Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVSION

PEOPLE OF THE PHILIPPINES, G.R. No. 178301

Plaintiff/Appellee,
Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
ROLANDO Botong MALIBIRAN NACHURA, and
Accused, PERALTA, JJ.

and BEVERLY TIBO-TAN, Promulgated:

Accused/Appellant. April 24, 2009
x----------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ:

For review is the November 13, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R.
CR No. 02167 which affirmed the Joint Decision[2] dated September 23, 2003 of the
Regional Trial Court (RTC), Special Court for Heinous Crimes, Branch 156, of Pasig City,
Metro Manila, finding Rolando Botong Malibiran (Rolando) and Beverly Tibo-Tan
(appellant) guilty of Murder and Parricide, respectively, and sentencing them to suffer the
penalty of reclusion perpetua.

The conviction arose from the death of Reynaldo Tan (Reynaldo) on February 5,
1995. The antecedents that led to Reynaldo's death, however, go way back in the 70's when
Reynaldo left his common-law wife, Rosalinda Fuerzas (Rosalinda), and their two (2)
children, Jessie and Reynalin, in Davao, and went to Manila to seek greener
pastures. While in Manila, Reynaldo met and had a relationship with appellant. They
eventually married in 1981. Reynaldo and appellant begot three (3) children Renevie, Jag-
Carlo and Jay R.

In 1984, Reynaldo's and Rosalinda's paths crossed again and they resumed their
relationship. This led to the souring of Reynaldo's relationship with appellant; and in 1991,
Reynaldo moved out of the conjugal house and started living again with Rosalinda,
although Reynaldo maintained support of and paternal ties with his children.

On that fateful day of February 5, 1995, Reynaldo and appellant were in Greenhills with
their children for their usual Sunday gallivant. After finishing lunch at the Kimpura
restaurant, the family separated at around 2:00 o'clock in the afternoon to do some
shopping. Later, they regrouped and purchased groceries at Unimart. At around 4:00
o'clock in the afternoon, the family stepped out of the shopping mall and Reynaldo
proceeded to the parking lot to get his red Honda Accord, while the rest of his family
stayed behind and waited. Immediately thereafter, the family heard an explosion coming
from the direction where Reynaldo parked his car. Appellant and Renevie got curious and
proceeded to the parking lot. There, they saw the Honda Accord burning, with Reynaldo
lying beside the driver's seat, burning, charred and bleeding profusely. A taxi driver named
Elmer Paug (Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was then
rushed to the Cardinal Santos Medical Hospital where he eventually died because of the
severe injuries he sustained.[3] The underlying cause of his death was Multiple Fracture &
Multiple Vascular Injuries Secondary to Blast Injury.[4]

An investigation was conducted by the police after which two separate Informations
for Murder and Parricide, dated September 10, 1997, were filed against appellant, Rolando
and one Oswaldo Banaag (Oswaldo).

The Information in Criminal Case No. 113065-H accused Rolando and Oswaldo of
the crime of Murder, to wit:

On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of this
Honorable Court, the accused, conspiring and confederating with Beverly Tibo-Tan, and
three other individuals whose identities are still unknown, did then and there willfully,
unlawfully, and feloniously, with intent to kill, treachery, evidence (sic) premeditation and
with the use of explosion, plan, plant the explosive, and kill the person of Reynaldo C. Tan,
by placing said grenades on the drivers side of his car, and when said victim opened his car,
an explosion happened, thereby inflicting upon the latter mortal wound which was the
direct and immediate cause of his death.

The accused Oswaldo, without having participated in said crime of murder as principal, did
and there willfully, unlawfully and feloniously take part, as an accomplice, in its
commission, by cooperating in the execution of the offense by previous and simultaneous
acts.

Contrary to law.[5]

The Information in Criminal Case No. 113066-H accused appellant of the crime of
Parricide, to wit:

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

Contrary to law.[6]

Rolando and appellant pleaded not guilty on arraignment.[7] Their co-accused, Oswaldo,
was later discharged and utilized as one of the prosecution witnesses.

The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer Paug, Police
Inspector Wilson Lachica, Supervising Investigating Agent Reynaldo Olasco, Rosalinda
Fuerzas, Janet Pascual (Janet), and Oswaldo, as its witnesses.

For its part, the defense presented the following witnesses, namely: Renevie Tan, Romulo
Bruzo (Romulo), Tessie Luba, Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio
Dacalanio and accused Rolando. Appellant did not testify in her behalf.

The RTC summed up the testimonies, as follows:

THE EVIDENCE FOR THE PROSECUTION

1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved
to Manila from Davao in 1985 to study at the instance of his father Reynaldo
and to enable then to bring back time that had been lost since his father left his
mother Rosalinda and the latters children in Davao (TSN, Jan. 27, p.14); In
1991 Reynaldo moved to their house because his relationship with Beverly was
worsening, and to exacerbate matters, Beverly had then a lover named Rudy
Pascua or Pascual, a contractor for the resthouse of Reynaldo. Reynaldo and
Beverly were then constantly quarreling over money (TSN, February 10, 1999,
pp. 28-29); Jessie had heard the name of Rolando Malibiran sometime in 1994
because one day, Reynaldo came home before dinner feeling mad since he
found Rolando Malibiran inside the bedroom of Beverly at their White Plains
residence; Reynaldo had his gun with him at the time but Malibiran ran away
(TSN, January 27, 1999, pp. 19-21). He eventually came to learn about more
details on Rolando Malibiran from Oswaldo Banaag, the family driver
of Beverly who was in the house at White Plains at the time of the incident
(Ibid, p. 22). One night in December of the same year (1994) Jessie overheard
Reynaldo talking to Beverly over the phone, with the latter fuming mad. After
the phone conversation he asked his father what happened because the latter
was already having an attack of hypertension and his father told him that
Beverly threatened him and that he, (Reynaldo) will not benetit from his money
if he will continue his move for separation (p. 40 ibid). This threat was taped by
Reynaldo in his conversation with Beverly (Exh. B) Jessie himself has received
threat of his life over the phone in 1989 (p. 30 ibid).

At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie
testified on the emotional state of his mother Rosalinda while in said Hospital;
that she was continuously crying while she was talking to Jessies uncle. When
asked where Beverly was and her emotional state, he said that Beverly was also
at the lounge of the said hospital, sometimes she is seated and then she would
stand up and then sit again and then stand up again. He did not see her cry hindi
ko po syang nakitang umiyak (pp. 52-23 ibid). When asked if his father had
enemies when he was alive, he said he knows of no one (p.54 ibid). Jessie was
informed by his mother (Rosalinda) few months after the death of Reynaldo that
there was a letter by Rosalinda addressed to his uncle which stated that if
something happened to him, Beverly has a hand in it (p. 56 ibid, Exh. D Letter
dated March 24, 1999)

On cross examination, he admitted having gone to Mandaluyong City Jail and

talked with Oswaldo Banaag about latters claim that both accused have planned
to kill his father. When asked if he knows the consequences if Beverly is
convicted, on the matter of Conjugal Partition of Property, Jessie knows
that Beverlys share would be forfeited. Counsel confirmed Jessies request of
whatever property of his father remaining shall shared equally by the legitimate
and illegitimate children. Thus, Jessie confirmed as the agreement between
them (p. 28, March 24, 1999 TSN).

2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at

the entrance door of the grocery of Unimart testified that he can duplicate any
key of any car in five (5) minutes. And that he is accessible to any one passing
to Greenhills Shopping Complex (p. 45, March 24, 1999 TSN). The Honda Car
representative on the other hand testified that the Honda Accord of the deceased
has no alarm, that the Honda Accord key can be duplicated without
difficulty. And the keyless entry device of the said vehicle can be duplicated (pp.
46-47 ibid, Stipulation. Order p. 335 record Vol. 1).

3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the
Eastern Police District, and the Police Officer who conducted the post aftermath
report of the incident whose skills as an expert was uncontroverted, testified that
the perpetrator knew who the intended vicitim was and has reliable information
as to his position when opening the vehicle. If the intended victim does not
usually drive and usually sits on the rear portion of the vehicle (p. 49, April 14,
1999 TSN) Inspector Dollesins conclusion states that the device (bomb) was
placed in front of the vehicle in between the drivers seat and the front door
because the perpetrator had information about the victims movements,
otherwise he could have placed the device underneath the vehicle, in the rear
portion of the vehicle or in any part thereof (p. 53 ibid).He testified that persons
who have minimal knowledge can set up the explosive in the car in five (5)
minutes (p. 65 ibid). The explosion will commence at about 4-7 seconds (p. 66
ibid).

4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he

was just dropping a passenger to Greenhills Shopping Complex when he heard
a loud explosion at the parking level. Being curious of the incident he hurriedly
went out to look for a parking, then proceeded to the area where the explosion
occurred. He saw a man wearing a shirt and short who is about to give
assistance to a man who was a down on the ground bloodied. Finding that the
man could not do it on his own, Elmer rushed through to give aid. He held both
arms of the victim, grabbed him in the wrists and dragged him out and brought
him farther to the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the
pavement has burnt fingers and hair, chest bloodied and skin already sticking to
Elmers clothes (p. 8 Ibid). He noticed two women at about two armlength from
the car where he was. The younger woman shouted Daddy, Daddy, kaya mo
iyan. She was crying had wailing (p. 10 ibid). He said that the older woman
gestured her left hand exclaimed in a not so loud voice wala bang tutulong sa
amin? while her right hand clutched her shoulder bag (p. 11 ibid). When asked
if the older woman appears to be alarmed, Elmer testified that he cannot say,
and said she looked normal; he did not notice her crying. Neither of the two
female rendered assistance to drag the victim, they just followed him when he
pulled him out. The older woman never touched the victim. (p. 12
ibid). Considering that his Taxi is quite far where the victim was lying, he
flagged a taxi, and the victim was brought to Cardinal Santos Hospital (pp. 15-
16 ibid).

On cross examination, he was asked what the meaning of normal is, and he said
natural Parang walang nangyari It looks like nothing happened (p. 42 ibid). Her
was uncertain as to whether the two females joined the deceased in the taxi cab
(p. 43) as he left.

5. Police Inspector Wilson Lachica testified that he was the police officer who
investigated the case. In the Cardinal Santos Hospital he was able to interview
Beverly Tan. He asked her name, address, name of the victim, how the incident
happened and who their companions were. She answered those questions in a
calm manner (p. 13, Sept. 21, 1999 TSN). As per his observation which was
told to his superiors, he has not seen remorse on the part of the victim, (meaning
the wife) for an investigator that is unusual. Based on his more than six years of
experience as an investigator, whenever a violent crime happened, usually those
relatives and love ones appears hysterical, upset and restless. Her reaction at the
time according to him is not normal, considering that the victim is her
husband. He interviewed persons close to the victim even at the wake at Paz
Funeral in Quezon City. He was able to interview the daughter of the lady-
accused; the other lady and family or relatives of the victim, the same with the
driver of the lady accused. He came to know the identity of the policeman
linked with the lady accused, named Rolando Malibiran. He testified that he
obtained the information that he desired from the widow nonchalantly and
marked with blithe unconcern, which in his observation is unusual since she is
supposed to be the one who would diligently push through in the
investigation. When asked the level of interest as regards accused Malibiran,
witness testified that because of the manner of the commission of the crime
through the use of explosives, only a trained person can do that job (pp. 15-16
ibid).

