dialo
had testified.26 The Investigating Justice warned complainant
that her refusal to testify shall be taken as a waiver of her right
to present further witnesses and evidence.27 Despite the
warning, complainant refused to proceed with her direct
testimony. The Investigating Justice ordered complainant to rest
her case, but she again refused.
The witness for respondent was Judge Macias himself. He
denied the allegations of Mutia and Zozobrado. He said that
complainant also filed a complaint for concubinage against him,
but the same was dismissed by the Regional State Prosecutor for
lack of sufficient evidence. He believed that complainants
accusations were brought about by her psychiatric condition
characterized as severe paranoia.28
On April 25, 2002, the Investigating Justice submitted his Report
and Recommendation29 to this Court. He recommended the
dismissal of the complaint against Judge Macias. The
Investigating Justice reasoned that complainant failed to prove
beyond reasonable doubt that respondent committed acts of
immorality, or that his conduct was prejudicial to the best
interest of the service. The Investigating Justice, however,
recommended that Judge Macias be reprimanded for failing to
exercise great care and circumspection in his actions.30
The case now comes before this Court for final resolution.
There are two basic questions that must be resolved. First,
considering the finding of the Investigating Justice, we ask: is it
really necessary that administrative complaints against members
of the judiciary be disposed of only after adducing evidence that
will prove guilt beyond reasonable doubt? And second, do the
acts complained of warrant the imposition of disciplinary
sanction on respondent judge?
I.
In several cases,31 this Court has ruled that if what is imputed to
a respondent judge connotes a misconduct that, if proven,
would result in dismissal from the bench, then the quantum of
proof necessary to support the administrative charges or to
establish grounds for the removal of a judicial officer should be
more than substantial.
The first case involving an administrative complaint filed against
a judge in this jurisdiction was decided in 1922 in In re
Impeachment of Horrilleno.32 There, Justice Malcolm explained:

EVIDENCE

The procedure for the impeachment of judges of first instance

has heretofore not been well defined. The Supreme Court has
not yet adopted rules of procedure, as it is authorized to do by
law. In practice, it is usual for the court to require that charges
made against a judge of first instance shall be presented in due
form and sworn to; thereafter, to give the respondent judge an
opportunity to answer; thereafter, if the explanation of the
respondent be deemed satisfactory, to file (sic) the charges
without further annoyance for the judge; while if the charges
establish a prima facie case, they are referred to the AttorneyGeneral who acts for the court in conducting an inquiry into the
conduct of the respondent judge. On the conclusion of the
Attorney-Generals investigation, a hearing is had before the
court en banc and it sits in judgment to determine if sufficient
cause exists involving the serious misconduct or inefficiency of
the respondent judge as warrants the court in recommending his
removal to the Governor-General.
Impeachment proceedings before courts have been said, in
other jurisdictions, to be in their nature highly penal in character
and to be governed by the rules of law applicable to criminal
cases. The charges must, therefore, be proved beyond a
reasonable doubt.33
With Horilleno, it became necessary for every complainant to
prove guilt beyond reasonable doubt despite the fact that the
case will only involve an administrative, and not a criminal,
complaint. The reason is explained, albeit scarcely, in Alcuizar v.
Carpio:34
While substantial evidence would ordinarily suffice to support a
finding of guilt, the rule is a bit different where the proceedings
involve judges charged with grave offense. Administrative
proceedings against judges are, by nature, highly penal in
character and are to be governed by the rules applicable to
criminal cases.351avvphi1
In more recent rulings, however, the Court applied substantial
evidence as the normative quantum of proof necessary in
resolving administrative complaints against judges. In order to
diffuse confusion, a clarification has to be made. First, the
pronouncements in Horilleno and Alcuizar may be said to have
been superseded by the Courts recent rulings in Gutierrez v.
Belen,36 Reyes v. Paderanga,37 and Naval v. Panday.38
Second, members of the judiciary are not a class of their own,
sui generis, in the field of public service as to require a higher
degree of proof for the administrative cases filed against them
other than, perhaps, the fact that because of the nature of the
responsibility judges have, they are required to live up to a
higher standard of integrity, probity and morality.
When we dismiss a public officer or employee from his position
or office for the commission of a grave offense in connection
with his office, we merely require that the complainant prove
substantial evidence. When we disbar a disgraceful lawyer, we
require that complainant merely prove a clear preponderance of
evidence to establish liability.39 There appears no compelling
reason to require a higher degree of proof when we deal with
cases filed against judges.
Judges play a vital role in the dispensation of justice. In this
jurisdiction, the integrity demanded of a judge does not
commence only when he dons the habiliments of a magistrate or
ends when he sheds off his judicial robe. The nature of the
position requires nothing less than a 24-hour daily obeisance to
this mandate of integrity. Any judge who cannot live up to this

AGUSTIN, E.P. | 265

exacting requirement has no business sitting on the bench.

Considering the proliferation of complaints of abuses and
immorality committed by judges, it is only proper that the Court
be ever vigilant in requiring impeccable conduct from the
members of its bench.
II.
However, in this case, we are not convinced that complainant
was able to prove, by substantial evidence, that respondent
committed the acts complained of. Basic is the rule that in
administrative proceedings, complainant bears the onus of
establishing the averments of her complaint.40 If complainant
fails to discharge this burden, respondent cannot be held liable
for the charge.41
Under Sections 8 and 11 of Rule 140 of the Rules of Court, a
judge found guilty of immorality can be dismissed from the
service, if still in the active service, or may forfeit all or part of
his retirement benefits, if already retired, and disqualified from
reinstatement or appointment to any public office including
government-owned or controlled corporations.42 We have
already ruled that if a judge is to be disciplined for a grave
offense, the evidence against him should be competent and
derived from direct knowledge.43 This quantum of evidence,
complainant failed to satisfy.
The testimonies of Mutia and Zozobrado are specious and
insufficient to convincingly prove that respondent committed
disreputable conduct. This considered, complainant should not
have refused to testify during the hearing. More than anyone
else, it was complainant who had a direct interest in making sure
that the evidence adduced met the necessary burden of proof,
considering that the allegations in her complaint involved
charges that cannot be lightly dealt with. She should have been
more zealous in prosecuting her complaint.
Nevertheless, we agree with the findings of the Investigating
Justice that although the charges of immorality and conduct
prejudicial to the best interest of the service were not
satisfactorily proven by complainant, respondent cannot be
completely exonerated.44 Mutias testimony that he saw Judge
Macias having dinner with Seranillos and entering a bedroom
with her may not satisfactorily prove the charge of immorality,
but this act certainly suggested an appearance of impropriety,
Judge Macias being a married man. Such behavior undeniably
constituted unbecoming conduct, a light offense punishable by a
fine not less than P1,000.00 but not more than P10,000.00.45 In
light of the circumstances affecting not only the reputation of
Judge Macias himself but the image and reputation of the whole
judiciary as well, we find it reasonable to impose upon him the
maximum fine of P10,000.00.
WHEREFORE, premises considered, the administrative complaint
for immorality and conduct prejudicial to the best interest of the
service against respondent Judge Mariano Joaquin S. Macias of
RTC, Branch 28, of Liloy, Zamboanga del Norte is DISMISSED for
insufficiency of evidence. However, respondent is held
administratively liable for UNBECOMING CONDUCT and FINED in
the amount of P10,000.00 to be deducted from his retirement
benefits.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 266

Republic of the Philippines

SUPREME COURT

entered said lot and built thereon the Habagat Grill in December,
1993, DMC filed on March 28, 1994 a Complaint for Forcible
Entry against Habagat Grill and/or Louie Biraogo. The Complaint
was docketed as Civil Case No. 1233-D-94 in the Municipal Trial
Court in Cities, Branch 4, in Davao City. The Complaint alleged
that as owner DMC possessed the lot in question from June 11,
1981 until December 1, 1993; that on that day, December 1,
1993, Louie Biraogo, by means of strategy and stealth,
unlawfully entered into the lot in question and constructed the
Habagat Grill thereon, thus illegally depriving DMC of the
possession of said lot since then up to the present; that the
reasonable rental value of said lot is P10,000.00 a month.

THIRD DIVISION
G.R. No. 155110. March 31, 2005
HABAGAT GRILL Through LOUIE BIRAOGO,
Proprietor/Manager, Petitioners,
vs.
DMC-URBAN PROPERTY DEVELOPER, INC., respondent.
DECISION
PANGANIBAN, J.:
Entitlement to physical or material possession of the premises is
the issue in an ejectment suit. The two forms of ejectment suits
-- forcible entry and unlawful detainer -- may be distinguished
from each other mainly by the fact that in forcible entry, the
plaintiffs must prove that they were in prior possession of the
premises until they were deprived thereof by the defendants; in
unlawful detainer, the plaintiffs need not have been in prior
physical possession.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of
Court, challenging the April 12, 2002 Decision2 and the August
19, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP
No. 53524. The assailed Decision disposed as follows:
"WHEREFORE, finding merit in the petition, the Court
REVERSES the appealed Decision and renders judgment:
1. Commanding [Petitioner] Louie Biraogo and all persons acting
for and in his behalf or by his authority to remove the Habagat
Grill and all improvements he has introduced into the lot in
question and to vacate said lot; and
2. Ordering said [petitioner] to pay the [respondent] P10,000.00
monthly compensation for the occupation of the land in question
until the possession from December 1, 1993 of said property
shall have been completely restored to the [respondent]; and
3. Ordering [petitioner] to pay [respondent] P10,000.00 as
attorneys fees."4
The assailed Resolution
Reconsideration.

denied

petitioners

Motion

for

The Facts
The antecedents were ably summarized by the CA as follows:
"On June 11, 1981, David M. Consunji, Inc. acquired and
became the owner of a residential lot situated in Matina, Davao
City and covered by TCT No. T-82338. This lot shall henceforth
be called the lot in question. On June 13, 1981, David M.
Consunji, Inc. transferred said lot to its sister company, the DMC
Urban Property Developers, Inc. (DMC) in whose favor TCT No.
T-279042 was issued. Alleging that Louie Biraogo forcibly

EVIDENCE

"Louie Biraogo in his Answer denied illegally entering the lot in

question. He averred that Habagat Grill was built in 1992 inside
Municipal Reservation No. 1050 (Presidential Proclamation No.
20) and so DMC has no cause of action against him. Since one of
the vital issues in the case was the location of Habagat Grill, the
Municipal Trial Court in Cities constituted a team composed of
three members, one a Geodetic Engineer representing the DMC,
another Geodetic Engineer representing Biraogo and the third
from the DENR which was tasked with the duty of determining
where precisely was Habagat Grill located, on the lot in question
or on Municipal Reservation No. 1050. Biraogo was directed by
the court to furnish the team with a copy of Municipal
Reservation No. 20. Biraogo never complied. Worse, his
designated Geodetic Engineer Panfilo Jayme never took oath as
such and did not participate in the Relocation survey. The ones
who conducted the survey were Engr. Edmindo Dida of the
DENR and Engr. Jose Cordero, DMCs representative. After
conducting the relocation survey on March 30, 1998, engineers
Dida and Cordero submitted their report to the Court specifically
stating that the Habagat Grill Restaurant was occupying 934
square meters of the lot in question.
"After necessary proceedings, the Municipal Trial Court in Cities
rendered a Decision on August 6, 1998 dismissing the case on
the ground of lack of jurisdiction and lack of cause of action.
DMC appealed from said Decision to the Regional Trial Court and
the same was docketed in Branch 12, in Davao City as Civil Case
No. x x x 26,860.98. On February 16, 1999, said court rendered
judgment affirming the appealed Decision. A Motion for
Reconsideration was filed but was denied in the courts Order
dated April 21, 1999."5
Consequently, respondent interposed an appeal to the CA.
Ruling of the Court of Appeals
Granting respondents appeal, the Court of Appeals ruled that
the court of origin had jurisdiction over the Complaint for
Forcible Entry.6 The CA gave greater weight to the testimony of
respondents real property manager, Bienamer Garcia, that
Habagat Grill had been built on December 1, 1993.7 The
appellate court opined that his testimony was credible, because
he had personal knowledge of the facts he had testified to -- it
was his task to know such matters. On the other hand, it was
not clear in what capacity petitioners witness, Samuel Ruiz,
came to know of the facts he had testified to.8 The CA further
held that the minutes of the Urban Planning and Economic
Development hearings -- submitted by petitioner to prove the
construction of Habagat Grill in 1992 -- were immaterial, as
these referred to another establishment.9
The CA faulted petitioner for not presenting any other
documentary evidence to establish the date of Habagat Grills
construction.10 It added that the court of origin had improperly
adjudged the subject property as part of the public domain. The

AGUSTIN, E.P. | 267

appellate court explained that the lower court could take

cognizance of Presidential Proclamation No. 20, but not of the
situational relation between the property covered by the
Proclamation and the land in question. The CA further criticized
petitioner for not presenting any evidence to show the basis of
the latters alleged authority to build Habagat Grill on the
property.11
Hence, this Petition.12
The Issues
In its Memorandum, petitioner raises the following issues for our
consideration:
"1. That, with due respect, the Honorable Court of Appeals erred
in not finding that the Honorable Court of First Level has no
jurisdiction over this case as petitioners possession and
occupation of the lot where Habagat Grill was constructed on the
subject premises was yet in 1992 or for more than one (1) year
prior to the filing of this case on April 7, 1994 and that
respondents predecessor (David M. Consunji, Inc.) had not been
in prior and physical possession of the subject premises, as a
matter of fact, it failed to allege the same in its Complaint in this
case; and
"2. That, with due respect, the Honorable Court of Appeals erred
in not finding that the Complaint of respondents predecessor
(David M. Consunji, Inc.) in this case failed to state a valid cause
of action as the lot referred to therein is not particularly
described and is different from the lot on which the Habagat Grill
was constructed."13

SECTION 1. Who may institute proceedings, and when.

Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action in the
proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person
or persons claiming under them, for the restitution of such
possession, together with damages and costs.
In the present case, the Complaint filed before the trial court on
March 28, 1994, stated:
"2. That [respondent] had been in lawful and peaceful
possession of a residential lot at Tulip Drive, Ecoland and
Subdivision covered by TCT T-82338 of the Registry of Deeds of
Davao City being owner thereof, since June 11, 1981, until the
day and incident in the following paragraph hereof.
"3. That on or about December 1, 1993, [petitioner] by means of
strategy and stealth, unlawfully entered and occupied a portion
of said residential lot and constructed what is now known as the
Habagat Grill, thereby illegally depriving [respondent] of the
possession of the premises."16

Simplified, the issues are (1) whether the MTC had jurisdiction
over the case, and (2) whether respondent alleged a sufficient
cause of action in its Complaint.

Notably, petitioner alleged (1) prior possession, (2) deprivation

thereof by strategy and stealth, and (3) the date such unlawful
deprivation started, which was less than one year from the filing
of the Complaint. Considering the presence in the Complaint of
all the necessary allegations,17 the trial court evidently acquired
jurisdiction over the subject matter of the case.

This Courts Ruling

Date of Entry

The Petition has no merit.

Petitioner further contends that, as determined by the court of

origin and the regional trial court, respondent has not adduced
preponderance of evidence to prove that this case was filed
within the one-year prescriptive period.18 Petitioner presented
the testimony of a certain Samuel Ruiz and offered the minutes
of the hearings conducted by the Urban Planning and Economic
Development (UPED) to prove that the construction of the
Habagat Grill began in 1992.19

First Issue:

Jurisdiction
Petitioner argues that the lower court did not acquire jurisdiction
over the case, because mere allegation of ownership did not, by
itself, show that respondent had prior possession of the
property.14
We disagree. Jurisdiction in ejectment cases is determined by
the allegations pleaded in the complaint.15 As long as these
allegations demonstrate a cause of action either for forcible
entry or for unlawful detainer, the court acquires jurisdiction
over the subject matter. This principle holds, even if the facts
proved during the trial do not support the cause of action thus
alleged, in which instance the court -- after acquiring jurisdiction
-- may resolve to dismiss the action for insufficiency of evidence.
The necessary allegations in a Complaint for ejectment are set
forth in Section 1 of Rule 70 of the Rules of Court, which reads
thus:

EVIDENCE

Respondent counters that the CA properly relied on the

testimony of the formers real property manager, Bienamer
Garcia, as he had personal knowledge of the facts.20 On the
other hand, the two trial courts allegedly relied on the hearings
conducted by the UPED in resolving that petitioner had been in
possession of the property since 1992. Respondent avers that
those hearings referred to a restaurant located 330 meters
away, not to Habagat Grill.21
The determination of the date of entry into the subject lot is a
question of fact. This Court has held in a long line of cases that
the review of cases brought before it via Rule 45 of the Rules of
Court is limited to errors of law. Findings of fact by the CA are
conclusive except in a number of instances, one of which is
when its factual findings are contrary to those of the courts
below, as in the present case.22

AGUSTIN, E.P. | 268

The appellate court held that the minutes of the UPED hearing
pertained to matters relating to a different establishment, the
Kawayan Restaurant.23 Thus, the UPED minutes did not have
any material bearing on the resolution of the present case.
Consequently, the determination of the date of entry into the
subject lot boils down to the appreciation of the testimonies of
Garcia and Ruiz.
"Preponderance of evidence" means that the evidence adduced
by one side is, as a whole, superior to or has greater weight
than that of the other.24 Where the evidence presented by one
side is insufficient to ascertain the claim, there is no
preponderance of evidence.25 In criminal cases in which the
quantum of evidence required is greater than in civil cases, the
testimony of only one witness -- if credible, straightforward, and
worthy of belief -- is sufficient to convict.26 With more reason
then, Garcias testimony, if clear and positive, may be sufficient
to establish respondents claim.
Under Section 1 of Rule 133 of the Rules of Court, among the
facts and circumstances to be considered by the court in
determining which of the presented evidence has superior
weight is the witnesses means and opportunity to know the
facts to which they testify.27
The extent of such means and opportunity are determined by
the following considerations:
"First, the Actor Rule. This rule maintains that a persons
recollection of his own acts and of the attendant circumstances
is more definite and trustworthy than another persons
recollection of it, especially if it was an act done in the
performance of a duty, or if the other persons testimony is little
more than an expression of opinion or judgment. Apart from
comparative tenacity of memory, the actor usually knows better
than any one else what he did or did not do, and his testimony is
generally, but not always, entitled to superior weight on that
account. Thus, the execution and attestation of a will or other
legal document may be so far regarded as the act of the lawyer
who superintends the transactions and knows the formalities
required by law, and his testimony to the circumstances will
generally outweigh that of a non-professional witness.
"The Actor Rule has been applied in a multitude of admiralty
cases and any other cases where a persons testimony
concerning his own conduct conflicts with the testimony of a
non-participating observer or with inconclusive inferences from
facts proved, especially where the actor witness testifies to an
act which the duties of his employment required him to perform.
But it said that the testimony of one who evidently speaks rather
to his custom than to his acts on the particular occasion will
hardly suffice to put him in the category of those who are
specially favored by the Actor Rule.

"Second, the witness who had the greater interest in noticing

and remembering the facts is to be believed in preference to the

one that had a slighter interest to observe or was wholly
indifferent. Interest has effect on the power of observation of
witness. Thus, it has been held that it was not remarkable that
witnesses would not have observed traces of blood along the
route through which the deceased was taken because said
witnesses had no reason to suspect that the crime was not
committed in the place where the dead body was found.
Similarly, the failure of witnesses to notice whether or not there
were houses at the place where they say the accused maltreat
the offended party was attributed as due to the fact that their
attention was concentrated to what they say, and they had no

EVIDENCE

interest in knowing whether or not there were houses in or

around the place.

"Third, the witness who gives reasons for the accuracy of his

observations is preferred to him who merely states the fact to be

so, without adverting to any circumstances showing that his
attention was particularly called to it. Thus, the testimony of the
crew of a vessel that their light on the night of a collision was
red, and nothing more, was easily overcome by testimony of
witnesses on the other vessel that the light was white, not red,
and that fact was a matter of remark among them when the
light was observed.

"Fourth, the witness in a state of excitement, fear, or terror is

generally incapable of observing accurately. This is so because,

if men perceive the most insignificant facts in the most diverse
ways, even when it is impossible that these facts should produce
on the observer any emotion preventing him from observing
with absolute calm, even much more will their impressions be
diversified under circumstances calculated to produce in the
onlookers excitement, fear or terror.

"Fifth, intoxication tends to impair accuracy both of observation

and memory of a witness."28 (Citations omitted)

Based on the foregoing criteria, the testimony of Garcia must be

given greater weight, considering that it was his task -- as the
real property manager of respondent -- to know about matters
involving the latters properties. In contrast, it was not explained
how Ruiz could be deemed competent and credible in his
testimony as to those matters.
The lower courts dismissed the testimony of Garcia -- regardless
of how clear, positive and straightforward it was -- solely on the
ground that he was not a disinterested witness. True, he was an
employee of respondent; relationship, however, will not by itself
determine the true worth of ones testimony.29 The essential test
is whether such testimony is disencumbered, credible, and in
accord with human experience.30 It cannot easily be dismissed
by the mere invocation of the witness relationship with
respondent. In sum, we have no reason to disagree with the
CAs evaluation that, being credible, Garcias direct testimony
was sufficient to establish respondents claim that petitioner had
entered the premises on December 1, 1993.
Second Issue:

Cause of Action
Petitioner avers that no cause of action was alleged by
respondent, as shown by the following circumstances: (1) the
latters property was not encroached upon by Habagat Grill,
which had allegedly been constructed on a portion of land
owned by the City Government of Davao;31 and (2) respondent
failed to prove that its predecessor-in-interest had prior
possession of the property.32
On the other hand, respondent argues that the trial court
indiscriminately ignored the Report of the survey team that had
been constituted to determine the exact location of Habagat
Grill. Respondent further contends that the trial court erred in
taking judicial notice of the metes and bounds of the property
covered by Presidential Proclamation No. 20.33 Although the
lower court may take judicial notice of PD No. 20, it may not do
so in regard to the metes and bounds of Times Beach. Neither,

AGUSTIN, E.P. | 269

may it claim knowledge of the situational relation between the

land in question and Times Beach.

evidence thereon is not admissible, except only for the purpose

of determining the issue of possession.40

Location of the Property

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

detainer -- may be distinguished from each other mainly by the
fact that in forcible entry, the plaintiffs must prove that they
were in prior possession of the premises until they were
deprived thereof by the defendant; in unlawful detainer, the
plaintiff need not have been in prior physical possession.41

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

certain facts which judges may properly take and act on without
proof because they already know them."34 Its object is to save
time, labor and expense in securing and introducing evidence on
matters that are not ordinarily capable of dispute or actually
bona fide disputed, and the tenor of which can safely be
assumed from the tribunals general knowledge or from a slight
search on its part.
Indeed, municipal courts may take judicial notice of the
municipal ordinances in force in the municipality in which they
sit.35 Such notice, however, is limited to what the law is and
what it states.36 As can be gleaned from its discussions, the trial
court took judicial notice of the existence of Presidential
Proclamation No. 20, which declared Times Beach a recreation
center. The MTC also took judicial notice of the location of the
beach, which was from the shoreline to the "road towards the
shoreline." On the basis of these premises, the trial court
resolved that the lot on which petitioners restaurant was located
should necessarily be inside Times Beach, which was owned by
the City of Davao. Hence, it was the City -- not respondent -that had a cause of action against petitioner. To arrive at this
conclusion, the MTC made its own estimate of the location of the
metes and bounds of the property mentioned by the law.37
The location of Habagat Grill cannot be resolved by merely
taking judicial notice of Presidential Proclamation No. 20; such
location is precisely at the core of the dispute in this case.
Moreover, considering respondents allegation that the supposed
lot covered by the Ordinance has been lost due to inundation by
the sea, we cannot fathom how the trial court could have known
of the actual location of the metes and bounds of the subject lot.

Spouses Benitez v. CA42 has held that possession can be

acquired not only by material occupation, but also by the fact
that a thing is subject to the action of ones will or by the proper
acts and legal formalities established for acquiring such right.

Possession can be acquired by juridical acts. "These are acts to

which the law gives the force of acts of possession. Examples of
these are donations, succession, x x x execution and registration
of public instruments, and the inscription of possessory
information titles."43 For one to be considered in possession, one
need not have actual or physical occupation44 of every square
inch of the property at all times. In the present case, prior
possession of the lot by respondents predecessor was
sufficiently proven by evidence of the execution and registration
of public instruments and by the fact that the lot was subject to
its will from then until December 1, 1993, when petitioner
unlawfully entered the premises and deprived the former of
possession thereof.
WHEREFORE, the Petition is DENIED and the challenged
Decision and Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ.,
concur.

Neither may the MTC take discretionary judicial notice under

Section 2 of Rule 129 of the Rules of Court, because the exact
boundaries of the lot covered by that law are not a matter of
public knowledge capable of unquestionable demonstration.
Neither may these be known to judges because of their judicial
functions.
Hence, the CA was correct in disregarding the findings of the
trial courts, because they had erred in taking judicial notice of
the exact metes and bounds of the property. The appellate court
aptly relied on the Report submitted by the survey team that had
been constituted by the trial court, precisely for the purpose of
determining the location of Habagat Grill in relation to
respondents lot.

Prior Possession
Finally, petitioner avers that respondent failed to prove that the
latters predecessor-in-interest had prior possession of the
property.38 Conversely, respondent alleges that its predecessor
was in prior physical possession of the property as the registered
owner thereof since June 11, 1981.39 Again, we rule for
respondent.
There is only one issue in ejectment proceedings: who is entitled
to physical or material possession of the premises; that is, to
possession de facto, not possession de jure? Issues as to the
right of possession or ownership are not involved in the action;

EVIDENCE

AGUSTIN, E.P. | 270

Republic of the Philippines

SUPREME COURT
Manila

The nine other Informations are similarly worded except for the
date when the theft was committed, the amount taken, and the
name of the teller whose collection was taken. The pertinent
data in the other informations are as follows:

FIRST DIVISION
G.R. No. 165884

April 23, 2007

CIELITO R. GAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION

Amount

Name
Teller

of

Case No.

Date

127-AF
(4683-R)

13 December
Mercedita S.
P17,895.00
1982
Manio

225-AF
(4684-R)

30 May 1983

P11,228.00

Elsa
Dantes

128-AF
(4685-R)

2 June 1983

P10,500.85

Mercedita S.
Manio

153-AF
(4686-R)

7 September
Mercedita S.
P30,819.00
1983
Manio

666-AF
(4687-R)

7 November
Elsa
P13,678.00
1983
Dantes

155-AF
(4688-R)

13 February
P8,975.75
1984

Mercedita S.
Manio

667-AF
(4689-R)

4 June 1984

P16,820.00

Elsa
Dantes

668-AF
(4690-R)

4 June 1984

P25,668.00

Mercedita S.
Manio

226-AF
(4691-R)

23 July 1984

P9,551.60

Mercedita S.
Manio

A.

CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, which seeks to set aside the Decision1 of the
Court of Appeals dated 16 June 2004 in CA-G.R. CR No. 22073
which affirmed, except for the penalties imposed, the Joint
Decision2 of Branch 26 of the Regional Trial Court (RTC) of
Cabanatuan City, in Criminal Cases No. 224-AF (4682-R), 127-AF
(4683-R), 225-AF (4684-R), 128-AF (4685-R), 153-AF (4686-R),
666-AF (4687-R), 155-AF (4688-R), 667-AF (4689-R), 668-AF
(4690-R) and 226-AF (4691-R) dated 27 August 1997 finding
petitioner Cielito R. Gan guilty of ten counts of Simple Theft, and
its Resolution3 dated 20 October 2004 denying petitioners
motion for reconsideration.
The ten informations for Qualified Theft were filed on 2 May
1985. On 14 June 1987, the Provincial Courthouse was razed
causing the records of the cases to be burned. By reason
thereof, the records of the cases were ordered reconstituted by
the trial court. On 12 August 1987, the reconstitution of the
records was terminated and all the documents submitted were
approved.
The accusatory portion of the information in Crim. Case No. 224AF (4682-R) reads:
That on or about the 15th day of November, 1982, in the City of
Cabanatuan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above- named accused,
being employed as an internal auditor of the Wesleyan
University-Philippines, with intent of gain and without the
knowledge of the said institutions representative, Dr. Gloria D.
Lacson, President, person-in-charge of the administrative and
financial matters, with serious breach of confidence reposed on
him by his employer did then and there willfully, unlawfully, and
feloniously take, steal and carry away the sum of FIVE
THOUSAND SIX HUNDRED THIRTY PESOS & 45/100
(P5,630.45), Philippine Currency, in the following manner to wit:
said accused then assigned as the internal auditor of the
aforesaid Wesleyan University-Philippines, for the purpose of
auditing the task performed by the accounting department
thereof, as in fact said auditor did audit the "cash turn over slip"
representing the part cash collection of Elsa A. Dantes, teller, for
the said business day and after counting and auditing the cash,
check/s embodied therein, instead of returning the same to said
teller for the final turn-over to the treasurer, said accused
deliberately withheld the same without any authority to do so
and pocketed the sums involved, to the damage and prejudice of
the Wesleyan University-Philippines in the aforementioned
amount, Philippine Currency.4

EVIDENCE

A.

A.