6. Supervising Investigating Agent Reynaldo Olasco testified that his only

observation on the demeanor of Beverly Tan is that she did not give her
statement readily without the assistance of her counsel which for the investigator
is quite irregular. Considering that she is the legal wife, he could not see the
reason why Beverly would bring a counsel when she is supposed to be the
complainant in the case (p. 11, April 5, 2000 TSN). He testified that after having
interviewed a representative from Honda, they had set aside the possibility that it
was a third party who used pick lock in order to have access to the Honda
Accord and the presumption is that the duplicate key or the main key was used
in opening the car. The assessment was connected with the statement of
Renevie that she heard the clicking of all the locks of the Honda Accord, which
she was sure of when they left the car in the parking lot (p. 12 ibid) In 1998 they
arrested Rolando Malibiran in Candelaria Quezon, he was fixing his owner type
jeep at that time. The arresting officers waited for Beverly Tan, and after thirty
minutes they were able to arrest Beverly Tan on the same place (p 8, May 31,
2000 TSN). They searched the premises of the place where they reside and
found a white paper which he presumed to be kulam because theres some oracle
words inscribe in that white piece of paper and at the bottom is written the same
of Jessie (pp. 8-9 ibid). On cross examination, he admitted that 70% of the
information on the case was given by Oswaldo Banaag through the persistence
of the NBI which convinced him to help solve the case. It was disclosed to the
investigating officer after he was released, thats the only time he gave in to the
request (p. 14, may 31, 2000 TSN). As to how the NBI operatives effected the
arrest, it was through an information from the Lucena Sub-Office (p. 17, Ibid).

7. Rosalinda Fuerzas testified that her life in Makati was medyo magulo lnag
kase nanggugulo sya sa amin. When asked who this siya was, she
said Beverly. That one day Beverly called on her and harassed her, and one day
she received a murder letter threatening that she (Rosalinda) would be around
the newspaper saying that she would be killed, like what they did in the news
papers, puputu-putulin iyong mga dodo o anuman dahil mang-aagaw daw ako
(Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She stated that her
husband wanted to separate with Beverly because he found out that the latter has
paramour named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She had
never seen Beverly appeared to be lonely when her husband was then
kidnapped. A telephone conversation with Beverly was recorded by Reynaldo
which was a quarrel regarding money. In the Cardinal Santos Hospital, she did
not see Beverlys appearance to be lonely but appeared to be a criminal,
and Beverly did not cry (pp. 13-17 ibid). She mentioned the letter of Reynaldo
that if something happened to him, Beverly is the one who killed him (p. 26
Ibid; pp. 24-25, Exh. D, Vol. 1-A Record).

8. Janet Pascual testified that she was able to know Rolando Malibiran, because
on March 1993 when she was in White Plains, Beverly showed her a picture of
him (Malibiran) and said to her that he is her boy friend. Witness told her that he
was handsome. She was close to Beverly that she frequently stayed in White
Plains when Beverly and Reynaldo is no longer living in the same roof. They
played mahjong, chat and has heard Beverlys hurtful emotions by reason of her
philandering husband Reynaldo. Beverly told her of how she felt bad against
underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a kumapre who knows how to make kulam
for an amount of P10,000.00. That Reynaldo would just sleep and never wake
up. Witness testified that they went to Quiapo to buy the needed ingredients but
nothing happened (p. 14 Ibid). The accused wanted to kill Reynaldo in a way
that they would not be suspected of having planned it, and for him just to die of
bangungot. She testified that they wanted to separate their properties but it did
not push through, referring to Beverly and Reynaldo. That Beverly heard of the
house being built in Corinthian intended for Rosalinda and family. In July 1994
Malibiran told witness testified that she heard this on their way to Batangas, it
was Beverlys birthday (p. 16 ibid). On October 1994 she asked by Malibiran to
convince Beverly to marry him, this was asked at the time when Beverly was
in Germany (p. 17 ibid).

When asked whether Beverly and Rolando ever got married the witness
testified that the two got married on November 8, 1994. (p. 155 Vol. 1-A
records Exh. JJ Certificate of Marriage). That she executed an affidavit of
corroborating witnesses for Beverly and Malibiran to facilitate the processing of
their exemption in obtaining marriage license requirement (p. 128 Ibid; Exh.
BB). She is an employee of the Municipality of San Juan. After getting married
they discussed how Malibiran would get inside the car of Reynaldo. On
December of 1994, Beverly was able to duplicate Reynaldos key at the time
when they have shopped for many things, Reynaldo asked her to bring the
goods to the car in the compartment as the kids would still shop (p. 17
ibid). After having done so, she proceeded to a key duplicator in Virra Mall and
had the key duplicated. Thereafter on the succeeding days or weeks, she was
able to give the duplicate to Malibiran. That they would use the grenade since
Malibiran has one in his house but his only problem is how to get inside the car
and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid)
As to when the killing would take place, the witness heard that they will
do it during the baptism of the child of Gloria, Rolando Malibirans sister. They
chose that date so that they would not be suspected of anything and that pictures
would be taken in the baptism to reflect that Malibiran took part in the same (pp.
17-18 ibid). During Reynaldos internment when asked whether Beverly looked
sad, witness said that she did not see her sad (p. 20 ibid). On February 8, 1995,
during the wake, witness met Malibiran in a canteen in White Plains and they
rode a Canter owned by Beverly, on the road while the vehicle was cruising
along Katipunan avenue near Labor Hospital, Malibiran told her among others
that on the day he placed a grenade on Reynaldos car he saw a security guard
roving and so what he did was to hurriedly tie the wire in the grenade (p. 21
ibid) not connected with the wire unlike the one intended for Reynaldo which
has a connection (p. 21 ibid). As far as she knows, there were four or five
grenades placed. She told this secret to another friend so that in case something
happened to her, it was the doing of Malibiran and Beverly.

On Cross examination, she was asked whether Malibiran did it alone, she said
that he has a look out as what Malibiran told him (p. 26 ibid). When confronted
why she was testifying only now, she said she was bothered by her
conscience. As to how did she get the information of key duplication, she said
that it was told to her by Beverly (p. 35 ibid). It was also disclosed that she did
ask Atty. Morales for a sum of P5,000.00 for he to buy medicine.
9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she
and Malibiran had a relationship (p. 39, April 1994 TSN). He testified that on
April 10, 1994 Beverly asked him to look for a hired gunman, if he could not
find one, he just look for a poison that would kill Reynaldo, ten thousand
(P10,000.00) pesos was given him for this (p. 14 Ibid). In his sworn statement
he said that Beverly asked him to seek means for Reynaldo to die. That she will
pay any amount just for him to get out of her life. He has driven for her in going
to Hilltop Police Station, Taytay Rizal to see Rolando Malibiran. That Malibiran
blames Beverly of the reason why Reynaldo is still alive and then volunteered
himself to remedy the situation, that he would seek a man that would kill
Reynaldo he made an example of a man they killed and threw in Antipolo
Bangin with Beverly, Malibiran and two other persons who appear to be
policeman because they have something budging in their waste [sic] which is
assumed to be a gun, they went to Paombong Bulacan via Malabon. He heard
that they would fetch a man in Bulacan that knows how to place a bomb in a
vehicle. Near the sea they talked to a person thereat. From Paombong they rode
a banca and went to an islet where the planning was discussed as to how much
is the fee and how the killing will be had. They ordered him to return back to the
vehicle and just fetched them in Binangonan.

He swore that on February 5, 1995 around 10:30 a.m. Beverly asked one
of her siblings to call Reynaldo for them to be picked up because every Sunday,
the family would go out for recreation.Around 12:00 pm he was asked
by Beverly to follow where they will go and when they are already parked, he
was instructed to fetch Malibiran in Caltex, Katipunan near Shakeys and bring
them to the place where Reynaldo was parked. In the Caltex station he saw
Malibiran with two persons who looked like policemen and another person he
previously saw in Bulacan. He drove the L300 Van, and brought them to the
parking lot where Reynaldos Honda Car was parked and Malibiran told him just
drove [sic] in the area and come back. At around 3:00 p.m. after half an hour he
saw Malibiran and company and I picked them up. He heard from the person in
Bulacan Ayos na, siguradong malinis ito. Then he was asked to drive them to
Hilltop Police Station. He discovered the death of Reynaldo when he saw and
read newspaper, he called Beverly to confirm this incident and he was asked to
be hired again and drove for her. When he was in White Plains already, he was
asked by Beverly and Malibiran not to squeal what he knows of, otherwise, his
life will just be endangered. That Beverly and Malibiran were lovers since
March 1993, when they met each other in a piggery in Marikina. There was an
incident that Reynaldo saw Malibiran in their own bedroom, and there was
almost a gunshot incident, he was there because he was asked to drive the
vehicle. Beverly Tans source of money was from Reynaldo Tan, that he
(Banaag) was asked frequently by Beverly who in turn would give it to
Malibiran (Exh. y, pp. 122-125 Vol. 1-A, Sworn Statement November 29,
1996).
On March 29, 1996 he was no longer driving for Beverly because he
was arrested by the Presidential Anti-Crime Commission for his alleged
involvement in the kidnapping of the father of the classmate of Renevie Tan. He
was later on acquitted (p. 16, Feb. 20, 2001 TSN) and released from
incarceration on May 7, 1997. When asked whether Jessie Tan helped him to be
acquitted in the kidnapping case, he said no (p. 16 ibid).
On Cross examination, he was asked how many times did Jessie Tan
visit him in prison, he said that it was Atty. Olanzo who visited him for about six
times and that he saw Jessie when he was already out of jail (pp. 24-25 ibid). He
testified that there was one incident when Reynaldo and Mabiliran almost had a
shootout in the bedroom downstairs because Malibiran was inside the bedroom
where Beverly was, Reynaldo have a gun at that time bulging in his waste [sic]
(p. 40 ibid).
Further on Cross, he testified that sometime in June 1994, he with
Beverly went to Hilltop Police Station and fetched Malibiran and company to
go to Paombong Bulacan, they passed by Malabon before going to
Bulacan. When they reached the bridge near the sea, they rode a banca, about
six of them plus the one rowing the boar towards an Island. In the Island, there
was one person waiting (p. 44-45 ibid). he stayed there for just for about ten (10)
minutes, and during that period, at about one arms length he overheard their
conversation concerning a man to bring the bomb in the car. When asked who
was in the banca then, he said it was Beverly, Botong (Malibiran), Janet and the
man they picked up at Hilltop. He was told to return the L300 and just wait for
them in Binangonan, hence he rode a banca to return to the bridge and then
drove the L300 Van towards Binangonan (p. 50 ibid). When asked if he knows
that Malibiran is engaged in the fishing business of bangus, he had no idea (p.
45 ibid).

DEFENSE EVIDENCE

For the defense, in opposition to the testimony of Elmer Paug, it called to the
witness stand Renevie Tan. She testified that she believe that her mother
(Beverly) did not kill her dad because she was with them at the time of the
incident (p. 6 Feb. 5, 2002 TSN). That it is not true that they did nothing when
his dad was lying on the ground at the time of the incident. That her mom
screamed at that time and did tried to pull her dad who was under the car that
she kept going around to find a safer place to pull him out because the car was
burning and so they could not pick her dad without burning. Her mother tried
crawling underneath the car so she can reach him but he pulled her mom aside
and pulled dad risking himself from burning (p. 11 ibid) She found out that the
person who helped them was the taxi driver, Elmer Paug.
That a driver of a Ford Fiera or Toyota Tamaraw of some kind of
delivery van boarded her dad with her mom and headed for Cardinal Santos
Hospital. She said that if is not true that her mom appeared unaffected or acting
normal as if nothing happened. That it is likewise not true when Elmer Paug
said that he alone carried her dads body, and said that there was another man
who helped put her dad on the car (p. 14 ibid). She swore that her mom was
shocked and was crying at that time (pp. 112-115, Exh. U Sworn Statement of
Renevie Tan). She admitted that it was only the taxi driver who pulled out his
dad from the danger area to a safer place at about four (4) meters, while Elmer
Paug was dragging her dad, they where there following him (p. 43 February 5,
2002, TSN). That she touched her father when they where (p. 45 ibid). It was
confirmed in her testimony that it was the taxi drivers who looked for a taxi cab
( p. 46 ibid). She asked if she observed whether her mom carried a portion of her
dads body or arms, hands, legs or buttocks of her father, she said she could not
remember (p. 7-8, February 12, 2002 TSN). When asked whether her mom has
a shoulder bag at that time, she could not remember.
She testified that her parents keep quarreling to each other may be in
1988-89 and stopped in 1991. it was a once a month quarrel (pp. 23-24 ibid). A
certain Janet Pascual frequently stayed in their house in the months of October
1994 until February of 1995, and her moms relationship with Janet was cordial
(pp. 27-28, ibid). As regards to Malibiran, she knows him at the month of
August or September of 1994 but no knowledge of a marriage that took place
between her mom and Malibiran on November of the same year (p. 30 ibid).
Romulo Bruzo, the security guard of Tan Family at White Plains
testified that there was an offer of half a million to him by an unknown person
and a demand for him to leave the employ of Beverly Tan and a threat to his life
should he testify before the Court. He testified that Banaag was a family driver
of the Tan in White Plains from March 1993 until August 1994, after said date,
he was taken by Reynaldo Tan as driver at Winreach. He testifies that the
statement of Oswaldo Banaag that he came over to White Plains on February 5,
1995, drove the L300 Van and followed the family to Greenhills Shopping
Complex is false. Because at that time, the L300 was still parked inside White
Plains, it was just a concocted statement of Banaag because he has a grudge on
Mrs. Tan as she did not help him when he was incarcerated in Camp Crame
(p.47-48 ibid).
He was told by Banaag that they were supposed to kidnap the three
siblings of Beverly Tan but he took pity on them because Beverly is a nice
person to him. He stated that Jessie Tan helped him to be acquitted (p. 49 ibid)
and promised good job and house to live in.