When arraigned on 28 October 1987, petitioner, assisted by

counsel de parte, pleaded not guilty to the charges.5 No pre-trial
conference was conducted because appellant and his counsel did
not agree to the holding thereof.6 Thereafter, joint trial of the
cases ensued.
The prosecution presented the following witnesses: Elsa A.
Dantes, Merceditas S. Manio, Jose B. Ferrer, Emely Pajarillaga,
Librada D. Lacson, Inocencia Sarmenta, and Jose C. Reyes. On
the other hand, the accused took the witness stand for the
defense.
Elsa A. Dantes7 testified that she has been working at the
Wesleyan University-Philippines (WUP) since 1972 and has been
holding the position of teller since June 1981. As teller, she
receives payments from students or persons paying the school
for which she issues receipts. The original copy of the official
receipt is given to the person paying while she holds on to the
duplicate and triplicate copies. She explains that she turns over
her collection for the day to the Internal Auditor of WUP for
auditing purposes. Together with the money, she turns over

AGUSTIN, E.P. | 271

three copies of Cash Turn Over Slips (CTOS) and the duplicate
and triplicate copies of the official receipts she had issued for the
payments she had received. The Internal Auditor returns to her
one copy of the CTOS, and the duplicate and triplicate copies of
the official receipts which she will use as bases in making an
abstract of receipts. She said it is the tellers duty to turn over
the money to the Internal Auditor and it is the latter who will
give it to the treasurer. Once she turns over the money to the
Treasurer, she no longer knows what the Internal Auditor does
to the money. She said she was on duty on 15 November 1981,8
30 May 1983,9 7 November 1983,10 and 4 June 198411 where
she turned over to petitioner for auditing the amounts of
P5,630.45, P11,228.00, P13,6780 and P16,820, respectively,
together with their corresponding CTOS and duplicate and
triplicates copies of the official receipts. As proof that she
prepared the CTOS, her initials12 appear thereon. She explained
that the initials13 of petitioner on the CTOS which he affixed in
her presence indicate that he has received the money from her.
Since the CTOS14 did not contain the signature of the Treasurer
of WUP, it means that the money was not delivered to the
Treasurer. She revealed she learned about the missing funds
from Joaquin Cunanan and Company, WUPs External Auditor,
when the latter discovered the same. She disclosed that there
was no written instruction for her to deliver and leave the money
to the Internal Auditor.
Merceditas Manio15 took the witness stand and stated that she
has been a teller at WUP since 1 July 1981. Among her duties is
to receive cash payments made to the WUP whereby she issues
receipts therefor. The original (first) copy of the receipts are
given to the payor while the second and third copies thereof are
retained by her to be given to the Internal Auditor for auditing
purposes. On 13 December 1982,16 2 June 1983,17 7 September
1983,18 13 February 1984,19 4 June 1984,20 and 23 July 1984,21
she turned over her collections for the day in the amounts of
P17,895.00, P10,500.85, P30,819.00, P8,975.75, P25,668.00,
and P9,551.60, respectively. Each amount was turned over to
the Internal Auditor for audit accompanied with the CTOS and
the duplicate and triplicate of the official receipt. All the CTOS22
covering the foregoing amounts contained both her signature23
and that of petitioner which show that it was she who prepared
the CTOS and that the amounts were turned over to the
petitioner. She said petitioner wrote his signatures24 or initials on
the CTOS in her presence.
Ms. Manio further narrated that she learned her duties as teller
from petitioner and that from the time she started working as a
teller in June 1981, she turned over her collections to petitioner.
She said it was through the External Auditor, Joaquin Cunanan
and Company, that she found out about the missing funds. She
added that although there was no written instruction from the
management of the WUP to turn over the collections to the
Internal Auditor, it was the usual procedure for tellers to turn
over the collections to petitioner. She stressed that the signature
of petitioner in the CTOS means he audited the collection and
took the money. Of the two copies of the CTOS retained by
petitioner, petitioner is supposed to deliver a copy to the
Treasurer who will sign the copy to be kept by petitioner.
Jose B. Ferrer25 testified that he has been the Accountant of
WUP since June 1974. As such, his duties, among other things,
are to record in the General Ledger the monthly transactions
reflected in the cash disbursement book, cash receipts book, and
receivables from students and employees. He said that the
Internal Auditor is not the custodian of funds and the tellers are
not supposed to turn over their collections to the Internal
Auditor. However, there was an order from the Internal Auditor
to turn over the collections to him. He explained that although
there was no written order, memo or circular requiring the

EVIDENCE

collections of the tellers to be turned over to the internal auditor,

the tellers still followed the order of the Internal Auditor to turn
over to him their collections. Having full trust in him as
representative of the Office of the President, they followed him
because they believed that whatever is being ordered by him
comes from the President. When petitioner was appointed
Internal Auditor in 1979, he disclosed that the latter began to
change all their procedures. He added that the Internal Auditor
checks the work of the tellers, Accountant and the Treasurer and
whatever corrections he makes on the work of the Treasurer, he
considers to be conclusively correct because he trusts him, he
being a Certified Public Accountant.
Emely Pajarillaga26 narrated that she has been the Bookkeeper
of the WUP since May 1980. As bookkeeper, her duties include
recording cash disbursements based on paid vouchers,
collections based on abstracts given by the tellers, and official
receipts in the cash receipts book. She said she does not know
about the collections of Elsa A. Dantes and Merceditas Manio on
15 November 1982 and the succeeding dates mentioned in the
informations. It was through Joaquin Cunanan and Company
that she, together with the school, learned about the missing
funds. She explained that she is under the Accounting
Department headed by Jose Ferrer, which is separate from the
Internal Auditing Office headed by petitioner. The Internal
Auditing Office, she declared, is not under the supervision of the
Accounting Office.
Librada D. Lacson27 testified that she has been an employee of
the WUP and is the younger sister of the President of WUP, Dr.
Gloria D. Lacson. He knows petitioner to be the former Internal
Auditor of WUP. She narrated that after three years of looking
for petitioner because of the criminal cases filed against him,
petitioner was arrested in Paraaque by two policemen from
Baclaran. At the time of petitioners arrest, she said she was a
few meters away. They thereafter brought petitioner to
Cabanatuan City and entrusted him to the Cabanatuan City
Police Department. For the apprehension of petitioner, the
reward of P20,000.00 given by Dr. Gloria D. Lacson was divided
among her, the two policemen, the driver, and another civilian.
She explained that when petitioner was apprehended, the
arresting officers were armed with a warrant of arrest which she
said was issued sometime between the years 1986 and 1987
after petitioner disappeared.
Inocencia Sarmenta28 testified that she is the Treasurer of WUP
and has known petitioner since 1981. Her duties, among other
things, are to take custody of the schools monies which come to
her possession and to see to it that its obligations are paid. In
handling the monies, she keeps receipts which she has signed
together with the deposit slips and passbook. As Treasurer, she
explained that the procedure of the flow of money from the
teller up to the time it reaches her possession is that the teller
turns over the money to Cielito Gan who is supposed to turn
over the monies to her. She said that this was the procedure
prescribed by petitioner when the latter was appointed Internal
Auditor and it was the latter who instructed the tellers thereof.
As evidence of the teller that the money is turned over to the
Internal Auditor, the teller prepares a CTOS which the teller
gives to the Internal Auditor, together with the money. After the
money is audited by the Internal Auditor, he is supposed to turn
it over to her on the same date. After she receives the money,
she prepares the four copies of the deposit slip and then
deposits the money in their depositary bank. Prior to the
appointment of petitioner as Internal Auditor, the procedure was
for the tellers to turn over the money to the Treasurer. She
disclosed that she did come across the CTOS marked Exhibits
"A" to "J." Since the monies were not turned over to her, it only
means that the same went to petitioner. She added that being a

AGUSTIN, E.P. | 272

co-employee, she knows the signature of the petitioner and that

his signature appears in the CTOS.
Ms. Sarmenta said that when the new procedure was
implemented, she did not take any step to question it because
petitioner was directly under the Office of the President and as
Internal Auditor, he has the authority to implement it. She
learned in the later part of August 1984 from the schools
External Auditor, Joaquin Cunanan and Company, that the CTOS
involved in this case were not turned over to her. When she
learned of the loss, she was not able to talk to petitioner
because he was already absent without official leave (AWOL)
and was no longer in the office. She talked to the tellers who
informed her that they gave the money covered by the subject
CTOS to petitioner. The President of WUP, she said, asked that
petitioner be located. She added that a Fact Finding Committee
was formed by the school and that petitioner was found to be at
fault. Finally, she said the money that was not missing was
deposited by her in the bank.
Jose C. Reyes,29 a partner of the Joaquin Cunanan and
Company, testified that the company has been the External
Auditor of WUP since 1977. It conducted yearly audit on WUP
and in the audit of the 31 May 1984 financial statement, the
auditors became suspicious because they noted that collections
remained undeposited contrary to the 31 May 1984 bank
reconciliation. After informing the president of the suspicious
entries, they widened the scope of their examination and asked
for the CTOS. The company was hired for a special audit in
September 1984. They focused only on cash and discovered that
P1.7 million covering the period 1981 to 1984 cannot be
accounted for. Said finding was contained in their report.30
He revealed that although he had no personal participation in
the preparation of the report, they did the actual examination
since he was still there and that the result is in their possession.
The report, he said, is based on the working papers consisting of
documents, CTOS and receipts. The CTOS31 involved in this
case, except for one,32 are included in the report.
He explained that there is a ruling in Accounting that no one or
no person shall be in-charge of all phases of the transaction. In
the case of WUP, petitioner, as Internal Auditor, was able to get
hold of the collections and this is "a very strong violation" of a
good internal audit and accounting, because the internal auditor
can easily manipulate the records. The ordinary procedure of
WUP was for the teller who receives the collections to turn over
the same directly to the treasurer and then the treasurer
deposits the money in the bank. From the CTOS they examined,
they learned that this procedure was not followed by petitioner
because the collections still passed through him. He added there
was a turnover of CTOS to the treasurer but not actually the
amounts received from the teller.
He further explained that the anomaly was discovered only
during the regular audit for 1984. During the special audit, as
noted in their report, they tried to account for all the CTOS that
the tellers prepared, but neither the tellers copy nor the
treasurers copy can be accounted for.
Petitioner Cielito R. Gan testified that prior to his appointment in
June 1979 as Internal Auditor of WUP, he was a student
assistant in the Accounting Office from 1973 to 1974 and
bookkeeper from 1974 until he was appointed Internal Auditor.
As Internal Auditor, he emphasized it is not his duty to have
custody of funds. It is the Treasurer who is the custodian of all
school funds and the primary duty of the tellers is to turn over
their collections to the Treasurer. He explained that when he

EVIDENCE

conducts an audit on the collections of the tellers, the tellers

who make the turn over of the collections are present. In
conducting his audit which usually takes three to five minutes,
he said that in the presence of the tellers he physically counts
the cash to determine if the CTOS tallies with the receipts. If it
does, he affixes his signature in the middle portion of the CTOS
signifying that he audited that particular CTOS, and then he
returns the cash, CTOS and official receipts to the teller
concerned. His signature on the CTOS does not mean he
received the money. He does not get a copy of the CTOS
because it is the Treasurer who gives him a copy thereof after
the money has been deposited in the bank by the Treasurer and
that he receives it within three to five days. After his audit, he
said he presumes that the tellers turn over the cash, CTOS and
official receipts to the Treasurer because that is their duty. He
audits the cash deposits of the Treasurer and he does this by
comparing the CTOS with the deposit slip which documents are
furnished him by the Treasurer. He added that if the Bank
Reconciliation Statement, made up of the account of the school
and the record of the bank, is balanced and tallies, there is no
missing account. It is the Accountant of the school who prepares
this document which is noted by the Treasurer. As far as he
knows, the Bank Reconciliation Statement of the school from
1982 to 1984 tallied.
Petitioner insisted the charges are not true. He claimed he had
no participation in the losses. He admitted getting hold of the
money/collection together with the CTOS and official receipts for
audit, but claimed he returned them to the tellers who then turn
them over to the Treasurer who is the custodian of the funds of
the school. He maintained that he had nothing to do with the
change of policy as regards the flow of money in WUP. If there
is a change of policy, the approval of the WUP President is
required because it is not part of his authority to do so. He said
that sometime in 1982, the tellers told him their file of CTOS was
not complete because they had not received their copies of the
CTOS from the Treasurer. During the period 1982 to 1984, he
claims the tellers did not complain about any missing fund.
Petitioner disclosed he came to know about the missing funds
when the External Auditor, Joaquin Cunanan and Company,
reported it in 1984. Prior to the report, he did not know there
were missing funds because he assumed that the funds were
intact because the Monthly Bank Reconciliation Statement
always tallied. He was not able to take steps to locate the
missing funds because he was the one being pointed to by the
people in the Accounting Office as the perpetrator. As the one
being blamed for the loss, he filed his resignation on 31 August
1984 without clearing his name. He claimed he was not able to
clear himself in an investigation because at the time he left,
there was no investigation yet. The only reason he could think of
why he was being accused is jealousy. He said he started as a
mere student assistant, but through his efforts, he reached the
position of Internal Auditor.
He said he did not give any written explanation before he
resigned and that he was not aware that a complaint against
him was forthcoming. He said that while the external audit was
being conducted, the Treasurer, Ms. Inocencia Sarmenta, told
him there were missing funds and that they were blaming him
for them. He said he also did not personally approach any of the
external auditors to verify what the missing funds were. He
resigned because of the pressure and intrigues due to the
anomalies that were uncovered and were being blamed on him.
He admitted that his resignation was not accepted and that the
WUP President, Dr. Lacson, wrote him informing him of some
problems that should be cleared. When he went to Dr. Lacsons
house, he was told to pay the lost amount but he replied he did

AGUSTIN, E.P. | 273

not make it because he did not handle the cash. Thereafter, on

October 3 or 4, 1984, he left without clearance from the school.
He said that after he left the WUP in Nueva Ecija, he stayed or
resided in San Antonio, Cagayan, and Paraaque. He traveled a
lot because he was trying to earn a living and never bothered to
work in Cabanatuan City because he was being threatened that
if he was seen there, something bad will happen to him. He said
he did not know that his drawer was opened in the presence of
police officers and the investigators found copies of CTOS which
he allegedly falsified.
He added that he does not know if the school trusted him, but
he believes he was hired because of his ability. He said the
President of WUP trusted the Treasurer and the Accountant
more than him and that he felt like a dummy in his office.
Though he was familiar with the activities in the Treasurer,
Accounting and Bookkeeping Offices, he never changed the
manner of transaction in these offices. If ever changes or
amendments are to be made, the same will come from the
Presidents Office. When he became Internal Auditor, he said he
merely continued or retained the system or scheme that was
being implemented since he was still a student assistant. He said
he cannot remember any occasion when he personally handed
over to the Treasurer money handed over to him by the tellers.
Petitioner said he merely kept silent and did not object to the
finding of the External Auditor that he is the most logical
perpetrator of the irregularity, because he had no more time to
comment since the prosecution was already presenting its
evidence when he was able to read the report.
In its decision dated 27 August 1997, the trial court found
petitioner guilty of 10 counts of Simple Theft, the dispositive
portion of which reads:
PREMISES CONSIDERED, and finding the accused CIELITO R.
GAN guilty beyond reasonable doubt of the crime of Theft in
each of ten (10) cases, is hereby sentenced to suffer the penalty
of:
1. In Crim. Case No. 224-AF (4682-R), and applying
the Indeterminate Sentence Law, FOUR (4) MONTHS
and ONE (1) DAY OF Arresto Mayor, as minimum, to
FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)
DAY of prision correccional, as maximum, and to pay
the offended party the amount of P5,630.45;
2. In Crim. Case No. 127-AF (4683-R), and applying
the Indeterminate Sentence Law, FOUR (4) YEARS,
TWO (2) MONTHS and ONE (1) DAY of prision
correccional, as minimum, to TEN (10) YEARS as
maximum, and to pay the offended party the amount
of P17,895.00;
3. In Crim. Case No. 225-AF (4684-R), and applying
the Indeterminate Sentence Law, the penalty of FOUR
(4) MONTHS and ONE (1) DAY of Arresto Mayor, as
minimum, to FOUR (4) YEARS, TWO (2) MONTHS and
ONE (1) DAY of prision correccional, as maximum,
and to pay the offended party the amount of
P11,228.00;
4. In Crim. Case No. 128-AF (4685-R), and applying
the Indeterminate Sentence Law, FOUR (4) MONTHS
and ONE (1) DAY of Arresto Mayor, as minimum, to