As regards Janet Pascual, he testified that he had an altercation with her (Janet)
because there was an instruction for him by Renevie for Janet not to let inside
the house. That Janet got mad at them because she is not been [sic] treated the
way Renevies mom did not to her. Likewise, Renevie has refused to give
her P5,000.00 allowance as her mom did before to Janet for the latters medicine
(pp. 50-51).
On account of said incident, she made a threatening remark that if she
will not be treated fairly and the P5,000.00 allowance be not given to her, she
will go to the Tan Brother and she will testify Mrs. Tan. When asked whom she
was angry of Bruzo said it was against Renevie and Atty. Morales. She was
angry with the latter because she thought that Atty. Morales was telling Renevie
not to give her allowance anymore and refuse access inside the white plains (p.
51 ibid).
When asked if he knows Malibiran, he said that he was able to join him
twice when there was a delivery of rejected bread for fish feeds in Bulacan. That
he saw him eight (8) times in a month in 1994 and just twice a week in the
month of August, September and October of said year. (p. 52 ibid). He also saw
him on July of 1994 on the occasion of Beverlys Birthday.
That on February 5, 1994, Beverly called on him to relay to Roger to
fetch the three kids in Green Hills. When asked the tone of Beverly at the time
of the phone call, he said the tone was that she was scared and confused (p. 63
ibid)
Tessie Luba, the caretaker of Manila Memorial Park testified that she
was paid by Beverly to take care of the tomb of Reynaldo and that in some
points in time Jessie took over and later her services were not availed of
anymore (p. 23, April 30, 2002 TSN) That she saw Beverly with Banaag on
November 1996 (p. 8 ibid) and Jessie with Banaag in one occasion in going to
the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20 ibid).
Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is
a back fighter and a traitor, that Janet tried to convince her to testify against
Beverly and if witness will be convinced, Janet will receive a big amount of
money about three (3) million from another source. Testified that it is not true
that Beverly and Malibiran orchestrated or masterminded the death of
Reynaldo, and that Janet testified because she needed money because she is sick
and diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart that they
are innocent and that they are good people (p. 20 ibid).
Victorino Felix, a police officer testified that Malibiran is a member of
the Aquarius Multi-Purpose Cooperative, a cooperative that is engaged in the
culture of fish particularly Bangus at Laguna De Bay particularly Bagumbong,
Binangonan, Laguna.
He testified that sometime in 1994, he together with Malibiran waited at
Tropical Hut, Cainta for them to be picked up for Bulacan to purchase
fingerlings. They were fetched by an L300 Van driven by Oswaldo Banaag and
they were around six or seven at that time that headed first to Dampalit,
Malabon, Metro Manila to meet the owner of the fish pond, finding that the
owner thereof was already in Bulacan they proceeded thereat, at Taliptip,
Bulacan. In said place, they left the L300 Van along the bridge, near the sea and
from there they rode a motor banca in going to the fingerlings ponds. He
testified that Oswaldo was not with them in going to the pond from Taliptip (pp.
11-13, Sept. 3, 2002 TSN). When asked where he was, he said he drove the
L300 back (p. 14 ibid). The pond was about three kilometers from Talilip, and
they were able to buy fingerlings, loaded it in another water transport going to
Laguna Lake from Bulacan traversing Pasig River and thereafter they returned
back to Binangonan (p. 15 ibid).
On Cross, he testified that has met Banaag many times because he used
to deliver rejected for bangus feeds, but said that it was only once when Banaag
drove with him, that is sometimes in 1994 (p. 20 ibid). he testified that
Malibiran together with him went to Talilip, Bulacan to procure some
fingerlings sometime in June 1995 to mid 1996 (Joint Order, Sept. 3, 2002, p.
366 Vol. III record).

Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he was
at the residence of one Gloria Malibiran Santos and from there, he saw accused
Rolando Malibiran together with his wife and children, witness parents-in-law
and sisters-in-law. When asked who his parents-in-law is, he said Fernando
Malibiran and Jovita Malibiran, the parents of Rolando Malibiran (p. 5, Sept.
17, 2002 TSN). He said that they left the occasion at around 5:00pm and at that
time, accused Malibiran, with Boy Santos and Eduardo was still playing
pusoy. When asked if there was such a time that Malibiran left the house of
Gloria Santos, he said, he did not go out of the house sir (pp. 5-7 ibid).
On Cross examination, it was disclosed that he knows Malibiran at the
time witness was still his wife, the sister of Malibiran, that was sometime in
1988. when asked if he considered Malibiran to be close to him as the brother of
his wife, he said yes sir (p. 10 ibid). Asked if his relationship with him is such
that he would place Malibiran in a difficult situation, he answered, it depends on
the situation (p. 11 ibid). Witness was asked how long it would take to reach
Unimart Supermarket from his residence in Malanday, he estimate it to be more
or less half an hour (p. 13 ibid). He testified that no game was ever stop [sic] on
the reason that they have to wait for Malibiran.
Said witness testimony was corroborated by Jose Ong Santos, the father
of the child who was baptized on said occasion. He testified that he played
pusoy with Malibiran at around 2:00pm, until 6:30 to 7:00 pm and there was
never a time that Malibiran left the table where they were playing except when
he feels like peeing (p. 10 July 16, 2002 TSN). It was estimated at abut five
times, and it took him about three to five minutes everytime he would rise to pee
and return to the table. That Malibiran may have left their house at
around 6:30 or 7:00 in the evening on February 5, 1995 (p. 11, ibid)
On Cross examination, he testified that the idea of baptism was rushly
scheduled, because he won in a cockfight three to four days before the baptism
of his child at about February 1 or 2 of 1995. That amount was
about P50,000.00 (pp. 20-21 ibid). Malibiran did not take any participation in
the baptism nor was he present at the church, but was already at the reception
with his family, for lunch. He testified that Malibiran left by call of nature, to
pee, about four to five times and a span of five minutes (p. 31 ibid).

Accused Rolando Malibiran in his Counter-Affidavit said that he does

intelligence work for seven years. He doesnt know Banaag as to reckless discuss
a supposed plot to kill somebody within his hearing.That would be inconsistent
with the entire training and experience as a police officer. Especially when the
expertise is intelligence work. Banaag drove for them in June or July 1995 not
in June of 1994 (for months after the death of Reynaldo) [pp. 147-152, Exh. HH
Vol. 1-a record].

He testified that he met Banaag sometime in the last quarter of 1993 at the
piggery of Beverly Tan (pp. 12-13, Oct. 8, 2002 TSN). He admitted that he was
with Banaag using the L300 Van of Beverly in one occasion, in 1994 when they
purchased fingerlings from Bulacan. They procured the same because their
cooperative was culturing bangus in Barangay Bombon, Binangonan, Rizal (pp.
14-15). He testified that in Bulacan, Banaag was left at the foot of the bridge
where the L300 was parked (p. 19 ibid) and heard that Beverly told Banaag to
go back, in White Plains (p. 21, ibid). After procuring the fingerlings, they rode
a big banca called pituya then they went back to Pritil, Binangonan. In Pritil,
they waited for Banaag (P. 26 ibid).

He denied having met Janet Pascual on Wednesday at about February 8,

1995 because since Tuesday (February 7, 1995) he was already confined in the
Camp by Order of his Unit Commander, Chief Inspector Florentin Sipin (p. 5,
January 21, 2003 TSN) because he was under investigation by the Presidential
Anti-Crime Commission. He admitted that he met Beverly in the last quarter of
 1993 (p. 8, October 22, 2002) but denied having intimate relations with her (p.
21 ibid).

He testified that he met Janet Pascual only once, on November 1994, but said
that they never talked (p. 12, November 12, 2002 TSN). He denied having
married Beverly Tan nor did he ever requested Janet Pascual to secure a license
for them to get married. He denied having had a trip with Janet in Bulacan and
admitted that he went to Zamables once, with Beverly, kids and yaya as well as
his father (p. 25, ibid), that was sometime in 1994, before Reynaldo died. He
testified that he used his own vehicle with his father in going to Zamables. He
denied seeing Reynaldo; he said he just heard him based on his conversation
with Beverly Tan which took place in the piggery in Marikina. In sum, the place
of incidents where he managed to meet and talk with Beverly Tan was in the
piggery in Marikina; at Camp station in Taytay Rizal; in Bulacan when they
procured fingerlings in Binangonan; Malabon; Zambales; White Plains and
Cainta. (pp. 30; 32; 35 ibid).

He testified that he was arrested in Candelaria Quezon on December 1998 (p. 11

January 21, 2003) but denied living with Beverly Tan at the time of the
arrest. He said he just saw Beverly thirty (30) minutes after his arrest in the town
proper of Candelaria, Quezon (P. 21, ibid). He denied that he uttered the remark
its better to kill Rene since you are not benefiting from him (p. 38 ibid); never
have access to grenades; never asked Beverly Tan how he could get inside
Reynaldos Car never claimed to be a sharp shooter and had never went to
Batangas uttering the remarks mentioned by Janet Pascual nor went to Batangas
at the time of Beverlys birthday.

On Cross examination, he said that he never talk to Janet at the time of his
restriction and thereafter. He had no commercial dealing with Janet nor have
any romantic relations with her (p. 8, ibid). It was only when the case was filed
he was able to talk to her (p. 5, February 4, 2003 TSN). He testified that he
evaded arrest because there was a pending petition for review filed by his
lawyer before the Department of Justice despite the fact that there is an existing
warrant of arrest which he found out at the end of 1997 (p. 15 ibid).
On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of
Parricide. The dispositive portion of the Joint Decision reads as follows:

WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as charged.
Accused Rolando Malibiran for the crime of Murder in Criminal Case No. 113065-H and
accused Beverly Tibo-Tan for Parricide in Criminal Case No. 113066-H defined and
penalized under Article 248 and Article 246, respectively, of the Revised Penal Code, as
amended, in relation to Republic Act No. 7659 with the attendant circumstances of
treachery, evident premeditation and use of explosion and sentencing both accused the
supreme penalty of DEATH, and ordering them to pay jointly and severally to the heirs of
Reynaldo Tan the amount of Fifty Thousand (P50,000.00) Pesos as indemnity for death,
Eighty Thousand (P80,000.00) Pesos as actual damages; Fifty Thousand (P50,000.00) as
moral damages; and to pay the costs.

SO ORDERED.[8]

Appellant then appealed to this Court; the appeal was, however, referred to the CA
pursuant to People v. Mateo.[9]
In its Decision dated November 13, 2006, the CA affirmed the Decision of the RTC. The
CA, however, took judicial notice of Republic Act No. 9346 prohibiting the imposition of
the death penalty and thus reduced the penalty to reclusion perpetua. The dispositive
portion of the said Decision reads as follows:

WHEREFORE, premises considered, the joint decision dated September 23, 2003
of the Regional Trial Court, Special Court for Heinous Crimes, Branch 156, Pasig City in
Criminal Case No. 113065-H for Murder and Criminal Case No. 113066-H for Parricide is
hereby AFFIRMED with Modification in that the supreme penalty of death imposed on
both accused-appellants is hereby reduced to RECLUSION PERPETUA.

SO ORDERED.[10]

As manifested by the Office of the Solicitor General (OSG), Rolando did not file a Motion
for Reconsideration or a Notice of Appeal from the CA Decision.[11] For all intents and
purposes, the judgment of conviction as to Rolando became final and executory
on December 14, 2006. This was confirmed by CA Resolution dated January 29, 2007,
which noted that pursuant to the report dated January 23, 2007 of the Judicial Records
Division that no motion for reconsideration or notice of appeal had been filed by counsel
for appellant Rolando Malibiran, entry of judgment is issued against said appellant x x x.[12]

This review shall therefore pertain only to appellant Beverly Tibo-Tan's conviction.

Appellant and the OSG were required by the Court in its Resolution dated October 3,
2007 to file supplemental briefs, if they so desired. The OSG filed a Manifestation and
Motion that it would no longer file any supplemental brief. As regards appellant, records
show that, as of even date, she had not filed any supplemental brief, despite due notice.[13]

In the Brief she filed with the Court prior to the endorsement of the case to the CA,
appellant raised the following assignment of errors:

I.
THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-
APPELLANT BEVERLY TIBO TAN GUILTY OF THE CRIME OF PARRICIDE
BASED MERELY ON CIRCUMSTANCIAL EVIDENCE, THE REQUISITES
THEREOF NOT HAVING BEEN SUBSTANTIALLY ESTABLISHED;

II.
THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE
TESTIMONY OF PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS
FOR ESTABLISHING CONSPIRACY BETWEEN ACCUSED-APPELLANT
MALIBIRAN AND ACCUSED-APPELLANT BEVERLY TAN, SUCH TESTIMONY
BEING HEARSAY ON SOME PARTS AND REPLETE WITH
INCONSISTENCIES; [14]

Before proceeding to the merits of appellant's arguments, the Court takes note of the RTC's
observation regarding appellant's stoic stance during and after the incident and her non-
presentation as witness. The RTC took this negatively against appellant. The Court differs
therefrom.

Appellant's seeming indifference or lack of emotions cannot be categorically quantified as

an indicium of her guilt. There is no hard and fast gauge for measuring a person's reaction
or behavior when confronted with a startling, not to mention horrifying, occurrence. It has
already been stated that witnesses of startling occurrences react differently depending upon
their situation and state of mind, and there is no standard form of human behavioral
response when one is confronted with a strange, startling or frightful experience. The
workings of the human mind placed under emotional stress are unpredictable, and people
react differently some may shout, some may faint and others may be shocked into
insensibility.[15]

Also, appellant's failure to testify in her defense should not be taken against her. The Court
preserves the rule that an accused has the right to decline to testify at the trial without any
inference of guilt drawn from his failure to be on the witness stand.[16] The constitutional
right to be presumed innocent still prevails.

This notwithstanding, the totality of the circumstantial evidence presented against appellant
justifies her conviction of the crime of Parricide.

Appellant claims that the circumstantial evidence proven during trial only shows that there
was a possibility that appellant may have conspired with Rolando, but nevertheless claims
that it came short of proving her guilt beyond reasonable doubt.[17]

Appellant further argues that the testimony of Oswaldo was in some parts hearsay and
replete with inconsistencies.[18] Specifically, appellant contends that the testimony of
Oswaldo that he overheard a conversation between Malibiran (Rolando)
and Beverly (appellant) that they will fetch a man in Bulacan that knows how to place a
bomb in a vehicle is hearsay.[19] Likewise, in her Reply Brief,[20] appellant claims that the
testimony of Janet is hearsay.

Contrary to the claim of appellant, the testimonies of Oswaldo and Janet are not covered by
the hearsay rule.

The hearsay rule states that a witness may not testify as to what he merely learned from
others either because he was told, or he read or heard the same. This is derived from
Section 36, Rule 130, Revised Rules of Court, which requires that a witness can testify
only to those facts that he knows of or comes from his personal knowledge, that is, that are
derived from his perception.Hearsay testimony may not be received as proof of the truth of
what he has learned.[21]
The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine
of independently relevant statements, where only the fact that such statements were made
is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply;
hence, the statements are admissible as evidence. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in
issue or be circumstantially relevant as to the existence of such a fact.[22] The witness who
testifies thereto is competent because he heard the same, as this is a matter of fact derived
from his own perception, and the purpose is to prove either that the statement was made or
the tenor thereof.[23]

In this case, Oswaldo's testimony that he overhead a conversation between Rolando and
appellant that they would fetch a man in Bulacan who knew how to place a bomb in a
vehicle is admissible, if only to establish the fact that such statement was made and the
tenor thereof. Likewise, Janet may testify on matters not only uttered in her presence, since
these may be considered as independently relevant statements, but also personally
conveyed to her by appellant and Rolando.

Appellant further argues that Oswaldo's testimony to the effect that he drove the L300 van
of the Tan family and brought Rolando to the parking lot where Reynaldos Honda Accord
was parked, was refuted by defense witness Romulo, the security guard of the Tan family.
Romulo testified that the L300 van never left White Plains on the day of the incident.[24]

While the defense may have presented Security Guard Romulo to refute the testimony of
Oswaldo, it is settled that when credibility is in issue, the Supreme Court generally defers
to the findings of the trial court, considering that it was in a better position to decide the
question, having heard the witnesses themselves and observed their deportment during
trial.[25] Thus, in the absence of any palpable error, this Court defers to the trials court's
impression and conclusion that, as between Oswaldo and Romulo, the former's testimony
deserved more weight and credence.
There is nothing on record to convince the Court to depart from the findings of the
RTC. On the contrary, the testimony of Janet as corroborated by Oswaldo, though
circumstantial, leaves no doubt that appellant had in fact conspired with Rolando in
bringing about the death of her husband Reynaldo. As a rule of ancient respectability now
molded into tradition, circumstantial evidence suffices to convict, only if the following
requisites concur: (a) there is more than one circumstance; (b) the facts from which the
inferences are derived are proven; and (c) the combination of all the circumstances is such
as to produce a conviction beyond reasonable doubt.[26]
The case of the prosecution was primarily built around the strength of the testimonies of
Janet and Oswaldo. The salient portions of Janet's testimony are extensively quoted
hereunder:
Q. Anything else significant that happened in the remaining of 1994, Ms. Pascual?
A. After they were married, they talked about what they're gonna do for Rene.

Q. Where did they discuss it?

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

Q. Who is (sic) with him?

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

Q. And then?
A. And after Beverly placed the things inside the compartment, she had with her the
key, she proceeded to a key duplicator in Virra Mall and had the key
duplicated.
Q. When did she give the key to Malibiran, if you know?
A. That was already December, I cannot recall the exact date, sir.

Q. Why did Mr. Malibiran need the key?

A. Because they planned, since they cannot use the gun Butch said that they would
use grenade instead because he had a grenade in his house. But their only
problem is how to get inside the car.

COURT:
Who is Butch?

A. Mr. Malibiran, your Honor.

COURT
Butch and Botong are one and the same person?

A. Yes, your Honor.

Q. Did they discuss how, where and when they would planted the grenade in the car of
Rene?
A. I heard from them that they would do it during the baptismal of the child of Gloria who
is the sister of Butch.

Q. And Butch is Botong?

A. Botong, sir.

Q. Do you know when that binyag when supposed to be held?

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

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

A. So that if a picture was taken during the baptism, there would be witnesses that they
were in the baptism, they would not be suspected that they have something to do
with that.[27]

xxxx

Q. What day of the week was this?

A. Sunday, Ma'm.

Q. What kind of kind [sic] was duplicated?

 A. The key in the new car of Rene the Honda Accord.

Court:
But in the first place, you were not there when it was duplicated? How you
were [sic] able to know that it was indeed duplicated?

A. Because after Beverly had duplicated the key, she told me that she was able to
have the key duplicated and she told me how she did it and she told me that she
will give the key to Butch.

Q. Did she show you the duplicated key?

A. Ginanoon niya lang.

Q. What does it looked [sic] like?

A. Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa.

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

A. None, I was just in White Plains.

Q. When was this?

A. That was December, 1994.

Q. What was their decision when they will execute the plan?
A. It will be during the baptismal of the child of Gloria because Butch is one of the
sponsors.[28] (Emphasis Supplied)
In addition, Oswaldo testified on the occurrences on the day of the incident, in this wise:

Q: Why did you go to Greenhills?

A. I was told by Ate Beverly to follow them wherever they go.
Q. What time did she tell you to go there?
A. After lunch, sir.

Q. What vehicle did you use to follow her?

A. L300, sir.

Q. Upon whose instruction?

A. Ate Beverly, sir.

Q. Did you in fact follow her?

A. Yes, sir.

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

A. Almost 1 o'clock, sir.

Q. Incidentally, who was with Beverly?

A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.

Q. What car did they use?

A. Honda Accord.

Q. Color?
A. Red, sir.

Q. Who drived [sic]?

A. Kuya Rene, sir.

Q. What part of Greenhills did they go?

A. The parking lot infront [sic] of Unimart, sir.

Q. What did you do when they come [sic] to Greenhills?

A. When I found out they already parked and Kuya Rene got in I went straight to
Katipunan.

Q. Why?
A. Because I was told by Ate to fetch Botong.

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

COURT
Who is Botong?

A. Rolando Malibiran, Your Honor.

Q. The accused in this case?

A. Yes, your Honor. [29]

xxxx

Q. You picked up Malibiran at Caltex on February 5, 1995?

A. Yes, sir.
Q. What time was that?
A. Around 2 o'clock, sir.

Q. Who if any was with him?

A. Two guys. One whom I saw in [sic] Bulacan and the one whom we sinakay at Hilltop.

Q. When did you go in [sic] Bulacan?

A. In June 1994, sir.

Q. With whom?
A. Botong, Beverly, Janet, I and two guys in Hilltop because that is the instruction
of Beverly.

Q. Do you know the name of the two guys from Hilltop?

A. If given the chance I can recognize them but I do not know them by name.

Q. What did you do in Bulacan?

A. We went to the Island near the sea.

Q. What did you do at that Island?

A. They talked to a person.

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

A. As far as I remember they talked about the plans about the killing of Kuya
Rene.[30]

xxxx

Q. Where did they ride on Feb. 5, 1995?

A. In Katipunan, sir.

Q. What did they ride?

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?

A. From Caltex we proceeded to Greenhills.

Q. Why?
A. Because that is the instruction of Ate Beverly. Where they were, I will drop them
there.
 Q. Did you do that?
A. Yes, sir.

Q. Where exactly did you drop them on?

A. In the place where Kuya Rene was parked.[31]

xxxx

COURT: x x x What happened while they were inside the vehicle while you were going
back to the place as instructed by Beverly?

A. After that I brought them where the car of Kuya Rene was parked, Your Honor. Before
they alighted, Botong asked, dito na ba?[32]

Atty. Rondain:
So you replied Opo, dyan po pumasok si Kuya Rene?

A. After I alighted they just go [sic] around.

Q. Where?
A. In Greenhills, sir.

Q. Then, what happened?

A. After half an hour I saw Kuya Botong, the three of them. Then they stopped me
and the three of them boarded the vehicle.