EVIDENCE

FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)

DAY of prision correccional, as maximum, and to pay
the offended party the amount of P10,500.85;
5. In Crim. Case No. 153-AF (4686-R), and applying
the Indeterminate Sentence Law, EIGHT (8) YEARS
and ONE (1) DAY of prision mayor, as minimum, to
TWENTY (20) YEARS of reclusion temporal, as
maximum, and to pay the offended party the amount
of P30,819.00;
6. In Crim. Case No. 666-AF (4687-R), and applying
the Indeterminate Sentence Law, FOUR (4) YEARS,
TWO (2) MONTHS and ONE (1) DAY of prision
correccional, as minimum, to TEN (10) YEARS of
prision Mayor, as maximum, and to pay the offended
party the amount of P13,678.00;
7. In Crim. Case No. 155-AF (4688-R), and applying
the Indeterminate Sentence Law, FOUR (4) MONTHS
and ONE (1) DAY of Arresto Mayor, as minimum, to
FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)
DAY to SIX (6) YEARS, of prision correccional, as
maximum, and to pay the offended party the amount
of P8,915.75;
8. In Crim. Case No. 667-AF (4689-R), and applying
the Indeterminate Sentence Law, FOUR (4) YEARS,
TWO (2) MONTHS and ONE (1) DAY of prision
correccional, as minimum, to TWELVE (12) YEARS of
prision mayor, as maximum, and to pay the offended
party the amount of P16,820.00;
9. In Crim. Case No. 668-AF (4690-R), and applying
the Indeterminate Sentence Law, EIGHT (8) YEARS
and ONE (1) DAY of prision mayor, as minimum, to
TWENTY (20) YEARS of reclusion temporal, as
maximum, and to pay the offended party the amount
of P25,668.00;
10. In Crim. Case No. 226-AF (4691-R), and applying
the Indeterminate Sentence Law, FOUR (4) MONTHS
and ONE (1) DAY of Arresto Mayor, as minimum, to
FOUR (4) YEARS, TWO (2) MONTHS and ONE (1)
DAY of prision correccional, as maximum, and to pay
the offended party the amount of P9,551.60;
11. And to pay the cost of suit.33
The trial court justified its ruling in this wise:
A careful scrutiny and analysis of the evidence presented by the
prosecution and defense, this Court has reached the inevitable
conclusion that the evidence of the prosecution is more credible
than that of the accused and is sufficient to establish the guilt of
the accused beyond reasonable doubt in the ten (10) cases. In
fact, it was shown that when it was pointed out that the accused
was responsible for the missing funds, he did not take any step
at all to clear his name, but instead he resigned and although
there is no official action yet on his resignation, he left the
University without any leave of absence, that is, he went AWOL.
As a matter of fact, when a warrant for his arrest was already
issued, accused Cielito Gan was no longer in Cabanatuan City, as
he was apprehended in Paraaque by a team commissioned by
the University. From the aforesaid actuation of the accused, the
Court cannot comprehend any positive result but rather construe

AGUSTIN, E.P. | 274

the flight of the accused as indicative of his guilt and awareness

that he has no tenable defense (PP vs. Mercado, 190 SCRA 452).
Likewise, when the accused took the witness stand, he did not
give any explanation as to the missing funds rather he made
merely denials which cannot stand in the instant cases where
there are direct and specific accusation and for failure of the
accused to deny the same also by specific and direct
circumstances, then the same can be regarded as quasi
confession (PP vs. Magdadaro, 197 SCRA 151). The bare denial
in open Court by the accused of the charges against him cannot
be given evidentiary weight as the prosecution witnesses
affirmatively testified to the culpability of the accused (PP vs.
dela Torre, 198 SCRA 663); denial is like alibi which is inherently
a weak defense and cannot prevail over the positive and credible
testimony of the prosecution witnesses that the accused
committed the crimes (PP vs. Belibet, 199 SCRA 587).
Finally, the Court cannot close its eyes to the fact that when the
accused went on AWOL, an investigation was conducted and the
people from the University in the presence of some police
officers found in the drawer of the accused copies of Cash Turn
Over Slips which were falsified by the accused, so the conclusion
reached by the Court is fortified. Nevertheless, the Court did not
find any clear evidence to support the allegation of the
prosecution of trust and confidence on the accused, as in fact,
the accused said that he does not know if trust and confidence
was reposed on him, although, as stated above, the guilt of the
accused is proved beyond reasonable doubt for Theft on the ten
(10) counts as it is clearly proved that the amount of money
stated in the information were taken by the accused with intent
of gain.34
After the promulgation of the decision of the trial court,
petitioner, who was on provisional liberty by virtue of the
bailbonds he posted, was taken into custody. Thereafter, he filed
a Petition for Bail35 which the trial court denied in an Order
dated 19 December 1997.36
A Notice of Appeal having been filed by petitioner, the trial court
transmitted the complete records of the cases to the Court of
Appeals.37
Petitioner filed anew a Petition for Bail38 before the Court of
Appeals which the latter denied in a resolution dated 3 March
1999.39 The Motion for Reconsideration filed by petitioner was
likewise denied on 19 April 2000.40
On 16 June 2004, the Court of Appeals rendered its decision
affirming the conviction of petitioner but modified the penalties
imposed as follows:
WHEREFORE, in the light of the foregoing, the court a quos
Joint Decision promulgated on September 29, 1997 is hereby
MODIFIED to reflect, as it hereby reflects, that:
1. In Criminal Case No. 224-AF (4682-R), accusedappellant is sentenced to suffer an indeterminate
penalty of four (4) months and one (1) day of arresto
mayor, as minimum, to two (2) years of prision
correccional, as maximum; and to pay private
complainant Wesleyan University-Philippines the
amount of Five Thousand Six Hundred Thirty Pesos
and Forty-Five Centavos (P5,630.45);

day of prision correcional, as minimum, to eight (8)

years of prision mayor, as maximum; and to pay
private complainant Wesleyan University-Philippines
the amount of Seventeen Thousand Eight Hundred
Ninety-Five Pesos (P17,895.00);
3. In Criminal Case No. 666-AF (4687-R), accusedappellant is sentenced to suffer an indeterminate
penalty of four (4) years, two (2) months and one (1)
day of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum; and to pay the
private complainant Wesleyan University-Philippines
the amount of Thirteen Thousand Six Hundred
Seventy-Eight Pesos (P13,678.00);
4. In Criminal Case No. 667-AF (4689-R), accusedappellant is sentenced to suffer an indeterminate
penalty of four (4) years, two (2) months and one (1)
day of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum; and to pay the
private complainant Wesleyan University-Philippines
the amount of Sixteen Thousand Eight Hundred
Twenty Pesos (P16,820.00);
5. In Criminal Case No. 153-AF (4686-R), accusedappellant is sentenced to suffer an indeterminate
penalty of eight (8) years and one (1) day of prision
mayor, as minimum, to eleven (11) years of prision
mayor, as maximum; and to pay private complainant
Wesleyan University-Philippines the amount of Thirty
Thousand
Eight
Hundred
Nineteen
Pesos
(P30,819.00);
6. In Criminal Case No. 668-AF (4690-R), accusedappellant is sentenced to suffer an indeterminate
penalty of eight (8) years and one (1) day of prision
mayor, as minimum, to eleven (11) years of prision
mayor, as maximum; and to pay private complainant
Wesleyan University-Philippines the amount of
Twenty-Five Thousand Six Hundred Sixty-Eight Pesos
(P25,668.00); and
7. In Criminal Case No. 155-AF (4688-R), accusedappellant is sentenced to suffer an indeterminate
penalty of four (4) months and one (1) day of arresto
mayor, as minimum, to four (4) years, two (2)
months and one (1) day of prision correccional, as
maximum; and to pay private complainant Wesleyan
University-Philippines the amount of Eight Thousand
Nine Hundred Fifteen Pesos and Seventy-Five
Centavos (P8,915.75);
The aforesaid Decision is AFFIRMED in all other respects.41
Petitioner filed a Motion for Reconsideration42 which was denied
in a resolution dated 20 October 2004.43
Petitioner is now before us raising the following arguments:
A. THE COURT OF APPEALS GRAVELY ERRED IN
CONVICTING THE ACCUSED DESPITE THE FAILURE
OF THE PROSECUTION TO PASS THE TEST UNDER
SEC. 4, RULE 133, RULES OF COURT.

2. In Criminal Case No. 127-AF (4683-R), accusedappellant is sentenced to suffer an indeterminate

penalty of four (4) years, two (2) months and one (1)

EVIDENCE

AGUSTIN, E.P. | 275

B. THE COURT OF APPEALS GRAVELY ERRED IN

BASING THE JUDGMENT OF CONVICTION ON MERE
PRESUMPTION OF GUILT.

the tellers are turned over to him and then it is he

who turns over the money to the Treasurer after
audit.49

On the first assigned error, petitioner contends that the

prosecution failed to show the unbroken chain of circumstantial
evidence to prove the guilt of petitioner, because petitioner
could not have taken the money subject matter of this case in
light of the alleged admission of Treasurer Inocencia Sarmenta
that petitioner turned over the money to her.

2. WUP tellers Elsa A. Dantes50 and Merceditas S.

Manio51 categorically stated they turned over the
money involved in these cases to petitioner for audit.
As evidence thereof, the signature52 of petitioner
appears on the ten CTOS.

We find such contention to be untenable.

There is no dispute that the prosecution failed to adduce direct
evidence showing that petitioner took the money mentioned in
the ten informations because no one saw him in flagrante
delicto, that is, in the very act of committing a crime. However,
the lack or absence of direct evidence does not necessarily mean
that the guilt of an accused cannot be proved by evidence other
than direct evidence. Direct evidence is not the sole means of
establishing guilt beyond reasonable doubt since circumstantial
evidence, if sufficient, can supplant its absence.44 The crime
charged may also be proved by circumstantial evidence,
sometimes referred to as indirect or presumptive evidence.45
Circumstantial evidence has been defined as that which "goes to
prove a fact or series of facts other than the facts in issue,
which, if proved, may tend by inference to establish a fact in
issue."46 Circumstantial evidence may be resorted to when to
insist on direct testimony would ultimately lead to setting felons
free.47
The standard that should be observed by the courts in
appreciating circumstantial evidence was extensively discussed
in the case of People v. Modesto,48 thus:
No general rule can be laid down as to the quantity of
circumstantial evidence which in any case will suffice. All the
circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at
the same time inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis except that of
guilt.
It has been said, and we believe correctly, that the
circumstances proved should constitute an unbroken chain which
leads to one fair and reasonable conclusion which points to the
accused, to the exclusion of all others, as the guilty person.
From all the circumstances, there should be a combination of
evidence which in the ordinary and natural course of things,
leaves no room for reasonable doubt as to his guilt. Stated in
another way, where the inculpatory facts and circumstances are
capable of two or more explanations, one of which is consistent
with innocence and the other with guilt, the evidence does not
fulfill the test of moral certainty and is not sufficient to convict
the accused.
In the case at bar, the prosecution adduced the following
circumstantial evidence to show that petitioner, without
authority, pocketed the amounts stated in the infomations:
1. As Internal Auditor of WUP, petitioner changed the
procedure as regards the flow of money from the
tellers to the Treasurer. Prior to his appointment as
Internal Auditor, the procedure was that the tellers
directly turn over their collections to the Treasurer
without passing through the Internal Auditor. After
petitioner became Internal Auditor, the collections of

EVIDENCE

3. WUP Treasurer Inocencia Sarmenta emphatically

declared that she has not come across the Cash Turn
Over Slips (CTOS)53 involved in these cases and has
not received from petitioner the amounts mentioned
therein.54
4. Monies mentioned in the informations were not
turned over by petitioner to Treasurer Sarmenta.55
5. A special audit was conducted by Joaquin Cunanan
and Company with a finding that the amount of
P1,714,889,28, which included, among other things,
the amounts alleged in the informations, was
misappropriated and not deposited with the bank.56
6. When the special audit was still being conducted,
petitioner submitted his letter of resignation. Not
having secured his clearance from WUP, petitioner
left without making any action to clear his name.57
In this case, we hold that the circumstantial evidence presented
by the prosecution warrants the finding of guilt of petitioner.
Under Rule 133, Section 4, of the Rules of Court, it is stated that
there is sufficiency of circumstantial evidence when: (1) there is
more than one circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the combination of all
the circumstances is such as to produce a conviction beyond
reasonable doubt.58 The circumstances above-mentioned upon
which the conviction of petitioner is anchored, satisfactorily meet
the requirements of the rules.
The defense of petitioner is denial. He denies changing the
procedure in the flow of money from the tellers to the Treasurer.
His statement that it is the tellers who directly turn over the
collections for the day to the Treasurer is belied by the tellers
and the Treasurer. The two tellers and the Treasurer are one in
saying that the collections for the day pass through petitioner
first for audit before the latter turns them over to the Treasurer.
They affirm that such procedure was implemented and followed
when petitioner assumed the office of Internal Auditor of WUP.
Ms. Sarmenta explained that even though there was no written
order to effect the new procedure, they followed the procedure
prescribed by petitioner because they believed he had the
authority to do so as Internal Auditor he being directly under the
Office of the President.59
We find the evidence of the prosecution to be more credible
than that adduced by petitioner. When it comes to credibility,
the trial courts assessment deserves great weight, and is even
conclusive and binding, if not tainted with arbitrariness or
oversight of some fact or circumstance of weight and influence.
The reason is obvious. Having the full opportunity to observe
directly the witnesses deportment and manner of testifying, the
trial court is in a better position than the appellate court to
evaluate properly testimonial evidence.60 It is to be noted that
the Court of Appeals affirmed the findings of the RTC. In this
regard, it is settled that when the trial courts findings have been

AGUSTIN, E.P. | 276

affirmed by the appellate court, said findings are generally

conclusive and binding upon this Court. We find no compelling
reason to deviate from their findings.61
Petitioners denial that he changed the procedure in the flow of
money and that he returned the monies he audited to the tellers
cannot prevail over the affirmative and categorical testimonies of
Elsa A. Dantes, Merceditas S. Manio and Inocencia Sarmenta
that they merely followed the procedure that was laid down by
petitioner when he took over as Internal Auditor. Dantes and
Manio positively testified that their collections were left with
petitioner and that the same were not returned to them after
petitioner audited the monies because the latter was the one
who would turn them over to the Treasurer. Sarmenta was firm
in saying she had not come across the CTOS involved and that
the monies therein mentioned were not received by her from
petitioner. Denial is a self-serving negative evidence that cannot
be given greater weight than the declaration of a credible
witness who testified on affirmative matters.62 Like alibi, denial is
inherently a weak defense and cannot prevail over the positive
and credible testimony of the prosecution witnesses.63
Further, denial cannot prevail over the positive testimony of
prosecution witnesses who were not shown to have any illmotive to testify against petitioner. In this case, petitioner tried
to discredit the prosecution witnesses, more particularly Dantes,
Manio and Sarmenta, by saying that these people tried to
attribute to him the missing funds because they are jealous of
him for attaining such a lofty position considering that he merely
started as a student assistant. Such attempt will not prosper
there being no competent evidence to buttress such claim. On
the contrary, his mere position as Internal Auditor, even without
any written order or memorandum, was sufficient justification
for these people to change the present set-up and to follow
what he prescribed. From the actuations of these people, we
find not jealousy, but trust and respect for petitioner.
Petitioners claim that prosecution witness Inocencia Sarmenta
admitted that she received the amounts contained in the
informations from petitioner deserves scant consideration.
Nowhere in the testimony of Ms. Sarmenta had she admitted
that the amounts involved were turned over to her by petitioner.
What Ms. Sarmenta said is she never came across the ten CTOS,
which means she never received the amounts therein
mentioned.64 Petitioner would like to make this Court believe
that Ms. Sarmenta received from him the amounts subject
matter of this case. We quote from the petition:
ATTY. BELTRAN
Q As Treasurer of the Wesleyan University Philippines,
will you please tell us the procedure of the flow of the
money of the University coming from the teller up to
the time it will reach your possession?
A The teller turn (sic) over to Cielito Gan the cash
including the checks, then afterwards, after Cielito
Gan received the monis (sic) including checks, he is
supposed to turn over the same, sir.
xxxx
ATTY. MERCADO
To you.