Q. What happened?
A. After they boarded, the man from Bulacan said, ano pare, malinis na paggawa nito.
Then, I was told by Botong to bring them to Hilltop.[33]

Based on the foregoing, the testimonies of Janet and Oswaldo clearly link appellant to the
planning of the crime. True, as intimated by appellant, she may not have been at the scene
of the crime at the time of the explosion;[34] but then again, if she was, then she would have
suffered the same fate as Reynaldo. Moreover, the nature of the crime and the manner of its
execution, i.e., via a booby trap, does not demand the physical presence of the perpetrator
at the very time of its commission. In fact, the very manner in which it was carried out
necessitated prior scheming and execution for it to succeed. Thus, appellant's absence from
the actual scene of the crime does not negate conspiracy with Rolando in plotting the death
of her husband. A conspiracy exists even if not all the parties committed the same act, but
the participants performed specific acts that indicated unity of purpose in accomplishing a
criminal design.[35]Moreover, direct proof of previous agreement to commit an offense is
not necessary to prove conspiracy -- conspiracy may be proven by circumstantial
evidence.[36]

The testimonies of Janet and Oswaldo established the following set of

circumstances which, if taken collectively, show the guilt of appellant: that appellant and
Rolando conspired, planned and agreed to kill Reynaldo using a grenade; that appellant
duplicated the key to the red Honda Accord of Reynaldo so that Rolando could gain access
to the car; that appellant thereafter gave the duplicate key to Rolando; that on February 5,
1995, appellant told Oswaldo to follow the red Honda Accord of Reynaldo until the latter
parked the car; that appellant told Oswaldo to thereafter pick up Rolando at Katipunan and
bring the latter to where Reynaldo parked his red Honda Accord. Reynaldo died soon after
due to injuries he sustained from an explosion caused by grenades planted in his car.

Another notable fact is that according to the expert opinion of Inspector Selverio Dollesin,
Chief of the Bomb Disposal Unit of the Eastern Police District, the perpetrator had
information about the victim's movements. Dollesin also observed that the perpetrator
knew his intended victim, since the grenade was specifically placed in between the driver's
seat and the front door.That the perpetrator knew the victim's movements was further
corroborated by the affidavits executed by the Tan children, Renevie[37] and Jag Carlo[38],
attesting that while they spent their Sundays with their father, this was the only time that
they spent a Sunday in Greenhills. Only someone who had close personal contact with
Reynaldo would know his movements, where the car would be parked, and that he was the
one who usually drove the red Honda Accord, such that it was precisely positioned to
ensure damage to the intended victim.

There is no doubt that, based on the testimony of Janet, it was Rolando who planted the
grenades inside the car of Reynaldo, to wit:

Q. Where did you go?

A. When I was inside the Canter, Botong (Rolando) was asking me while the vehicle was
moving slowly. He asked me what happened in the funeral parlor.
Q. And what did you say?
A. I told him that Major Penalosa called me for an interview but I did not say anything.
Then were already in front of the V. Luna Hospital.

COURT
What Hospital?

A. V. Luna, your Honor, along Katipunan.

COURT
Luna in Katipunan?

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

Atty. Rondain:
Iqoute na lang natin.

COURT
Dinali-dali niyang ibinuhol ang alambre. That's her term.[39] (Emphasis Supplied)
What sealed appellant's fate was that, as observed by the RTC, there were already
outstanding warrants of arrest against appellant and Rolando as early as September 11,
1997; yet they evaded arrest and were only arrested on December 4, 1998.[40] It is well
settled that flight, when unexplained, is a circumstance from which an inference of guilt
may be drawn. The wicked flee, even when no man pursueth; but the righteous are as bold
as a lion.[41] Appellant did not even proffer the slightest explanation for her flight.

All told, this Court is convinced beyond a reasonable doubt that appellant is guilty of the
crime as charged. Moreover, considering the manner in which appellant and Rolando
planned and executed the crime, the RTC was correct in appreciating the aggravating
circumstances of treachery, evident premeditation, and use of explosives. Thus, appellant is
guilty of the crime of Parricide as provided in the Revised Penal Code, to wit:

Article 246. Parricide- Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall
be guilty of parricide and shall be punished by reclusion perpetua to death. (Emphasis
Supplied)

Moreover, the Revised Penal Code provides for death as the proper penalty:

Article 63. Rules for the application of indivisible penalties.

xxxx
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:

When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
However, as observed by the CA, with the effectivity of Republic Act (R.A.) No. 9346
entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines on June 24,
2006, the imposition of the penalty of death has been prohibited. Thus, the proper penalty
to be imposed on appellant as provided in Section 2, paragraph (a) of said law is reclusion
perpetua.[42] The applicability of R.A. No. 9346 is undeniable in view of the principle in
criminal law that favorabilia sunt amplianda adiosa restrigenda. Penal laws that are
favorable to the accused are given retroactive effect.[43]

In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346,
which states:

SECTION 3. Persons convicted with reclusion perpetua, or those whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts:
(1) P50,000.00 as civil indemnity for death, (2) P80,000.00 as actual damages, and
(3) P50,000.00 as moral damages.

In the recent case of People v. Regalario,[44] the Court stated:

While the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still
heinous. Consequently, the civil indemnity for the victim is still P75,000.00. x x
 x the said award is not dependent on the actual imposition of the death penalty
but on the fact that qualifying circumstances warranting the imposition of the
death penalty attended the commission of the offense.

As to the award of moral and exemplary damages x x x. Moral damages are

awarded despite the absence of proof of mental and emotional suffering of the
victim's heirs. As borne out by human experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the victim's
family. If a crime is committed with an aggravating circumstance, either
qualifying or generic, an award of exemplary damages is justified under Article
2230 of the New Civil Code. This kind of damage is intended to serve as
deterrent to serious wrongdoings and as vindication of undue sufferings and
wanton invasion of the rights of an injured, or as a punishment for those guilty
of outrageous conduct. However, consistent with recent jurisprudence on
heinous crimes where the imposable penalty is death but reduced to reclusion
perpetua pursuant to Republic Act No. 9346, the award of moral damages
should be increased from P50,000.00 to P75,000.00 while the award of
exemplary damages should be increased from P25,000.00 to P30,000.00.
Consistent therewith, the RTC's award should be modified: the civil indemnity should be
increased to P75,000.00, and moral damages to P75,000.00.

Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary
damages in the amount of P30,000.00 is likewise warranted because of the presence of the
aggravating circumstances of intent to kill, treachery, evident premeditation and the use of
explosives. The imposition of exemplary damages is also justified under Art. 2229 of the
Civil Code in order to set an example for the public good.[45]

However, the award of P80,000.00 by the RTC as actual damages is deleted for lack of
competent evidence to support it. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized by the court.[46] In lieu thereof, appellant should pay temperate
damages in the amount of P25,000.00, said amount being awarded in homicide or murder
cases when no evidence of burial and funeral expenses is presented in the trial court,[47] and
in accordance with prevailing jurisprudence.[48] Under Article 2224 of the Civil Code,
temperate damages may be awarded when the Court finds that some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty.

Finally, Section 11, Rule 122 of the Rules of Court provides that:

An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable
and applicable to the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that
are favorable to Rolando may affect him. On the other hand, portions of this judgment that
are unfavorable to Rolando cannot apply to him. Thus, he cannot be made liable to pay for
exemplary damages, as the same were not awarded by the RTC.[49] However, he benefits
from this Court's finding that, instead of actual damages, only temperate damages should
be awarded to the heirs of the victim.
WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and Resolution
dated September 23, 2003, finding appellant Beverly Tibo-Tan guilty beyond reasonable
doubt of Parricide and sentencing her to suffer the penalty of RECLUSION
PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further
ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00
as temperate damages. In addition, appellant is solely liable to pay the heirs of Reynaldo
Tan the amount of P30,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.

PP vs. MALIBIRAN, GR No. 178301

FACTS: Rolando "Botong" Malibiran and Beverly Tibo-Tan were convicted of Murder and Parricide,
respectively, and sentencing them to suffer the penalty of reclusion perpetua. The conviction arose
from the death of Reynaldo Tan on February 5, 1995. The antecedents that led to Reynaldo's death,
however, go way back in the 70's when Reynaldo left his common-law wife, Rosalinda Fuerzas and
their two children, Jessie and Reynalin, in Davao, and went to Manila to seek greener pastures.
While in Manila, Reynaldo met and had a relationship with appellant. They eventually married in
1981. Reynaldo and appellant begot three children — Renevie, Jag-Carlo and Jay R. In 1984,
Reynaldo's and Rosalinda's paths crossed again and they resumed their relationship. This led to the
"souring" of Reynaldo's relationship with appellant; and in 1991, Reynaldo moved out of the conjugal
house and started living again with Rosalinda, although Reynaldo maintained support of and
paternal ties with his children. On that fateful day of February 5, 1995, Reynaldo and appellant were
in Greenhills with their children for their usual Sunday gallivant. After finishing lunch at the Kimpura
restaurant, the family separated at around 2:00 o'clock in the afternoon to do some shopping. Later,
they regrouped and purchased groceries at Unimart. At around 4:00 o'clock in the afternoon, the
family stepped out of the shopping mall and Reynaldo proceeded to the parking lot to get his red
Honda Accord, while the rest of his family stayed behind and waited. Immediately thereafter, the
family heard an explosion coming from the direction where Reynaldo parked his car. Appellant and
Renevie got curious and proceeded to the parking lot. There, they saw the Honda Accord burning,
with Reynaldo lying beside the driver's seat, burning, charred and bleeding profusely. A taxi driver
named Elmer Paug (Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was then rushed
to the Cardinal Santos Medical Hospital where he eventually died because of the severe injuries he
sustained. 3 The underlying cause of his death was Multiple Fracture & Multiple Vascular Injuries
Secondary to Blast Injury.

HELD: The testimonies of prosecution witnesses Janet and Oswaldo clearly link appellant to the
planning of the crime. True, as intimated by appellant, she may not have been at the scene of the
crime at the time of the explosion; but then again, if she was, then she would have suffered the
same fate as Reynaldo. Moreover, the nature of the crime and the manner of its execution, i.e., via a
booby trap, does not demand the physical presence of the perpetrator at the very time of its
commission. In fact, the very manner in which it was carried out necessitated prior scheming and
execution for it to succeed. Thus, appellant's absence from the actual scene of the crime does not
negate conspiracy with Rolando in plotting the death of her husband. A conspiracy exists even if not
all the parties committed the same act, but the participants performed specific acts that indicated
unity of purpose in accomplishing a criminal design. Moreover, direct proof of previous agreement to
commit an offense is not necessary to prove conspiracy — conspiracy may be proven by
circumstantial evidence. The testimonies of Janet and Oswaldo established the following set of
circumstances which, if taken collectively, show the guilt of appellant: that appellant and Rolando
conspired, planned and agreed to kill Reynaldo using a grenade; that appellant duplicated the key to
the red Honda Accord of Reynaldo so that Rolando could gain access to the car; that appellant
thereafter gave the duplicate key to Rolando; that on February 5, 1995, appellant told Oswaldo to
follow the red Honda Accord of Reynaldo until the latter parked the car; that appellant told Oswaldo
to thereafter pick up Rolando at Katipunan and bring the latter to where Reynaldo parked his red
Honda Accord. Reynaldo died soon after due to injuries he sustained from an explosion caused by
grenades planted in his car. Another notable fact is that according to the expert opinion of Inspector
Selverio Dollesin, Chief of the Bomb Disposal Unit of the Eastern Police District, the perpetrator had
information about the victim's movements. Dollesin also observed that the perpetrator knew his
intended victim, since the grenade was specifically placed in between the driver's seat and the front
door. That the perpetrator knew the victim's movements was further corroborated by the affidavits
executed by the Tan children, Renevie 37 and Jag Carlo, 38 attesting that while they spent their
Sundays with their father, this was the only time that they spent a Sunday in Greenhills. Only
someone who had close personal contact with Reynaldo would know his movements, where the car
would be parked, and that he was the one who usually drove the red Honda Accord, such that it was
precisely positioned to ensure damage to the intended victim.