EVIDENCE

WITNESS
A Yes, sir. (TSN, September 4, 1990, p. 10)
xxxx
ATTY. BELTRAN
Q And after the Cash Turn Over (sic) slips with the
money and the checks is (sic) turned over to Cielito
Gan(,) what will happen to the monies(,) if you know?
A He is suppose (sic) to turn (them) over to me, sir.
xxxx
Q When did Cielito Gan turn over to you the cash turn
over (sic) slips, the moneys and the checks turned
over to him by the tellers?
A He is suppose (sic) to turn over the moneys and
checks on the same date to me after he received and
audited the same, sir. (TSN, September 4, 1990, p.
15).
One copy of the CTOS, though, shall be returned to
the Internal Auditor as his copy, containing the
signature of the treasurer as proof that possession of
the other copy of the CTOS as well as the
cash/checks collection have been turned over to the
treasurer. x x x (DECISION pp. 12-13)
Upon receipt by the treasurer of the cash/check
collection and the other copy of the CTOS, the
treasurer deposits the cash/checks collection in the
bank. Inocencia Sarmenta testified:
ATTY. BELTRAN
Q Now, when you received the cash turn over (sic)
slips, the moneys, the checks from Cielito Gan, what
will you do with it (sic)?
A I prepare the deposit slip and deposit it in our
depository bank (September 4, 1990, pp. 15-16)
(DECISION p. 14).65
A reading of the testimony shows what procedure is
being followed in the WUP. Ms. Sarmenta explained
that after the tellers turn over their collection to
petitioner, the latter, after auditing the same, will turn
over the same to her so that she will deposit it in the
depositary bank. It is clear that Ms. Sarmenta used
the word "supposed" because what should be done
by petitioner is to deliver or turn over the money to
Ms. Sarmenta. In the case at bar, the procedure
which petitioner himself prescribed, was not followed.
He himself did not follow the procedure when he,
without authority, pocketed the amounts stated in the
informations.
Petitioner argues that the Court of Appeals erred in basing his
conviction on mere presumption of guilt.

AGUSTIN, E.P. | 277

We do not agree. Both the trial court and the Court of Appeals
convicted him because the prosecution was able to prove all the
elements of the crime of Theft. The essential elements of theft
are: (1) there was a taking of personal property; (2) the
property belongs to another; (3) the taking was without the
consent of the owner; (4) the taking was done with intent to
gain; and (5) the taking was accomplished without violence or
intimidation against the person or force upon things. 66 Clearly,
all these elements have been shown. The Court of Appeals has
this to say:
Considering, then, from the totality of the prosecutions
testimonial evidence that accused-appellant changed the
procedure in regard to the receipt, audit and custody of
cash/checks paid to the Wesleyan; that the subject funds were
physically turned over by tellers Elsa A. Dantes and Mercedita S.
Manio to accused-appellant but that said funds were not
physically turned over by accused-appellant to treasurer
Inocencia Sarmenta; and that the special external audit report
confirmed the losses during the period indicated in the
Informations, the conclusion that the funds were taken by
accused-appellant is inevitable. Said circumstances, like pieces in
a puzzle that fit in the right place, give such inference as they
clearly show that actual physical possession of the subject funds
last came in the hands of accused-appellant.67
Petitioner argues there was no proof that the checks, as stated
in the assailed decision, were encashed by him. This time,
petitioner is correct that there is no evidence showing that he
encashed the checks because the checks are not included in the
cases filed against him. The subject matter of the ten
informations filed against him are all cash as mentioned in the
ten CTOS.
Petitioner maintains that the testimonies of Elsa Dantes and
Merceditas Manio that they delivered cash/checks to petitioner
are discordant with the testimony of Inocencia Sarmenta that
petitioner delivered them to her for deposit with the bank.
We find nothing inconsistent with their testimonies. As discussed
above, Inocencia Sarmenta never said that the amounts
mentioned in the informations were delivered to her. What she
meant was that petitioner was "supposed" to deliver the tellers
collections to her pursuant to his prescribed procedure after the
tellers delivered them to him for auditing. In other words,
Inocencia Sarmenta could not have deposited the amounts
involved in the bank for the simple reason that petitioner did not
turn over to her the monies that the tellers left with petitioner.
Petitioner argues that since Inocencia Sarmenta did not come
across the ten CTOS, it does not mean he stole the amounts
mentioned therein.
Such argument does not persuade. The statement of Ms.
Sarmenta that she did not come across the ten CTOS must not
be considered on its own but should be considered together with
all the other circumstantial evidence. By itself, it cannot establish
the fact that it was petitioner who took the monies. However, if
the other circumstances aforementioned are taken into account,
the picture becomes clear that it is, indeed, petitioner who
pocketed the monies, he being the last person that got hold of
them.
Petitioner tries to exonerate himself by saying that he cannot be
held responsible for the missing funds because External Auditor
Jose Reyes admitted that the funds collected on 30 May 1984

EVIDENCE

were deposited on 1 June 1984 which means that Ms. Sarmenta

actually received the funds and deposited them in the bank.
Such an admission will not absolve him of liability. The admission
is not relevant in the present case. It is to be noted that what
were deposited on 1 June 1984 were the funds collected on 30
May 1984. A look at any of the ten informations filed does not
show that collections for 30 May 1984 or those that petitioner
pocketed are involved.
Petitioner tried to exploit the fact that nothing in the External
Report68 and/or in the testimony of Auditor Jose Reyes points to
him as the perpetrator. In such a case, he insisted that he
should be acquitted. The fact that he was not singled out by the
report does not mean he should be set free. The report, by
itself, does not prove that he committed the crime charged. The
report merely established that something has been lost and that
said loss was committed during his incumbency as Internal
Auditor of WUP. However, if the other pieces of circumstantial
evidence are considered, together with the report, his liability is
apparent.
Petitioner contends that he cannot be held liable for the charges
on the ground that he was not caught in possession of the
missing funds. This is clutching at straws. To be caught in
possession of the stolen property is not an element of the corpus
delicti in theft. Corpus delicti means the "body or substance of
the crime, and, in its primary sense, refers to the fact that the
crime has been actually committed."69 In theft, corpus delicti has
two elements, namely: (1) that the property was lost by the
owner, and (2) that it was lost by felonious taking.70 In the case
before us, these two elements were established. The amounts
involved were lost by WUP because petitioner took them without
authority to do so.
Petitioner slammed the prosecution when it failed to present the
tellers copies of the CTOS. This will not exonerate him. It must
be stressed that the procedure followed in WUP is for the
Internal Auditor to turn over to the Treasurer after audit the
collections given to him by the tellers. It is not the duty of the
tellers to directly give their collections to the Treasurer because
the same have to pass through the Internal Auditor first for
audit, and it is the latter who would give the monies to the
Treasurer. This Court rules that it should be the petitioner who
should have presented his copy of the CTOS to show if the
Treasurer, indeed, received the collections from him. This, he did
not do. If the Treasurer received the monies from him, the
Treasurers acceptance thereof can be seen in his copy of the
CTOS because the Treasurers signature can be seen thereon.
Even if the tellers CTOS were presented, the signature of the
Treasurer cannot be found there for the simple reason that the
tellers remit their collections not to the Treasurer but to
petitioner pursuant to the procedure prescribed by him.
Petitioner faults the prosecution for not giving him a copy of the
Report of the External Auditor and for not allowing him to
explain his side. These will not exonerate him. Petitioner testified
he was not able to object to the findings of the External Auditor
because it was during the trial of the cases that the report was
made.71 We find this statement to be misleading. The Report of
the External Auditor was not made or finished when the cases
were already being heard. The report72 is dated 5 December
1984. Petitioner was not furnished a copy thereof and was not
called to explain because when the audit was being conducted, it
was then that he went into hiding after he resigned from WUP
without getting any clearance from the school. If only he did not
take flight, he could have stayed and answered the charges.
This, he did not do.

AGUSTIN, E.P. | 278

Finally, petitioners argument that the fact that he was arrested

in Paraaque does not mean he fled because he had no
knowledge that there were warrants for his arrest does not hold
water. It must be stressed that petitioner, after learning that he
was the one being pointed to as the culprit during the conduct of
the external audit, suddenly resigned and left the school without
securing any clearance. He was apprehended only after more
than two years of searching. Jurisprudence has repeatedly
declared that flight is an indication of guilt. The flight of an
accused, in the absence of a credible explanation, would be a
circumstance from which an inference of guilt may be
established 'for a truly innocent person would normally grasp the
first available opportunity to defend himself and to assert his
innocence.'73 Under the circumstances, it is clear that petitioner
tried to evade responsibility for the money that he took. Knowing
fully well that he is the suspect, he suddenly disappeared
without any clearance from the school. He did not even try to
clear his name considering that the external audit was already
on-going when he fled. Such actuation clearly indicates he is
guilty. It does not matter if he does not know about the
warrants for his arrest because his purpose is precisely to avoid
liability for his actions. The explanation proffered by petitioner
that he resigned because of the pressure coming from Dantes,
Manio and Sarmenta who pointed to him as the culprit, is flimsy
and does not deserve any consideration.

minimum, to eight (8) years, eight (8) months and one (1) day
of prision mayor, as maximum.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

Going now to the penalties imposed on petitioner, except for the

penalties in Criminal Cases No. 153-AF (4686-R) and 668-AF
(4690-R), we find them to be in order.
In Criminal Cases No. 153-AF (4686-R) and 668-AF (4690-R),
the amounts stolen were P30,819.00 and P25,668.00,
respectively. Accordingly, the penalties to be imposed shall be
that prescribed in Article 309(1) of the Revised Penal Code which
reads:
ART. 309. Penalties. Any person guilty of theft shall be
punished by:
1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000
pesos but does not exceed 22,000 pesos; but if the value of the
thing stolen exceed the latter amount, the penalty shall be the
maximum period of the one prescribed in this paragraph, and
one year for each additional ten thousand pesos, but the total of
the penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
The penalty imposable is the maximum period of prision mayor
in its minimum and medium periods. Applying the Indeterminate
Sentence Law, the penalty to be imposed in each is anywhere
from two (2) years, four (4) months and one (1) day of prision
correccional to six (6) years of prision correccional, as minimum,
to anywhere from eight (8) years, eight (8) months and one (1)
day of prision mayor to ten (10) years of prision mayor, as
maximum.
WHEREFORE, premises considered, the decision of the Court of
Appeals dated 16 June 2004 in CA-G.R. CR No. 22073 is
AFFIRMED with the MODIFICATION that in each of Criminal
Cases No. 153-AF (4686-R) and 668-AF (4690-R), petitioner is
sentenced to a prison term of four (4) years, nine (9) months
and eleven (11) days of prision correccional, as

EVIDENCE

AGUSTIN, E.P. | 279

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 186497

September 17, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HASANADDIN GUIARA y BANSIL, Accused-Appellant.
DECISION
VELASCO, JR., J.:
The Case
This is an appeal from the September 19, 2008 Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02958 entitled
People of the Philippines v. Hasanaddin Guiara y Bansil which
affirmed the July 18, 2007 Joint Decision2 of Branch 267 of the
Regional Trial Court (RTC) of Pasig City in Criminal Case Nos.
14272-D-TG and 14273-D-TG, finding accused-appellant
Hasanaddin Guiara y Bansil guilty of violations of Sections 5 and
11, Article II of Republic Act No. (RA) 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

On November 29, 2005, accused-appellant was arraigned and

entered a plea of "not guilty" to the charges against him.
At the pre-trial conference, the prosecution and the defense
stipulated on: (1) the identity of accused-appellant; (2) the
jurisdiction of the trial court over the person of accusedappellant and the subject matter of the cases; (3) the date,
place, and fact of the arrest; (4) the authority of the police
officers as members of the Station Anti-Illegal Drugs-Special
Operations Task Force (SAID-SOTF) of the Taguig City Police
Station; (5) the existence of the subject specimens; (6) the fact
that a request has been made by the arresting officers for the
examination of the confiscated items; (7) the fact that the
Forensic Chemist, Police Senior Inspector Maridel Rodis,
examined the specimens and issued a laboratory report thereon;
(8) the fact that the examining forensic chemist had no
knowledge from whom the alleged specimens were taken; and
(9) the fact that the subject specimens tested positive for
methylamphetamine hydrochloride. Hence, after the stipulations
were made, the testimony of the Forensic Chemist was
dispensed with.
Thereafter, trial on the merits ensued.
During the trial, the prosecution presented as their witnesses
PO2 Rolly B. Concepcion and PO2 Ronnie L. Fabroa. On the
other hand, the defense presented as its witnesses accusedappellant, Normina Piang, and Abdul Pattah.
Version of the Prosecution

The Facts
The facts, according to the prosecution, are as follows:
The charge against the accused-appellant stemmed from the
following Information:
Criminal Case No. 14272-D-TG
(Violation of Section 5 [Sale], Article II of R.A. 9165)
That on or about the 24th day of August, 2005, in the City of
Taguig, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there willfully,
unlawfully and knowingly sell, deliver and give away to PO2 Rolly
B. Concepcion, who acted as poseur-buyer, a total of 0.17 gram
of white crystalline substance, which substance was found
positive to the test for Methamphetamine Hydrochloride, also
known as Shabu, a dangerous drug.
Contrary to law.3
Criminal
Case
No.
14273-D-TG
(Violation of Section 11 [Possession], Article II of R.A. 9165)
That on or about the 24th day of August, 2005, in the City of
Taguig, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by
law to possess any dangerous drug, did, then and there willfully,
unlawfully and knowingly possesses and under his custody and
control .23 gram of white crystalline substance contained in one
(1) heat sealed transparent plastic sachet, which substance was
found positive to the test for Methamphetamine Hydrochloride,
also known as "Shabu", a dangerous drug, in violation of the
above-cited law.
Contrary to law.4

EVIDENCE

On August 24, 2005, at about 3 oclock in the afternoon, a

confidential informant arrived at the Taguig City Police Station
and reported the illegal drug peddling activities of one alias
"Mads" on Zamboanga Street, Maharlika Village, Taguig City.
Accordingly, the information was relayed to their Chief P/Insp.
Ronaldo Pamor who then conducted a briefing.
During the briefing, PO2 Rolly B. Concepcion was designated as
the poseur-buyer. He was given a five hundred peso (PhP 500)
bill, which he marked with his initials, "RBC," and photocopied
for record purposes, to be used as the buy-bust money during
the entrapment.
After making the necessary coordination with the Philippine Drug
Enforcement Agency, the police team, which was composed of
P/Insp. Pamor, PO2 Concepcion, PO3 Arnulfo Vicua, PO3 Danilo
Arago, PO3 Santiago Cordova, PO3 Felipe Metrillo, PO2 Ronnie L.
Fabroa, PO2 Remegio Aguinaldo, PO3 Antonio Reyes, and SPO1
Angelito Galang, with the informant, proceeded to their target
area. Upon arriving at the target area, the team members
positioned themselves strategically to observe the transaction,
while PO2 Concepcion and the informant proceeded to the
location of the shabu peddler where the informant introduced
PO2 Concepcion to alias "Mads." He told "Mads" that his friend
wanted to buy PhP 500 worth of shabu. "Mads" then replied,
"Limang-daang piso lang ba? Meron pa ako dito." He then pulled
out two (2) plastic sachets containing white crystalline substance
and gave the smaller packet to PO2 Concepcion. In turn, PO2
Concepcion gave the marked money to "Mads." Thereafter,
"Mads" handed a plastic sachet containing shabu to PO2
Concepcion, who upon receiving the same, executed the prearranged signal, by removing his ballcap, signifying that the
transaction was already consummated. This prompted his team
to rush to their position to assist in the arrest.

AGUSTIN, E.P. | 280

After the apprehension of "Mads," who was later identified as

accused-appellant, the buy-bust money was recovered from the
possession of accused-appellant, as well as another plastic
sachet containing shabu. PO2 Concepcion then marked the
confiscated pieces of evidence for future identification purposes.
After marking, accused-appellant was brought to the police
station.
Upon arrival at the police station, PO2 Concepcion turned over
the confiscated items to the police investigator for the
preparation of the necessary request for examination at the
crime laboratory. Subsequently, the specimens subject of the
buy-bust operation were forwarded to the Philippine National
Police (PNP) Crime Laboratory in Camp Crame, Quezon City.
Police Senior Inspector Maridel C. Rodis, Forensic Chemical
Officer conducted a qualitative examination on the said
specimens. The specimens gave positive result to the tests for
Methamphetamine Hydrochloride, a dangerous drug. He issued
Chemistry Report No. D-959-05 dated August 25, 2005, which
showed the following results:

and forced him to get inside their vehicle. He was then taken to
the SAID-SOTF office at the Taguig police station.
While at the police station, accused-appellant inquired as to the
reason why he was being detained. The police officers did not
respond, instead they told him to call his parents or relatives and
to tell them that he was caught by the police. PO2 Concepcion
extorted him and told him to produce PhP 20,000 or else they
would file a case against him for violation of the dangerous
drugs law.
After having failed to produce the amount that the police were
asking, accused-appellant was taken to the PNP Crime
Laboratory in Camp Crame for drug testing. He was then taken
back to Taguig City and presented for inquest.
The testimony of accused-appellant was corroborated by the
testimonies of Normina Piang and Abdul Pattah to the extent of
the manner in which the arrest of the accused-appellant was
made by the police.

SPECIMEN SUBMITTED:
Ruling of the Trial Court
Two (2) heat-sealed transparent plastic sachets each containing
white crystalline substance having the following markings and
net weights:
A (HBG-1 8-24-05) 0.17 gram
B (HBG-2 8-24-05) 0.23 gram
xxxx
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of any dangerous drugs. x x x
FINDINGS:
Qualitative examination conducted on specimen A and B gave
POSITIVE result to the tests for Methylamphetamine
Hydrochloride, a dangerous drug.
xxxx
CONCLUSION:
Specimen A and B contain Methylamphetamine Hydrochloride, a
dangerous drug.5 x x x
Version of the Defense
On the other hand, accused-appellant interposed the defenses of
denial and frame-up.
He recounted that on August 24, 2005, at around 2:30 in the
afternoon, while he was on his way to a billiard hall, a white
motor vehicle suddenly stopped in front of him on Zamboanga
Street, Maharlika Village, Taguig City. Immediately, three armed
men with guns went out of the vehicle and approached him.
After they introduced themselves as policemen, they held him

EVIDENCE

After trial, the RTC convicted accused-appellant. The dispositive

portion of the Joint Decision reads:
WHEREFORE, in view of the foregoing considerations, the Court
finds accused HASANADDIN GUIARA y Bansil in Criminal Case
No. 14272-D-TG for Violation of Section 5, 1st paragraph, Article
II of Republic Act No. 9165, otherwise known as "The
Comprehensive Drugs Act of 2002", GUILTY beyond reasonable
doubt. Hence, accused Hasanaddin Guiara y Bansil is hereby
sentenced to suffer LIFE IMPRISONMENT and ordered to pay a
fine of FIVE HUNDRED THOUSAND PESOS (PhP500,000.00).
Moreover, accused HASANADDIN GUIARA y Bansil is also found
GUILTY beyond reasonable doubt in Criminal Case No. 14273-DTG for Violation of Section 11, 2nd paragraph, No. 3 Article II of
Republic Act No. 9165, otherwise known as "The Comprehensive
Drugs Act of 2002". And since the quantity of
methylamphetamine hydrochloride (shabu) found in the
possession of the accused is only .23 gram, accused Hasanaddin
Guiara y Bansil is hereby sentenced to suffer imprisonment
ranging from TWELVE (12) YEARS and ONE (1) DAY as minimum
-to- FOURTEEN (14) YEARS and TWENTY ONE (21) DAYS as
maximum. Accused Hasanaddin Guiara y Bansil is further
penalized to pay a fine in the amount of THREE HUNDRED
THOUSAND PESOS (PhP300,000.00).
Accordingly, the Jail Warden of Taguig city Jail where accused
Hasanaddin Guiara y Bansil is presently detained is hereby
ordered to forthwith commit the person of convicted Hasanaddin
Guiara y Bansil to the New Bilibid Prisons (NBP), Bureau of
Corrections in Muntinlupa City, Metro Manila.
Upon the other hand, the shabu contained in two (2) heatsealed transparent plastic sachets with a total weight of 0.40
gram which are the subject matter of the above-captioned
cases, are hereby ordered transmitted and/or submitted to the
custody of the Philippine Drug Enforcement Agency (PDEA)
subject and/or pursuant to existing Rules and Regulations
promulgated thereto for its proper disposition.
Costs de oficio.

AGUSTIN, E.P. | 281

SO ORDERED.6

SO ORDERED.8

On appeal to the CA, accused-appellant disputed the lower

courts decision finding him guilty beyond reasonable doubt of
the crime charged. He raised the issue that the police officers
failed to conduct a legitimate and valid buy-bust operation. He
also questioned whether the chain of custody of the shabu
allegedly recovered from him was properly established arguing
that the police officers failed to follow the established rules
governing custodial procedures in drug cases without any
justification for doing so.

Accused-appellant filed a timely notice of appeal of the CA

Decision.

Ruling of the Appellate Court

Our Ruling

On September 19, 2008, the CA affirmed the judgment of the

lower court. It ruled that all the elements of the crimes charged
were aptly established by the prosecution, including the chain of
custody, to wit:

We sustain accused-appellants conviction.

The foregoing testimony indubitably shows that a transaction

involving shabu between appellant and the poseur-buyer actually
took place. This is important because in prosecutions involving
illegal sale of dangerous drugs, what is material is the proof that
the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti as evidence. The
corpus delicti in this case was sufficiently established with the
presentation of the specimen HBG-1 in court and the Chemistry
Report No. D-959-05 which clearly states that the contents
thereof were shabu.

Accused-appellant attacks the credibility of the police officers

who conducted the buy-bust operation. He argues that the
contradictory testimonies of the police show that no buy-bust
operation was actually carried out and that it was merely
fabricated or concocted by the police officers to maliciously
charge accused-appellant.

xxxx
In the case at bar, appellant was caught in actual possession of
prohibited drugs without any showing that he was duly
authorized by law to possess the same. Having been caught in
flagrante delicto, there is, therefore a prima facie evidence of
animus possidendi on appellants part.
xxxx
On this aspect, [w]e find that the chain of custody of the seized
substance was not broken and that the prosecution was able to
properly identify the same. The confiscated items were marked
by PO2 Concepcion immediately after he arrested appellant.
Moreover, said marked items were the same items which were
submitted to the PNP Crime Laboratory for analysis and
examination, and which was later on found to be positive for
shabu.7
The CA also dismissed the allegation of frame-up saying that the
defense failed to establish any ulterior motive on the part of the
arresting officers in deviation from the legitimate performance of
their duties.
The dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, the Joint Decision of the
Regional Trial Court of Pasig City, Branch 267, in Criminal Case
Nos. 14272-D-TG & 14273-D-TG, promulgated on July 18, 2007,
finding accused-appellant guilty beyond reasonable doubt of
violating Secs. 5 and 11, Art. II of Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002), as amended, is
hereby AFFIRMED and UPHELD.
With costs against the accused-appellant.

EVIDENCE

The Issue
Whether or not the evidence adduced by the prosecution is
sufficient to establish the guilt of the accused beyond reasonable
doubt

Buy-Bust Operation was Legitimate and Valid

We disagree.
In our jurisprudence, a buy-bust operation is a recognized
means of entrapment using such ways and means devised by
peace officers for the purpose of trapping or capturing a
lawbreaker.9 It is legal and has been proved to be an effective
method of apprehending drug peddlers, provided due regard to
constitutional and legal safeguards is undertaken.10
In the prosecution of illegal sale of shabu, the essential elements
have to be established, to wit: (1) the identity of the buyer and
the seller, the object of the sale and the consideration; and (2)
the delivery of the thing sold and the payment therefor.11 What
is material is the proof that the transaction or sale actually took
place, coupled with the presentation in court of the corpus delicti
as evidence. The delivery of the illicit drug to the poseur-buyer
and the receipt by the seller of the marked money successfully
consummate the buy-bust transaction.
In the instant case, the prosecution was able to establish these
elements beyond moral certainty. Accused-appellant sold and
delivered the shabu for PhP 500 to PO2 Concepcion posing as
buyer; the said drug was seized and identified as a prohibited
drug and subsequently presented in evidence; there was actual
exchange of the marked money and contraband; and finally,
accused-appellant was fully aware that he was selling and
delivering a prohibited drug. In fact, PO2 Concepcion testified
thus:
PROSEC. SANTOS: What time did your team arrive at
Maharlika?
A: 5:45 p.m., sir.
PROSEC. SANTOS: In what particular place in
Maharlika did your team go?
A: At Zamboanga Street, Maharlika Village, Taguig
City.

AGUSTIN, E.P. | 282

PROSEC. SANTOS: Upon arrival thereat, tell us

what[,] if any[,] did you observe or see?
A: Upon arrival, sir, we walk towards the basketball
court together with the confidential informant and
readily saw alias "mads", sir.
PROSEC. SANTOS: So, your confidential informant
readily saw alias "mads"?

The foregoing testimony indubitably shows that a transaction

involving shabu actually took place between accused-appellant
and the poseur-buyer. What is more, the corpus delicti in this
case was sufficiently established with the presentation of the
specimen "HBG-1" in court and Chemistry Report No. D-959-05
which clearly states that the contents were shabu.
Likewise, the foregoing testimony also establishes that accusedappellant was indeed found in possession of illegal drugs aside
from what he sold to the poseur-buyer, without showing that
accused-appellant had any authority to possess them.

A: Yes, sir.
PROSEC. SANTOS: After that, when you[r] CI saw this
"mads", what did you do?
A: He talked to alias "mads" and he introduced me as
[a] buyer of shabu.
PROSEC. SANTOS: Will you please repeat to us if
possible[,] in verbatim[,] what your informant told
alias "mads" about you?
A: They talked, sir, and he told him that Im his friend
and Im going to buy shabu worth five hundred pesos
and alias "mads" uttered "limang-daang piso lang ba?
Meron pa ko dito".
PROSEC. SANTOS: Now, after that exchange [of]
words, "limang-daan piso lang ba? Meron pa ko dito",
what happened, Officer?
A: He asked for the five hundred pesos and he
brought out two (2) plastic sachets, he chooses [one]
and [gives] me the plastic sachet with a lesser
contents.

On the other hand, in the prosecution for illegal possession of

dangerous drugs, the following elements must be proved with
moral certainty: (1) that the accused is in possession of the
object identified as a prohibited or regulatory drug; (2) that such
possession is not authorized by law; and (3) that the accused
freely and consciously possessed the said drug.13
It bears stressing that this crime is mala prohibita, and as such,
criminal intent is not an essential element. Further, possession,
under the law, includes not only actual possession, but also
constructive possession. Actual possession exists when the drug
is in the immediate physical possession or control of the
accused. Constructive possession, on the other hand, exists
when the drug is under the dominion and control of the accused
or when he has the right to exercise dominion and control over
the place where it is found.14
Also, the prosecution must prove that the accused had animus
possidendi or the intent to possess the drugs. In U.S. v.
Bandoc,15 the Court ruled that the finding of a dangerous drug in
the house or within the premises of the house of the accused is
prima facie evidence of knowledge or animus possidendi and is
enough to convict in the absence of a satisfactory explanation.16

PROSEC. SANTOS: And how many sachets did this

alias "mads" give you during that time?

In the case at bar, accused-appellant was caught in actual

possession of prohibited drugs without any showing that he was
duly authorized by law to possess the same. Having been caught
in flagrante delicto, there is, therefore, a prima facie evidence of
animus possidendi on accused-appellants part.

A: Only one (1) plastic sachet, sir.

As a matter of fact, the trial court, in disposing the case, said:

PROSEC. SANTOS: So, after that exchange of that

money and commodity has already taken place, what
if any did you do then?

The substance of the prosecutions evidence is to the effect that

accused Hasanaddin Guiara y Bansil was arrested by the police
because of the existence of the shabu he sold to PO2 Rolly B.
Concepcion as well as the recovery of the buy-bust money from
his possession, and the presence of another plastic sachet
containing shabu that was also recovered from his person.