EN BANC

G.R. Nos. 212014-15, December 06, 2016

RICHARD A. CAMBE, Petitioner, v. OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF

INVESTIGATION, LEVITO D. BALIGOD, AND FIELD INVESTIGATION OFFICE, Respondents.

G.R. Nos. 212427-28

SENATOR RAMON "BONG" REVILLA, JR., Petitioner, v. OFFICE OF THE OMBUDSMAN, THROUGH ITS
SPECIAL PANEL OF INVESTIGATORS, NATIONAL BUREAU OF INVESTIGATION, LEVITO D.
BALIGOD, AND FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, Respondents.

G.R. Nos. 212694-95

SENATOR RAMON "BONG" REVILLA, JR., Petitioner, v. OFFICE OF THE OMBUDSMAN, NATIONAL
BUREAU OF INVESTIGATION, LEVITO D. BALIGOD, FIELD INVESTIGATION OFFICE OF THE
OMBUDSMAN, OFFICE OF THE SPECIAL PROSECUTOR, AND THE HONORABLE
SANDIGANBAYAN, Respondents.

G.R. Nos. 212794-95

RICHARD A. CAMBE, Petitioner, v. OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF

INVESTIGATION, LEVITO D. BALIGOD, AND FIELD INVESTIGATION OFFICE, Respondents.

G.R. Nos. 213477-78

JOHN RAYMUND DE ASIS, Petitioner, v. CONCHITA CARPIO MORALES IN HER OFFICIAL CAPACITY
AS OMBUDSMAN, PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, FIRST
DIVISION, Respondents.

G.R. Nos. 213532-33

RONALD JOHN LIM, Petitioner, v. CONCHITA CARPIO MORALES IN HER OFFICIAL CAPACITY AS
OMBUDSMAN, PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, FIRST
DIVISION, Respondents.

G.R. Nos. 213536-37

JANET LIM NAPOLES, Petitioner, v. CONCHITA CARPIO MORALES IN HER OFFICIAL CAPACITY AS
OMBUDSMAN, PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, FIRST
DIVISION, Respondents.

G.R. Nos. 218744-59

MARIO L. RELAMPAGOS, ROSARIO SALAMIDA NUÑEZ, LALAINE NARAG PAULE, AND MARILOU
DIALINO BARE, Petitioners, v. SANDIGANBAYAN, (FIRST DIVISION) AND PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

PERLAS-BERNABE, J.:

Before this Court are consolidated petitions1 filed by petitioners Senator Ramon "Bong" Revilla, Jr. (Sen.
Revilla), Richard A. Cambe (Cambe), Janet Lim Napoles (Napoles or Janet Napoles), John Raymund De Asis
(De Asis), and Ronald John Lim (Lim), which commonly assail the Joint Resolution2 dated March 28, 2014
and the Joint Order3 dated June 4, 2014 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-13-
0316 and OMB-C-C-13-0395 finding probable cause to indict them, along with several others, for the crimes
of Plunder, defined and penalized under Section 2 in relation to Section 1 (d) (1), (2), and (6) of Republic
Act No. (RA) 7080,4 as amended (one [1] count) and/or of violation of Section 3 (e) of RA 30195 (sixteen
[16] counts).

Further assailed are: (1) by Cambe,6 the Ombudsman's Joint Order7 dated March 14, 2014, which denied
Cambe's Supplemental Counter-Affidavit with Second Motion to Suspend Proceedings;8 (2) by Sen.
Revilla,9 the Ombudsman's Order10 dated May 15, 2014 which denied Sen. Revilla's Omnibus Motion11 to re-
conduct the preliminary investigation, among others; and (3) by petitioners Mario L. Relampagos
(Relampagos), Rosario Salamida Nuñez (Nuñez), Lalaine Narag Paule (Paule), and Marilou Dialino Bare
(Bare),12 the Resolutions dated November 13, 201413 and May 13, 201514 of the Sandiganbayan which
affirmed the finding of probable cause against them in Criminal Case Nos. SB-14-CRM-0268, 0269, 0272,
0273, 0275, 0276, 0279, and 0280.

The Facts

Petitioners are all charged as co-conspirators for their respective participations in the illegal pillaging of
public funds sourced from the Priority Development Assistance Fund (PDAF) of Sen. Revilla for the years
2006 to 2010,15 in the total amount of P517,000,000.00.16 The charges are contained in two (2) complaints,
namely: (1) a Complaint for Plunder17 filed by the National Bureau of Investigation (NBI) and Atty. Levito D.
Baligod on September 16, 2013, docketed as OMB-C-C-13-0316; and (2) a Complaint for Plunder and
violation of Section 3 (e) of RA 301918 filed by the Field Investigation Office of the Ombudsman (FIO) on
November 18, 2013, docketed as OMB-C-C-13-0395, both before the Ombudsman. Briefly stated,
petitioners were implicated for the following acts:

(a) Sen. Revilla, as Senator of the Republic of the Philippines, for authorizing the illegal utilization,
diversion, and disbursement of his allocated PDAF through his endorsement of fraudulent Non-Governmental
Organizations (NGOs) created and controlled by Napoles's JLN (Janet Lim Napoles) Corporation19 in relation
to "ghost" PDAF-funded projects,20 and for receiving significant portions of the diverted PDAF funds as his
"commission" or "kickback";21

(b) Cambe, as Chief of Staff of Sen. Revilla during the times material to this case, for processing the
utilization, diversion, and disbursement of Sen. Revilla's PDAF,22 and for personally receiving his own
"commission" or "kickback" from the diverted funds;23

(c) Napoles, as the mastermind of the entire PDAF scam, for facilitating the illegal utilization, diversion, and
disbursement of Sen. Revilla's PDAF through: (1) the commencement via "business propositions" with the
legislator regarding his allocated PDAF; (2) the creation and operation of JLN-controlled NGOs to serve as
"conduits" for "ghost" PDAF-funded projects; (3) the use of spurious receipts and liquidation documents to
make it appear that the projects were implemented by her NGOs; (4) the falsification and machinations
used in securing funds from the various implementing agencies (IAs) and in liquidating disbursements; and
(5) the remittance of Sen. Revilla's PDAF for misappropriation;24

(d) Lim and De Asis, as staff employees of Napoles, for assisting in the fraudulent processing and releasing
of the PDAF funds to the JLN-controlled NGOs25 through, among others, their designation as
c ralaw red

Presidents/Incorporators26 of JLN-controlled NGOs, namely, Kaupdanan Para sa Mangunguma Foundation,

Inc. (KPMFI)27 and Ginintuang Alay sa Magsasaka Foundation, Inc. (GAMFI),28 respectively, and for
eventually remitting the PDAF funds to Napoles's control;29 and

(e) Relampagos, Nuñez, Paule, and Bare (Relampagos, et al.), as employees of the Department of
Budget and Management (DBM), for participating in the misuse or diversion of Sen. Revilla's PDAF, by acting
as "contacts" of Napoles within the DBM, and thereby, assisting in the release of the Special Allotment
Release Orders (SAROs) and Notices of Cash Allocation (NCAs) covering Sen. Revilla's PDAF.30

As alleged, the PDAF scheme commences with Napoles meeting with a legislator - in this case, Sen. Revilla -
with the former giving an offer to "acquire" his PDAF allocation in exchange for a "commission" or "kickback"
amounting to a certain percentage of the PDAF.31 Upon their agreement on the conditions of the PDAF
acquisition, including the project for which the PDAF will be utilized, the corresponding IA tasked to
implement the same, and the legislator's "commission" or "kickback" ranging from 40-60% of either the
project cost or the amount stated in the SARO,32 the legislator would then write a letter addressed to the
Senate President for the immediate release of his PDAF, who in turn, will endorse such request to the DBM
for the release of the SARO.33 By this time, the initial advance portion of the "commission" would be
remitted by Napoles to the legislator.34 Upon release of the SARO, Napoles would then direct her staff -
including whistleblowers Benhur Luy (Luy), Marina Sula (Sula), and Merlina Suñas (Suñas) to prepare PDAF
documents containing, inter alia, the preferred JLN-controlled NGO that will be used as a "conduit" for the
implementation of the project, the project proposals of the identified NGO, and the endorsement letters to
be signed by the legislator and/or his staff, all for the approval of the legislator;35 and would remit the
remaining portion or balance of the "commission" of the legislator, which is usually delivered by her staff,
Lim and De Asis.36 Once the documents are approved, the same would be transmitted to the IA which would
handle the preparation of the Memorandum of Agreement (MOA) to be executed by the legislator's office,
the IA, and the chosen NGO.37 Thereafter, the DBM would release the NCA38 to the IA concerned, the
head/official of which, in turn, would expedite the transaction and release of the corresponding check
representing the PDAF disbursement, in exchange for a ten percent (10%) share in the project
cost.39 Among those tasked by Napoles to pick up the checks and deposit them to the bank accounts of the
NGO concerned were Luy, Suñas, and De Asis.40 Once the funds are in the account of the JLN-controlled
NGO, Napoles would then call the bank to facilitate the withdrawal thereof.41 Upon withdrawal of the said
funds by Napoles's staff, the latter would bring the proceeds to the office of JLN Corporation for
accounting.42 Napoles would then decide how much will be left in the office and how much will be brought to
her residence in Taguig City. De Asis, Lim, Luy, and Suñas were the ones instructed to deliver the money to
Napoles's residence.43 Finally, to liquidate the disbursements, Napoles and her staff would manufacture
fictitious lists of beneficiaries, liquidation reports, inspection reports, project activity reports, and similar
documents that would make it appear that the PDAF-funded projects were implemented when, in fact, they
were not since they were actually inexistent or, in other words, "ghost" projects.44 Under this modus
operandi, Sen. Revilla, with the help of petitioners, among others, allegedly funneled his PDAF amounting to
around P517,000,000.0045 to the JLN-controlled NGOs and, in return, received "commissions" or "kickbacks"
amounting to at least P224,512,500.0046

In the Orders dated November 19, 201347 and November 29, 2013,48 the Ombudsman directed petitioners,
along with several others, to submit their respective counter-affidavits, to which petitioners complied with,
except for Napoles and Lim.49

In his defense, Revilla filed his Counter-Affidavit dated January 16, 2014, contending that: (a) his and
Cambe's signatures in the PDAF documents were forgeries; (b) the utilization of his PDAF had "always been
regular and above-board"; (c) his involvement in the release of his PDAF is limited; and (d) there is "no
credible proof" to show that he committed said illegal acts and that conspiracy exists between him and all
the other persons involved in the PDAF scam.50

Cambe, on the other hand, filed his Counter-Affidavit dated January 20, 2014 and Supplemental Counter-
Affidavit dated March 12, 2014, maintaining that: (a) his signatures in the PDAF documents were all
forgeries; and (b) he did not receive any money from Sen. Revilla's PDAF nor connive with any of the
alleged co-conspirators to acquire ill-gotten wealth.51

For his part, De Asis filed his Counter-Affidavit dated January 16, 2014, admitting that: (a) he was an
employee of the JLN Corporation; (b) he did pick up checks for JLN-controlled NGOs; and (c) he was an
incorporator in one of the JLN-controlled NGOs; but denying that he personally benefited from the supposed
misuse of Sen. Revilla's PDAF.52

Meanwhile, Relampagos, et al., in their separate Counter-Affidavits dated December 13, 2013, contended
that: (a) there is no probable cause and factual or legal basis to indict them for the offenses charged; and
(b) the criminal complaints did not specifically mention their names as among those who allegedly
participated in the misuse of Sen. Revilla's PDAF.53

Pending resolution of the Ombudsman cases, Sen. Revilla and Cambe separately moved for the suspension
of the preliminary investigation54 on the criminal complaints, which were, however, denied by the
Ombudsman in a Joint Order55 dated January 28, 2014, holding that no prejudicial question exists to
warrant the suspension of the preliminary investigation proceedings.56

Cambe filed another motion57 to suspend proceedings of the preliminary investigation, claiming that the
filing of the criminal complaints was premature since the Commission on Audit (COA) had yet to issue an
Order of Execution in relation to the Notices of Disallowance58 (NDs) against Sen. Revilla's Office, docketed
as Special Audits Office (SAO) ND Nos. NLDC-2014-013-PDAF(07-09) to 020-PDAF(07-09). The said motion
was, again, denied by the Ombudsman in a Joint Order59 dated March 14, 2014 (March 14, 2014 Joint
Order). Thus, Cambe elevated the matter to this Court via a petition for certiorari, docketed as G.R. Nos.
212014-15.