A: I gave the pre-arrange and I saw the immediate

approach of PO2 Ronnie Fabroa, sir.
PROSEC. SANTOS: And what happened?
A: We arrested alias "mads" and I ask for his personal
circumstances and I told him to bring out the
contents of his pockets.
PROSEC. SANTOS: Did this alias "mads" obey your
instructions to bring out the contents of his pockets?
A: Yes, sir, and I recovered the buy-bust money and
another plastic sachet containing suspected shabu.12

EVIDENCE

To emphasize, the prosecution witnesses in the person of PO2

Rolly B. Concepcion and PO2 Ronnie L. Fabroa positively
identified accused Hasanaddin Guiara y Bansil as the person they
apprehended on August 24, 2005 at Zamboanga Street,
Maharlika Village, Taguig City. [They] arrested accused
Hasanaddin B. Guiara because their team was able to procure
shabu from him during the buy-bust operation they purposely
conducted against the aforementioned accused.
The buy-bust money recovered by the arresting officers from the
possession of the accused Hasanaddin Guiara y Bansil as well as
the shabu they were able to purchase from the accused
sufficiently constitute as the very corpus delicti of the crime of
Violation of Section 5, 1st paragraph, Article II of Republic Act
No. 9165, and the other plastic sachet containing shabu that

AGUSTIN, E.P. | 283

was recovered from the accused Guiara similarly constitute as

the corpus delicti of the crime of Violation of Section 11, 2nd
paragraph, No. 3, Article II of Republic Act No. 9165.17 x x x
Clearly, the trial court found that the testimonies of both PO2
Concepcion and PO2 Ronnie L. Fabroa established the existence
of a valid and legitimate buy-bust operation and all the essential
elements of the crimes charged against accused-appellant.
Furthermore, contrary to accused-appellants contentions, the
minor inconsistencies in the testimonies of the police officers are
too insufficient or insubstantial to overturn the judgment of
conviction against him, since those testimonies are consistent on
material points. Time and time again, this Court has ruled that
the witnesses testimonies need only to corroborate one another
on material details surrounding the actual commission of the
crime.18 Questions as to the exact street where the illegal sale
was consummated do not in any way impair the credibility of the
witnesses. To secure a reversal of the appealed judgment, such
inconsistencies should pertain to that crucial moment when the
accused was caught selling shabu, not to peripheral matters.19
It should be noted that in passing upon the credibility of
witnesses, the appellate court generally yields to the judgment
of the trial courts since they are in a better position to decide the
question, having heard the witnesses themselves and observed
their deportment and manner of testifying during the trial.20
Thus, this Court finds no cogent reason to disturb the trial
courts assessment of the credibility of the prosecution
witnesses.
Chain of Custody Was Properly Established
In every prosecution for the illegal sale of prohibited drugs, the
presentation of the drug, i.e., the corpus delicti, as evidence in
court is material.21 In fact, the existence of the dangerous drug
is crucial to a judgment of conviction. It is, therefore,
indispensable that the identity of the prohibited drug be
established beyond doubt. Even more than this, what must also
be established is the fact that the substance bought during the
buy-bust operation is the same substance offered in court as
exhibit. The chain of custody requirement performs this function
in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed.22
To ensure that the chain of custody is established, the
Implementing Rules and Regulations of RA 9165 provide:
SECTION 21. Custody and Disposition of Confiscated,
Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in
the following manner:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy

EVIDENCE

thereof; Provided, that the physical inventory and

photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station
or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that noncompliance with these requirements under justifiable
grounds, as long as the integrity and evidentiary value of
the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items.23 x x
x (Emphasis and underscoring supplied.)1avvphi1
A close reading of the law reveals that it allows certain
exceptions. Thus, contrary to the assertions of accusedappellant, Section 21 need not be followed with pedantic rigor.
Non-compliance with Sec. 21 does not render an accuseds
arrest illegal or the items seized/confiscated from him
inadmissible.24 What is essential is "the preservation of the
integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or
innocence of the accused."25
In the instant case, there was substantial compliance with the
law and the integrity of the drugs seized from accused-appellant
was preserved. The chain of custody of the drugs subject matter
of the case was shown not to have been broken. The factual
milieu of the case reveals that the confiscated items were
marked by PO2 Concepcion immediately after he arrested
accused-appellant. Then, the said marked items were submitted
to the PNP Crime Laboratory for analysis and examination, and
which was later on found to be positive for shabu. PO2
Concepcion testified thus:
PROSEC. SANTOS: Now, you were telling us that your
immediate back up, you saw him rushing to your
place, what[,] if any[,] did your immediate backup do
when he was already near you?
A: We arrested him and I [asked] for his personal
circumstances and marked the evidence I confiscated
from him and the shabu I bought, sir.
PROSEC. SANTOS: You said you marked the shabu
that you bought from him and the shabu that was
confiscated from his possession, tell us, what kind of
marking did you put on the plastic sachet containing
the shabu that you bought from him during that time?
A: HBG-1, the subject of the sale and HBG-2 the
evidence confiscated from his possession.
PROSEC. SANTOS: Now, after you have marked the
shabu or these plastic sachets containing the shabu
that you bought and confiscated from him, what
happened?
A: My companions [approached] us and we brought
alias "mads" to the police station.
xxxx
PROSEC. SANTOS: Now after you have brought him
to your station, what happened to the shabu that you
bought and confiscated from him during that time?

AGUSTIN, E.P. | 284

A: We [turned] it over to the investigator and after

that he prepared a request for laboratory
examination.
PROSEC. SANTOS: So there was already a request for
laboratory examination?
A: Yes, sir.
PROSEC. SANTOS: Now, you said you [turned] it over
to the investigator, who among you transported these
specimen to the crime laboratory for examination?
A: I and the investigator, sir.
PROSEC. SANTOS: So, you said that together with the
investigator, you brought the specimens to the crime
lab?

PROSEC. SANTOS: Why do you say that you could

identify the same?
A: Because there are my initials, sir.
PROSEC. SANTOS: I have here with me two (2)
plastic sachets containing shabu, will you please
carefully examine the same and point us the plastic
sachet containing the shabu that you bought and the
plastic sachet containing the shabu that you
confiscated from the possession of the accused during
that time? For the record, your Honor, the two (2)
plastic sachets are contained in [a] small plastic bag.
Im showing to you these two (2) plastic sachets,
Officer, and please [examine] it and tell us, which one
of them is the subject of the sale and the confiscated
shabu?
A: This one is the subject of the sale, HBG-1.

A: Yes, sir.

INTERPRETER: Witness is referring to Exhibit D-1.

PROSEC. SANTOS: What happened at the crime lab?

A: And HBG-2, this is the plastic sachet confiscated

from the accused.

A: They received
examination.

INTERPRETER: Witness is referring to Exhibit D-2.26

the

request

for

laboratory

PROSEC. SANTOS: The request, how about the

specimens?
A: Together with the specimens, sir.
PROSEC. SANTOS: Do you have any proof to show
that the crime lab received the request and the
specimens?
A: There was, sir.
PROSEC. SANTOS: What is that?
A: The stamp received, sir.
PROSEC. SANTOS: If you will see that document
again, will you be able to identify it?

Moreover, this Court held in Malillin v. People27 that the

testimonies of all persons who handled the specimen are
important to establish the chain of custody. Thus, the
prosecution offered the testimony of PO2 Concepcion, the police
officer who first handled the dangerous drug. The testimony of
Police Senior Inspector Maridel C. Rodis, who handled the
dangerous drug after PO2 Concepcion, was, however, dispensed
with after the stipulations made by both the prosecution and the
defense.
Undoubtedly, therefore, there was an unbroken chain in the
custody of the illicit drug purchased from accused-appellant.
Defenses of Denial and Frame-Up Are Weak
Denial, as a defense, is an inherently weak one28 and has been
viewed by this Court with disdain, for it can easily be concocted
and is a very common line of defense in prosecutions arising
from violations of RA 9165.29 Similarly, the defense of frame-up
is also easily fabricated and commonly used in buy-bust cases.30

A: Yes, sir.
PROSEC. SANTOS: Im showing to you Exhibit B, this
is a request for laboratory examination, will you
please examine the same and tell us the proof of the
receipt of the request and the specimens?
A: It was recorded by PO1 Calimag, sir.
PROSEC. SANTOS: For the record, your Honor, the
witness is referring to Exhibit "B-2", your Honor. Now,
Officer, if you will see again the shabu that you
bought and confiscated from the accused, will you be
able to identify it?

In order for the Court to appreciate such defenses, there must

be clear and convincing evidence to prove such defense because
in the absence of any intent on the part of the police authorities
to falsely impute such crime against accused-appellant, the
presumption of regularity in the performance of duty stands.
In the case at bar, the defense failed to show any evidence of ill
motive on the part of the police officers. Even accused-appellant
himself declared that he did not know any of the police officers
who arrested him. During his direct examination, he testified,
thus:
Q : While walking along Zamboanga Street going to
the billiard hall, what happened?

A: Yes, sir.

EVIDENCE

AGUSTIN, E.P. | 285

A : A white Adventure blocked my way, sir.

Q : And after this vehicle blocked your way, what
happened, Mr. Witness?
A : Three men in civilian clothes alighted from the
vehicle and approached me. They held me and forced
me to board their vehicle.
Q : Do you know any of the three individuals who got
out and tried to force you inside the vehicle?
A : None, sir.
ATTY. GARLITOS : Did they tell you the reason why
you are being forcibly taken inside the vehicle?
A : No sir.
Q : Did they introduce themselves to you?
A : They introduced themselves as policemen, sir.31
Likewise, the trial court held:
The testimony of PO2 Rolly B. Concepcion that was corroborated
by PO2 Ronnie L. Fabroa, who have not shown and displayed
any ill motive to arrest the accused is sufficient enough to
convict the accused of the crimes charged against him. x x x As
law enforcers, their narration of the incident is worthy of belief
and as such they are presumed to have performed their duties in
a regular manner, in the absence of any evidence to the
contrary. To stress x x x testimony of arresting officers, with no
motive or reason to falsely impute a serious charge against the
accused is credible.32
Thus, the categorical statements of the prosecution witnesses
must prevail over the bare denials of the accused.33 Denial, if
unsubstantiated by clear and convincing evidence, is a negative
and self-serving evidence which deserves no weight in law and
cannot be given greater evidentiary value over the testimony of
the credible witnesses who testify on affirmative matters.34
Therefore, this Court upholds the presumption of regularity in
the performance of official duties and finds that the prosecution
has discharged its burden of proving the guilt of accusedappellant beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED. The CA Decision in
CA-G.R. CR HC No. 02958 finding accused-appellant Hasanaddin
Guiara guilty of the crimes charged is AFFIRMED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

EVIDENCE

AGUSTIN, E.P. | 286

Republic of the Philippines

SUPREME COURT
Manila
A.M. No. 01-7-01-SC

July 17, 2001

RULES ON ELECTRONIC EVIDENCE

Acting on the Memorandum dated 18 June 2001 of the
Committee on the Revision of the Rules of Court to Draft the
Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules
on Electronic Evidence for this Court's consideration and
approval, the Court Resolved to APPROVED the same.
The Rules on Electronic Evidence shall apply to cases pending
after their effectivity. These Rules shall take effect on the first
day of August 2001 following thier publication before the 20th of
July in two newspapers of general circulation in the Philippines
17th July 2001.
RULES ON ELECTRONIC EVIDENCE
Rule 1
COVERAGE
Section 1. Scope. Unless otherwise provided herein, these
Rules shall apply whenever an electronic document or electronic
data message, as defined in Rule 2 hereof, is offered or used in
evidence.
Section 2. Cases covered. These Rules shall apply to all civil
actions and proceedings, as well as quasi-judicial and
administrative cases.
Section 3. Application of other rules on evidence. In all
matters not specifically covered by these Rules, the Rules of
Court and pertinent provisions of statutes containing rules on
evidence shall apply.
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. For purposes of these Rules,
the following terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a
system capable of generating a secure key pair,
consisting of a private key for creating a digital
signature, and a public key for verifying the digital
signature.
(b) "Business records" include records of any
business,
institution,
association,
profession,
occupation, and calling of every kind, whether or not
conducted for profit, or for legitimate or illegitimate
purposes.
(c) "Certificate" means an electronic document issued
to support a digital signature which purports to
confirm the identity or other significant characteristics
of the person who holds a particular key pair.

EVIDENCE

(d) "Computer" refers to any single or interconnected

device or apparatus, which, by electronic, electromechanical or magnetic impulse, or by other means
with the same function, can receive, record, transmit,
store, process, correlate, analyze, project, retrieve
and/or produce information, data, text, graphics,
figures, voice, video, symbols or other modes of
expression or perform any one or more of these
functions.
(e) "Digital signature" refers to an electronic signature
consisting of a transformation of an electronic
document or an electronic data message using an
asymmetric or public cryptosystem such that a person
having the initial untransformed electronic document
and the signer's public key can accurately determine:
i. whether the transformation was created
using the private key that corresponds to
the signer's public key; and
ii. whether the initial electronic document
had been altered after the transformation
was made.
(f) "Digitally signed" refers to an electronic document
or electronic data message bearing a digital signature
verified by the public key listed in a certificate.
(g) "Electronic data message" refers to information
generated, sent, received or stored by electronic,
optical or similar means.
(h) "Electronic document" refers to information or the
representation of information, data, figures, symbols
or other modes of written expression, described or
however represented, by which a right is established
or an obligation extinguished, or by which a fact may
be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents
and any print-out or output, readable by sight or
other means, which accurately reflects the electronic
data message or electronic document. For purposes
of these Rules, the term "electronic document" may
be used interchangeably with "electronic data
message".
(i) "Electronic key" refers to a secret code which
secures and defends sensitive information that
crosses over public channels into a form decipherable
only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive
mark, characteristic and/or sound in electronic form,
representing the identity of a person and attached to
or logically associated with the electronic data
message or electronic document or any methodology
or procedure employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or approving an
electronic data message or electronic document. For
purposes of these Rules, an electronic signature
includes digital signatures.

AGUSTIN, E.P. | 287

(k) "Ephemeral electronic communication" refers to

telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of
which is not recorded or retained.

by the same impression as the original, or from the same matrix,

or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately
reproduces the original, such copies or duplicates shall be
regarded as the equivalent of the original.

(l) "Information and communication system" refers to

a system for generating, sending, receiving, storing or
otherwise processing electronic data messages or
electronic documents and includes the computer
system or other similar devices by or in which data
are recorded or stored and any procedure related to
the recording or storage of electronic data messages
or electronic documents.

Notwithstanding the foregoing, copies or duplicates shall not be

admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity
of the original; or
(b) in the circumstances it would be unjust or
inequitable to admit the copy in lieu of the original.

(m) "Key pair" in an asymmetric cryptosystem refers

to the private key and its mathematically related
public key such that the latter can verify the digital
signature that the former creates.

Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

(n) "Private key" refers to the key of a key pair used

to create a digital signature.

Section 1. Burden of proving authenticity. The person seeking

to introduce an electronic document in any legal proceeding has
the burden of proving its authenticity in the manner provided in
this Rule.

(o) "Public key" refers to the key of a key pair used to

verify a digital signature.
Section 2. Construction. These Rules shall be liberally
construed to assist the parties in obtaining a just, expeditious,
and inexpensive determination of cases.
The interpretation of these Rules shall also take into
consideration the international origin of Republic Act No. 8792,
otherwise known as the Electronic Commerce Act.
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional equivalent of
paper-based documents. Whenever a rule of evidence refers to
the term writing, document, record, instrument, memorandum
or any other form of writing, such term shall be deemed to
include an electronic document as defined in these Rules.
Section 2. Admissibility. An electronic document is admissible
in evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.
Section 3. Privileged communication. The confidential
character of a privileged communication is not lost solely on the
ground that it is in the form of an electronic document.
Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document. An electronic
document shall be regarded as the equivalent of an original
document under the Best Evidence Rule if it is a printout or
output readable by sight or other means, shown to reflect the
data accurately.
Section 2. Copies as equivalent of the originals. When a
document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced

EVIDENCE

Section 2. Manner of authentication. Before any private

electronic document offered as authentic is received in evidence,
its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by
the person purported to have signed the same;
(b) by evidence that other appropriate security
procedures or devices as may be authorized by the
Supreme Court or by law for authentication of
electronic documents were applied to the document;
or
(c) by other evidence showing its integrity and
reliability to the satisfaction of the judge.
Section 3. Proof of electronically notarized document. A
document electronically notarized in accordance with the rules
promulgated by the Supreme Court shall be considered as a
public document and proved as a notarial document under the
Rules of Court.
Rule 6
ELECTRONIC SIGNATURES
Section 1. Electronic signature. An electronic signature or a
digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional equivalent
of the signature of a person on a written document.
Section 2. Authentication of electronic signatures. An
electronic signature may be authenticated in any of the following
manner:
(a) By evidence that a method or process was utilized
to establish a digital signature and verify the same;
(b) By any other means provided by law; or

AGUSTIN, E.P. | 288

(c) By any other means satisfactory to the judge as

establishing the genuineness of the electronic
signature.
Section 3. Disputable presumptions relating to electronic
signatures. Upon the authentication of an electronic signature,
it shall be presumed that:

computer programs or software used as well as

programming errors;
(d) The familiarity of the witness or the person who
made the entry with the communication and
information system;

(a) The electronic signature is that of the person to

whom it correlates;

(e) The nature and quality of the information which

went into the communication and information system
upon which the electronic data message or electronic
document was based; or

(b) The electronic signature was affixed by that

person with the intention of authenticating or
approving the electronic document to which it is
related or to indicate such person's consent to the
transaction embodied therein; and

(f) Other factors which the court may consider as

affecting the accuracy or integrity of the electronic
document or electronic data message.