Meantime, Sen. Revilla filed a Motion to be Furnished Copies of Motions, Pleadings, and Other Submissions
(Motion to be Furnished),60 praying that he be furnished with copies of all the counter-affidavits filed by the
parties in this case, which was denied by the Ombudsman in an Order61 dated March 11, 2014. His motion
for reconsideration62 thereof was likewise denied by the Ombudsman in an Order63 dated March 27, 2014.

Sen. Revilla likewise filed a Motion for Voluntary Inhibition (Of the Special Panel of Investigators),64which
was also denied by the Ombudsman in an Order65 dated March 7, 2014. His motion for
reconsideration66 thereof was further denied in an Order67 dated May 9, 2014.

In a Joint Resolution68 dated March 28, 2014 (March 28, 2014 Joint Resolution), the Ombudsman found
probable cause to indict, among others, petitioners Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one
(1) count of Plunder,69 and all the petitioners (along with several others), except Lim, of sixteen (16) counts
of violation of Section3 (e) of RA 3019.70

The Ombudsman found that the diversion and/or misuse of Sen. Revilla's PDAF was coursed through a
complex scheme involving various participants from Sen. Revilla's Office, the DBM, the IAs, and the JLN-
controlled NGOs. The Ombudsman then went on to conclude that through the said scheme, they were able
to siphon out government funds in the aggregate amount of P517,000,000.00, with at least
P224,512,500.00 received by Sen. Revilla.71

Thus, the Ombudsman held that probable cause exists against Sen. Revilla, Cambe, Napoles, De Asis, and
Lim for Plunder, considering that: (a) Sen. Revilla was a public officer at the time material to the charges;
(b) with the help of his co-accused, who are public officers and private individuals, Sen. Revilla amassed,
accumulated, or acquired ill-gotten wealth through their intricate modus operandi as described above; and
(c) such ill-gotten wealth amounted to at least P224,512,500.00,72 way more than the threshold amount of
P50,000,000.00 required in the crime of Plunder.73

In the same manner, the Ombudsman established probable cause to indict all the petitioners (along with
several others), except Lim, for violation of Section 3 (e) of RA 3019 in light of the following: (a) Sen.
Revilla, Cambe, and Relampagos, et al. are all public officers, while private individuals Napoles and De Asis
all conspired with these public officers; (b) said public officers exhibited manifest partiality to Napoles and
her cohorts by favoring her controlled NGOs without the benefit of public bidding and without having been
authorized by an appropriation law or ordinance, as legally mandated; (c) said public officers likewise
exhibited their bad faith by unduly benefiting from the "ghost" PDAF-funded projects through the receipt of
"commissions," "kickbacks," and the like; and (d) their collective acts caused undue injury to the
government in the aggregate amount of P517,000,000.00.74

Aggrieved, all the petitioners separately moved for the reconsideration75 of the March 28, 2014 Joint
Resolution. Specifically, Sen. Revilla, in his motion for reconsideration,76 pointed out that the Ombudsman's
use of the counter-affidavits, which documents he prayed to be furnished with in his denied Motion to be
Furnished, was a grave violation of his constitutionally guaranteed right to due process.
Pending resolution of the aforesaid motions for reconsideration, the Ombudsman issued a Joint Order77dated
May 7, 2014 granting Sen. Revilla's Motion to be Furnished, but only with respect to the counter-affidavits of
his six (6) co-respondents.78 He was also directed to file his comment thereon. Dissatisfied, Sen. Revilla
then filed an Omnibus Motion79 dated May 13,2014 praying for the: (a) partial reconsideration of the May 7,
2014 Joint Order; (b) recall of the March 28, 2014 Joint Resolution; and (c) re-conduct of the preliminary
investigation and reconstitution of another special panel of investigators.80The said Omnibus Motion having
been denied by the Ombudsman in an Order81 dated May 15, 2014, Sen. Revilla elevated the matter to this
Court via a petition for certiorari, docketed as G.R. Nos. 212427-28.

On June 4, 2014, the Ombudsman issued a Joint Order82 (June 4, 2014 Joint Order) denying petitioners'
motions for reconsideration for lack of merit and, thereby, affirming the March 28, 2014 Joint Resolution
with minor modifications to correct clerical errors.83 These Ombudsman's issuances led to the filing
of certiorari petitions before this Court, docketed as G.R. Nos. 212694-95, G.R. Nos. 212794-95, G.R.
Nos. 213477-78, G.R. Nos. 213532-33, and G.R. Nos. 213536-37.

Consequently, on June 6 and 9, 2014, Informations were filed by the Ombudsman before
the Sandiganbayan, charging: (a) Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of
Plunder, docketed as Criminal Case No. SB-14-CRM-0240;84 and (b) all the petitioners (along with several
others), except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019, docketed as Criminal
Case Nos. SB-14-CRM-0267 to 0282.85

To forestall the service of the warrant of arrest against him, Sen. Revilla filed on June 13, 2014, a Motion for
Judicial Determination of Probable Cause and Deferment and/or Suspension of Proceedings.86Likewise,
Relampagos, et al. moved that the Sandiganbayan declare lack of probable cause against them and suspend
proceedings.87

On June 19, 2014, the Sandiganbayan issued a Resolution, finding probable cause against petitioners and
their co-accused and, thereby, issued the corresponding warrants of arrest against them.88

Thereafter, Relampagos, et al. filed an Omnibus Motion for Reconsideration of the Resolution Dated 19 June
2014 with Motion to Recall Warrants of Arrest and to Defer Arraignment.89

In a Resolution90 dated August 28, 2014, the Sandiganbayan partially granted the said motion, and
dismissed Criminal Case Nos. SB-14-CRM-0267, 0270, 0271, 0274, 0277, 0278, 0281, and 0282 in so far as
Relampagos, et al. were concerned for the reason that the SAROs pertinent to these criminal cases were not
issued or signed by Relampagos, et al., but by then DBM Secretary Rolando Andaya. However,
the Sandiganbayan ordered the prosecution to present additional evidence to establish the existence of
probable cause against them in Criminal Case Nos. SB-14-CRM-0268, 0269, 0272, 0273, 0275, 0276, 0279,
and 0280.

The dismissal of Criminal Case Nos. SB-14-CRM-0267, 0270, 0271, 0274, 0277, 0278, 0281, and 0282
against Relampagos, et al. was appealed91 by the prosecution, but was denied by the Sandiganbayan in a
Resolution92 dated November 13, 2014. In the same Resolution, the Sandiganbayan affirmed the finding of
probable cause against Relampagos, et al. in Criminal Case Nos. SB-14-CRM-0268, 0269, 0272, 0273, 0275,
0276, 0279, and 0280 on the ground that the defenses they raised were evidentiary in character.93 In
particular, the Sandiganbayan held that the issue of whether the IA's endorsement was indispensable before
the SARO can be issued is a matter of evidence to be threshed out during trial.94

Hence, Relampagos, et al. filed a motion for partial reconsideration95 citing DBM Circular Letter No. 2015-1,
s. of 2015,96 which supposedly clarified that the IAs' endorsements are no longer required before the
issuance of the corresponding SARO. The said motion was denied by the Sandiganbayan in a
Resolution97 dated May 13, 2015, pointing out that said DBM Circular was issued only after the
Ombudsman's issuance of the March 28, 2014 Joint Resolution.98 Thus, Relampagos, et al. elevated the
issue before the Court via a petition for certiorari, docketed as G.R. Nos. 218744-59.

The Issue Before This Court

The core issue in this case is whether or not the findings of probable cause against all petitioners should be
upheld.

The Court's Ruling

All petitions are bereft of merit.

I. Cambe's Motion to Suspend Proceedings.

At the outset, the Court traverses the procedural issue raised by Cambe in his petition in G.R. Nos.
212014-15. In particular, Cambe seeks to annul and set aside the Ombudsman's March 14, 2014 Joint
Order which denied his motion to suspend proceedings, arguing that the COA's issuance of an Order of
Execution is a condition precedent to the filing of the criminal complaints against him. This relates to the
twelve (12) NDs received by the Office of Sen. Revilla on January 14, 2014 and February 4, 2014 pertaining
to expenditures charged against his PDAF during the period 2007 to 2009, docketed as SAO ND Nos. TRC-
2013-016-PDAF(07-09) to 019-PDAF(07-09)99 and NLDC-2014-013-PDAF(07-09) to 020-PDAF(07-
09),100 respectively, which Cambe claims should first attain finality; otherwise, the filing of the criminal
complaints would be premature pursuant to the COA's 2009 Revised Rules of Procedure.101

The Court disagrees.

The administrative aspect of the cases against Cambe and Sen. Revilla in relation to the COA's audit is
clearly separate and distinct from the criminal aspect covering the charges of Plunder and/or of violation of
Section 3 (e) of RA 3019 against them. Hence, the incidents related to it should have no effect on the filing
of the latter. In Villaseñor v. Sandiganbayan,102 this Court explained that:
[T]here are three kinds of remedies that are available against a public officer for impropriety in the
performance of his powers and the discharge of his duties: (1) civil, (2) criminal, and (3)
administrative [and that] [t]hese remedies may be invoked separately, alternately, simultaneously
or successively. Sometimes, the same offense may be the subject of all three kinds of remedies.

xxxx

It is clear, then, that criminal and administrative cases are distinct from each other. The settled rule is that
criminal and civil cases are altogether different from administrative matters, such that the first two will not
inevitably govern or affect the third and vice versa. Verily, administrative cases may proceed
independently of criminal proceedings.103
In Reyna v. COA (Reyna),104 this Court particularly declared that "[t]he criminal case filed before the Office
of the Ombudsman is distinct and separate from the proceedings on the disallowance before the COA."105

Cambe's reliance on Section 6, Rule XIII of the 2009 Revised Rules of Procedure of the COA is misplaced. As
worded, the provision only accounts for the possibility of the filing of criminal charges upon referral of the
audit findings to the Ombudsman:
Section 6. Referral to the Ombudsman. - The Auditor shall report to his Director all instances of failure or
refusal to comply with the decisions or orders of the Commission contemplated in the preceding sections.
The COA Director shall see to it that the report is supported by the sworn statement of the Auditor
concerned, identifying among others, the persons liable and describing the participation of each. He shall
then refer the matter to the Legal Services Sector who shall refer the matter to the Office of the
Ombudsman or other appropriate office for the possible filing of appropriate administrative or criminal
action.
Nowhere does the provision state any delimitation or precondition to the filing of such criminal charges. As
correctly pointed out by the Ombudsman, "an audit disallowance may not necessarily result in the imposition
of disciplinary sanctions or criminal prosecution of the responsible persons. Conversely, therefore, an
administrative or criminal case may prosper even without an audit disallowance. Verily, Rule XIII, Section 6
is consistent with the ruling in [Reyna] that a proceeding involving an audit disallowance is distinct and
separate from a preliminary investigation or a disciplinary complaint."106

In fine, the Ombudsman did not gravely abuse its discretion in promulgating its March 14, 2014 Joint Order
which denied Cambe's motion to suspend proceedings. Perforce, Cambe's petition in G.R. Nos. 212014-
15 is dismissed. That being said, the Court now proceeds to resolve the main substantive issue anent the
presence of probable cause against all petitioners.