(c) The methods or processes utilized to affix or verify

the electronic signature operated without error or
fault.

Section 2. Integrity of an information and communication

system. In any dispute involving the integrity of the
information and communication system in which an electronic
document or electronic data message is recorded or stored, the
court may consider, among others, the following factors:

4. Disputable presumptions relating to digital

signatures. Upon the authentication of a digital signature, it
Section

shall be presumed, in addition to those mentioned in the

immediately preceding section, that:
(a) The information contained in a certificate is
correct;
(b) The digital signature was created during the
operational period of a certificate;
(c) No cause exists to render a certificate invalid or
revocable;

(d) The message associated with a digital signature

has not been altered from the time it was signed;
and,
(e) A certificate had been issued by the certification
authority indicated therein.
Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Section 1. Factors for assessing evidentiary weight. In
assessing the evidentiary weight of an electronic document, the
following factors may be considered:
(a) The reliability of the manner or method in which it
was generated, stored or communicated, including
but not limited to input and output procedures,
controls, tests and checks for accuracy and reliability
of the electronic data message or document, in the
light of all the circumstances as well as any relevant
agreement;
(b) The reliability of the manner in which its originator
was identified;
(c) The integrity of the information and
communication system in which it is recorded or
stored, including but not limited to the hardware and

EVIDENCE

(a) Whether the information and communication

system or other similar device was operated in a
manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of the
information and communication system;
(b) Whether the electronic document was recorded or
stored by a party to the proceedings with interest
adverse to that of the party using it; or
(c) Whether the electronic document was recorded or
stored in the usual and ordinary course of business by
a person who is not a party to the proceedings and
who did not act under the control of the party using
it.
Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY
RULE
Section 1. Inapplicability of the hearsay rule. A
memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical or
other similar means at or near the time of or from transmission
or supply of information by a person with knowledge thereof,
and kept in the regular course or conduct of a business activity,
and such was the regular practice to make the memorandum,
report, record, or data compilation by electronic, optical or
similar means, all of which are shown by the testimony of the
custodian or other qualified witnesses, is excepted from the rule
on hearsay evidence.
Section 2. Overcoming the presumption. The presumption
provided for in Section 1 of this Rule may be overcome by
evidence of the untrustworthiness of the source of information
or the method or circumstances of the preparation, transmission
or storage thereof.
Rule 9
METHOD OF PROOF

AGUSTIN, E.P. | 289

Section 1. Affidavit evidence. All matters relating to the

admissibility and evidentiary weight of an electronic document
may be established by an affidavit stating facts of direct personal
knowledge of the affiant or based on authentic records. The
affidavit must affirmatively show the competence of the affiant
to testify on the matters contained therein.
Section 2. Cross-examination of deponent. The affiant shall
be made to affirm the contents of the affidavit in open court and
may be cross-examined as a matter of right by the adverse
party.

Section 1. Applicability to pending cases. These Rules shall

apply to cases pending after their effectivity.
Section 2. Effectivity. These Rules shall take effect on the
first day of August 2001 following their publication before the
20th of July 2001 in two newspapers of general circulation in the
Philippines.

Rule 10
EXAMINATION OF WITNESSES
Section 1. Electronic testimony. After summarily hearing the
parties pursuant to Rule 9 of these Rules, the court may
authorize the presentation of testimonial evidence by electronic
means. Before so authorizing, the court shall determine the
necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstances,
including the protection of the rights of the parties and
witnesses concerned.
Section 2. Transcript of electronic testimony. When
examination of a witness is done electronically, the entire
proceedings, including the questions and answers, shall be
transcribed by a stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as correct the
transcript done by him. The transcript should reflect the fact that
the proceedings, either in whole or in part, had been
electronically recorded.
Section 3. Storage of electronic evidence. The electronic
evidence and recording thereof as well as the stenographic notes
shall form part of the record of the case. Such transcript and
recording shall be deemed prima facie evidence of such
proceedings.
Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL
EVIDENCE
Section 1. Audio, video and similar evidence. Audio,
photographic and video evidence of events, acts or transactions
shall be admissible provided it shall be shown, presented or
displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some
other person competent to testify on the accuracy thereof.
Section 2. Ephemeral electronic communications. Ephemeral
electronic communications shall be proven by the testimony of a
person who was a party to the same or has personal knowledge
thereof. In the absence or unavailability of such witnesses, other
competent evidence may be admitted.
A recording of the telephone conversation or ephemeral
electronic communication shall be covered by the immediately
preceding section.
If the foregoing communications are recorded or embodied in an
electronic document, then the provisions of Rule 5 shall apply.
Rule 12
EFFECTIVITY

EVIDENCE

AGUSTIN, E.P. | 290

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 06-11-5-SC
(2 October 2007)

Associate Justice

[sgd.]
ANTONIO EDUARDO B.
NACHURA
Associate Justice

[sgd.]
RUBEN T. REYES
Associate Justice

RULE ON DNA EVIDENCE

RULE ON DNA EVIDENCE
RESOLUTION
Acting on the recommendation of the Chairperson and Members
of the Subcommittee on Evidence submitting for the Courts
consideration and approval the proposed Rule on DNA Evidence,
the Court Resolved to APPROVE the same.
This Resolution shall take effect on October 15, 2007 following
its publication in a newspaper of general circulation.

SECTION 1. Scope. This Rule shall apply whenever DNA

evidence, as defined in Section 3 hereof, is offered, used, or
proposed to be offered or used as evidence in all criminal and
civil actions as well as special proceedings.
Sec. 2. Application of other Rules on Evidence. In all
matters not specifically covered by this Rule, the Rules of Court
and other pertinent provisions of law on evidence shall apply.
Sec. 3. Definition of Terms. For purposes of this Rule, the
following terms shall be defined as follows:

October 2, 2007.
[sgd.]
RENATO S. PUNO
Chief Justice

a.

[sgd.]
LEONARO A.
QUISUMBING
Associate Justice

[sgd.]
CONSUELO YNARESSANTIAGO
Associate Justice

b.

[sgd.]
ANGELINA SANDOVALGUTIERREZ
Associate Justice

[sgd.]
ANTONIO T. CARPIO
Associate Justice

d.

c.

e.
[sgd.]
MA. ALICIA AUSTRIAMARTINEZ
Associate Justice

[sgd.]
RENATO C. CORONA
Associate Justice

[sgd.]
CONCHITA CARPIO
MORALES
Associate Justice

[sgd.]
ADOLFO S. AZCUNA
Associate Justice

[sgd.]
DANTE O. TINGA
Associate Justice

[sgd.]
MINITA V. CHICONAZARIO
Associate Justice

[sgd.]
CANCIO C. GARCIA
Associate Justice

[sgd.]
PRESBITERO J.
VELASCO, JR.

EVIDENCE

f.

Biological sample means any organic material

originating from a persons body, even if found in
inanimate objects, that is susceptible to DNA testing.
This includes blood, saliva and other body fluids,
tissues, hairs and bones;
DNA means deoxyribonucleic acid, which is the
chain of molecules found in every nucleated cell of
the body. The totality of an individuals DNA is unique
for the individual, except identical twins;
DNA evidence constitutes the totality of the DNA
profiles, results and other genetic information directly
generated from DNA testing of biological samples;
DNA profile means genetic information derived from
DNA testing of a biological sample obtained from a
person, which biological sample is clearly identifiable
as originating from that person;
DNA testing means verified and credible scientific
methods which include the extraction of DNA from
biological samples, the generation of DNA profiles and
the comparison of the information obtained from the
DNA testing of biological samples for the purpose of
determining, with reasonable certainty, whether or
not the DNA obtained from two or more distinct
biological samples originates from the same person
(direct identification) or if the biological samples
originate from related persons (kinship analysis); and
Probability of Parentage means the numerical
estimate for the likelihood of parentage of a putative
parent compared with the probability of a random
match of two unrelated individuals in a given
population.

Sec. 4. Application for DNA Testing Order. The

appropriate court may, at any time, either motu proprio or on
application of any person who has a legal interest in the matter
in litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the
following:
a.
b.

A biological sample exists that is relevant to the case;

The biological sample: (i) was not previously
subjected to the type of DNA testing now requested;

AGUSTIN, E.P. | 291

c.
d.
e.

or (ii) was previously subjected to DNA testing, but

the results may require confirmation for good
reasons;
The DNA testing uses a scientifically valid technique;
The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and
The existence of other factors, if any, which the court
may consider as potentially affecting the accuracy of
integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a

prior court order, at the behest of any party, including law
enforcement agencies, before a suit or proceeding is
commenced.

d.

The provisions of the Rules of Court concerning the appreciation

of evidence shall apply suppletorily.
Sec. 8. Reliability of DNA Testing Methodology. In
evaluating whether the DNA testing methodology is reliable, the
court shall consider the following:
a.

Sec. 5. DNA Testing Order. If the court finds that the

requirements in Section 4 hereof have been complied with, the
court shall
a.
b.

c.

Order, where appropriate, that biological samples be

taken from any person or crime scene evidence;
Impose reasonable conditions on DNA testing
designed to protect the integrity of the biological
sample, the testing process and the reliability of the
test results, including the condition that the DNA test
results shall be simultaneously disclosed to parties
involved in the case; and
If the biological sample taken is of such an amount
that prevents the conduct of confirmatory testing by
the other or the adverse party and where additional
biological samples of the same kind can no longer be
obtained, issue an order requiring all parties to the
case or proceedings to witness the DNA testing to be
conducted.

b.
c.
d.
e.
f.

Sec. 6. Post-conviction DNA Testing. Post-conviction DNA

testing may be available, without need of prior court order, to
the prosecution or any person convicted by final and executory
judgment provided that (a) a biological sample exists, (b) such
sample is relevant to the case, and (c) the testing would
probably result in the reversal or modification of the judgment of
conviction.
Sec. 7. Assessment of probative value of DNA evidence.
In assessing the probative value of the DNA evidence presented,
the court shall consider the following:
a.
b.

c.

The chair of custody, including how the biological

samples were collected, how they were handled, and
the possibility of contamination of the samples;
The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and
compliance with the scientifically valid standards in
conducting the tests;
The forensic DNA laboratory, including accreditation
by any reputable standards-setting institution and the

EVIDENCE

The falsifiability of the principles or methods used,

that is, whether the theory or technique can be and
has been tested;
The subjection to peer review and publication of the
principles or methods;
The general acceptance of the principles or methods
by the relevant scientific community;
The existence and maintenance of standards and
controls to ensure the correctness of data generated;
The existence of an appropriate reference population
database; and
The general degree of confidence attributed to
mathematical calculations used in comparing DNA
profiles and the significance and limitation of
statistical calculations used in comparing DNA
profiles.

Sec. 9. of DNA Testing Results. In evaluating the results of

DNA testing, the court shall consider the following:
a.

An order granting the DNA testing shall be immediately

executory and shall not be appealable. Any petition for certiorari
initiated therefrom shall not, in any way, stay the
implementation thereof, unless a higher court issues an
injunctive order. The grant of DNA testing application shall not
be construed as an automatic admission into evidence of any
component of the DNA evidence that may be obtained as a
result thereof.

qualification of the analyst who conducted the tests.

If the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and
credibility shall be properly established; and
The reliability of the testing result, as hereinafter
provided.

b.
c.

The evaluation of the weight of matching DNA

evidence or the relevance of mismatching DNA
evidence;
The results of the DNA testing in the light of the
totality of the other evidence presented in the case;
and that
DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-paternity. If
the value of the Probability of Paternity is less than
99.9%, the results of the DNA testing shall be
considered as corroborative evidence. If the value of
the Probability of Paternity is 99.9% or higher there
shall be a disputable presumption of paternity.

Sec. 10. Post-conviction DNA Testing Remedy if the

Results Are Favorable to the Convict. The convict or the
prosecution may file a petition for a writ of habeas corpus in the
court of origin if the results of the post-conviction DNA testing
are favorable to the convict. In the case the court, after due
hearing finds the petition to be meritorious, if shall reverse or
modify the judgment of conviction and order the release of the
convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or
the Supreme Court, or with any member of said courts, which
may conduct a hearing thereon or remand the petition to the
court of origin and issue the appropriate orders.
Sec. 11. Confidentiality. DNA profiles and all results or
other information obtained from DNA testing shall be
confidential. Except upon order of the court, a DNA profile and
all results or other information obtained from DNA testing shall

AGUSTIN, E.P. | 292

only be released to any of the following, under such terms and

conditions as may be set forth by the court:
a.
b.
c.
d.
e.

Person from whom the sample was taken;

Person from whom the sample was taken;
Lawyers of private complainants in a criminal action;
Duly authorized law enforcement agencies; and
Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any

information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein
such DNA evidence was offered, presented or sought to be
offered and presented.
Where the person from whom the biological sample was taken
files a written verified request to the court that allowed the DNA
testing for the disclosure of the DNA profile of the person and all
results or other information obtained from the DNA testing, he
same may be disclosed to the persons named in the written
verified request.
Sec. 12. Preservation of DNA Evidence. The trial court shall
preserve the DNA evidence in its totality, including all biological
samples, DNA profiles and results or other genetic information
obtained from DNA testing. For this purpose, the court may
order the appropriate government agency to preserve the DNA
evidence as follows:
a.

In criminal cases:
i.
ii.

a.

for not less than the period of

time that any person is under
trial for an offense; or
in case the accused is serving
sentence, until such time as the
accused
has
served
his
sentence;

In all other cases, until such time as the decision in

the case where the DNA evidence was introduced has
become final and executory.

The court may allow the physical destruction of a biological

sample before the expiration of the periods set forth above,
provided that:
a.
b.

A court order to that effect has been secured; or

The person from whom the DNA sample was obtained
has consented in writing to the disposal of the DNA
evidence.

Sec. 13. Applicability to Pending Cases. Except as provided

in Section 6 and 10 hereof, this Rule shall apply to cases
pending at the time of its effectivity.
Sec. 14. Effectivity. This Rule shall take effect on October 15,
2007, following publication in a newspaper of general circulation.

EVIDENCE

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