II. Parameters of Review.

Time and again, this Court's consistent policy has been to maintain non-interference in the Ombudsman's
determination of the existence of probable cause, provided there is no grave abuse in the exercise of such
discretion. This observed policy is based not only in respect for the investigatory and prosecutory powers
granted by the 1987 Constitution to the Office of the Ombudsman, but upon practicality as well.107

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner
which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.108

Probable cause simply means "such facts as are sufficient to engender a well-founded belief that a crime has
been committed and that respondent is probably guilty thereof. The term does not mean 'actual and positive
cause' nor does it import absolute certainty. It is merely based on opinion and reasonable
belief."109 "[T]hus, a finding based on more than bare suspicion but less than evidence that would justify a
conviction would suffice."110

In determining the elements of the crime charged for purposes of arriving at a finding of probable cause,
"only facts sufficient to support a prima facie case against the [accused] are required, not
absolute certainty."111 In this case, the petitioners were charged with the crimes of Plunder and/or
violations of Section 3 (e) of RA 3019. Plunder, defined and penalized under Section 2112 of RA 7080, as
amended, has the following elements: (a) that the offender is a public officer, who acts by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons; (b) that he amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts described in Section 1 (d)113 thereof; and (c) that the
aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least Fifty
Million Pesos (P50,000,000.00).114 On the other hand, the elements of violation of Section 3 (e)115of RA
3019 are: (a) that the accused must be a public officer discharging administrative, judicial, or official
functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with
manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue
injury to any party, including the government, or giving any private party unwarranted benefits, advantage,
or preference in the discharge of his functions.116 In determining probable cause therefor, only a showing of
the ostensible presence of these elements is required.

It should be borne in mind that probable cause is determined during the context of a preliminary
investigation which is "merely an inquisitorial mode of discovering whether or not there is
reasonable basis to believe that a crime has been committed and that the person charged should
be held responsible for it."117 It "is not the occasion for the full and exhaustive display of the
prosecution's evidence."118 Therefore, "the validity and merits of a party's defense or accusation, as well as
the admissibility of testimonies and evidence, are better ventilated during trial proper than at the
preliminary investigation level."119 Accordingly, "owing to the initiatory nature of preliminary
investigations, the technical rules of evidence should not be applied in the course of its
proceedings."120 In this light, and as will be elaborated upon below, this Court has ruled that "probable
cause can be established with hearsay evidence, as long as there is substantial basis for crediting the
hearsay,"121 and that even an invocation of the rule on res inter alios acta at this stage of the proceedings is
improper.122
Guided by these considerations, the Court finds that the Ombudsman did not gravely abuse its discretion in
finding probable cause to indict Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of Plunder,
and all the petitioners, except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019.

III. Probable Cause Against Sen. Revilla.

First, in G.R. Nos. 212694-95, Sen. Revilla seeks to annul the March 28, 2014 Joint Resolution and the
June 4, 2014 Joint Order of the Ombudsman finding probable cause against him for the crimes charged,
Among others, Sen. Revilla faults the Ombudsman for allegedly disregarding his defense of forgery, and
further contends that in the absence of other competent testimony, the Ombudsman cannot consider the
whistleblowers' testimonies who purportedly were his co-conspirators in the PDAF scam, pursuant to the res
inter alios acta rule.

The petition holds no water.

The finding of probable cause against Sen. Revilla is amply supported by the evidence on record. At the
forefront are the PDAF documents, consisting of the written endorsements signed by Sen. Revilla123himself
requesting the IAs to release his PDAF funds to the identified JLN-controlled NGOs, as well as other
documents that made possible the processing of his PDAF, e.g., the MOAs executed by the legislator's office,
the IA, and the chosen NGO. All these documents - even those not actually signed by Sen. Revilla - directly
implicate him for the crimes charged, as they were nonetheless, all issued under the authority of his Office
as Senator of the Republic of the Philippines. In Belgica v. Ochoa (Belgica),124this Court observed that "the
defining feature of all forms of Congressional Pork Barrel would be the authority of legislators to participate
in the post-enactment phases of project implementation."125 "At its core, legislators may it be through
project lists, prior consultations or program menus - have been consistently accorded post-enactment
authority to identify the projects they desire to be funded through various Congressional Pork Barrel
allocations."126 It is through this mechanism that individual legislators, such as Sen. Revilla, were able to
practically dictate the entire expenditure of the PDAF allocated to their offices throughout the years.

In particular, the Ombudsman details that "the NGO endorsed by the legislator would be among those
organized and controlled by Napoles. In fact, these NGOs were specifically set by Napoles for the x x x
purpose [of having the PDAF funds released]."127 Napoles's staff would then "prepare the PDAF documents
for the approval of the legislator and reflecting the preferred NGO to implement the undertaking."128 These
documents "are transmitted to the IA which, in turn, handles the preparation of the MOA relating to the
project, to be executed by the legislator's office, the IA[,] and the NGO concerned." "The projects are
authorized as eligible under the DBM's menu for pork barrel allocations. [However,] [i]t bears noting
that the NGO is directly endorsed by the legislator [and that] [n]o public bidding or negotiated
procurement [took] place."129 As such, there was a defiance of Government Procurement Policy Board
(GPPB) Resolution No. 012-2007 which states that:
4.1 When an appropriation law or ordinance specifically earmarks an amount for projects to be specifically
contracted out to NGOs, the procuring entity may select an NGO through competitive bidding or
negotiated procurement under Section 53[(j)] of the [IRR-A]. (Emphasis and underscoring supplied)
Anent Sen. Revilla's claim that his signatures in the documentary evidence presented were forged, it must
be emphasized that "the findings of the x x x prosecutor [on the issue of forgery] should be
ventilated in a full-blown trial[.] [This] is highlighted by the reality that the authenticity of a questioned
signature cannot be determined solely upon its general characteristics, or its similarities or dissimilarities
with the genuine signature. The duty to determine the authenticity of a signature rests on the judge
who must conduct an independent examination of the signature itself in order to arrive at a
reasonable conclusion as to its authenticity. [As such], Section 22 of Rule 132 of the Rules of Court
explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting with writings
admitted or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine."130 Accordingly, Sen. Revilla's evidence of forgery, including the findings of his purported
handwriting experts, Rogelio G. Azores (Azores)131 and Forensic Document Examiner Atty. Desiderio A.
Pagui, (Pagui)132 cannot be readily credited at this stage of the proceedings.

Besides, the Ombudsman aptly observed that Azores and Pagui admittedly used mere photocopies of the
PDAF documents in their handwriting analyses.133 In Heirs of Gregorio v. Court of Appeals,134 this Court
ruled that "[w]ithout the original document containing the alleged forged signature, one cannot make a
definitive comparison which would establish forgery," and that "[a] comparison based on a mere [photo]
copy or reproduction of the document under controversy cannot produce reliable results."135Furthermore, it
may not be amiss to state that the credibility of Azores and Pagui as handwriting experts has yet to be
tested. They still have to authenticate their findings and be subjected to cross-examination. Without a
doubt, the prosecution should also be given a chance to properly contest Azores and Pagui's findings with
evidence of its own. It could all too well present its own handwriting experts during trial to rebut such
findings.

It is significant to emphasize that the Ombudsman had thoroughly passed upon the veracity of Sen. Revilla's
signatures on the PDAF documents. As explicitly stated in the March 28, 2014 Joint Resolution: "[a]t all
events, the Special Panel members, after a prima facie comparison with their naked eyes of the
questioned signatures appearing in the PDAF documents and the original signatures of [Sen.]
Revilla and Cambe in their respective counter-affidavits, opine that both sets of signatures, which
bear the same style and flourish, were written by one and the same hands."136 Verily, the
Ombudsman's own factual finding on the absence of forgery, at least for the purpose of determining
probable cause, should be regarded with utmost respect. "[F]indings of fact by the Office of the
Ombudsman are conclusive when supported by substantial evidence,"137 as in this case.

The Ombudsman's finding on the absence of forgery furthr gains credence in light of the July 20, 2011
Letter138signed by Sen. Revilla submitted to the COA (Confirmation Letter). The letter evinces on its
face that Sen. Revilla had confirmed the authenticity of his and Cambe's signatures appearing on the PDAF
documents:
After going through these documents and initial examination, it appears that the signatures and/or
initials on these documents are my signatures or that of my authorized representative.139
The Ombudsman further noted that the Confirmation Letter appeared to have originated from Sen. Revilla's
Office because it was issued Bar code/Reference No. 0-2011-13079.140

At this juncture, it deserves mentioning that while Luy indeed admitted that there were times that the
whistleblowers would forge the signatures of the legislators in the PDAF documents, he, however, explicitly
qualified that such forgeries were made "[w]ith the approval of Ms. Napoles kasi sila po ang nag-
uusap":
Sen. Escudero: Ang tanong ko, finorge or may finorge na ba kayong pirma ng senador o
congressman dahil pinepeke nga 'yong beneficiary, 'di ba, galing sa listahan ng kung sino. x x x.

Mr. Luy: With the approval of Ms. Napoles kasi sila po ang nag-uusap, mav pagkakataon po na
fino-forge po.

Sen. Escudero: May pagkakataong fino-forge [ninyo] ang pirma ng mambabatas?

Mr. Luy: Opo.141

Luy's testimony therefore explicates that although the whistleblowers would sometimes forge the legislators'
signatures, such were made with the approval of Napoles based on her prior agreement with the said
legislators. It is not difficult to discern that this authorization allows for a more expedient processing of
PDAF funds since the documents required for their release need not pass through the legislator's respective
offices. It is also apparent that this grant of authority gives the legislators room for plausible deniability: the
forging of signatures may serve as a security measure for legislators to disclaim their participation in the
event of discovery. Therefore, Luy's testimony completely makes sense as to why the legislators would
agree to authorize Napoles and her staff to forge their signatures. As such, even if it is assumed that the
signatures were forged, it does not mean that the legislators did not authorize such forgery.

The testimonies of the whistleblowers which the prosecution submitted before the Ombudsman - are, in
fact, the most integral evidence against Sen. Revilla, since they provide a detailed account on the inner
workings of the PDAF scam to which Sen. Revilla was directly involved. It should be pointed out that, of all
the Senators, only the Offices of Sen. Revilla, Sen. Juan Ponce Enrile (Sen. Enrile), and Sen. Jinggoy,
Estrada (Sen. Estrada) were explicitly implicated142 to have dealt with Napols in the plunder of their PDAF.
Also, it is apparent that whistleblowers Suñas, Sula, and Luy had personal knowledge of the conspiracy since
they were employees of JLN Corporation - the epicenter of the entire PDAF operation and in their respective
capacities, were individually tasked by N&poles to prepare the pertinent documents, liquidate the financial
transactions, follow up the release of the NCAs with the DBM, and/or facilitate the withdrawal of PDAF funds
deposited in the NGOs' accounts.143

Among others, it is interesting to note that, as per Luy's testimony, Sen. Revilla was given his own
codename, same as the other involved legislators with whom Napoles transacted with:

58. T: Maaari mo bang linawin itong sinasabi mong "codename"?

S: Ang pangalan pong taong [tumanggap] ng pera ang nilalagay ko sa

voucher pero minsan po ay codename ang nilalagay ko.

59. T: Sino ang nagbigay ng "codename"?

S: Si Madame JANET LIM NAPOLES po ang nagbigay ng codename kasi

daw po ay sa gobyerno kami nagta-transact.

60. T: Maaari mo bang sabihin kung anu-ano ang mga "codenames" ng

mga ka-transact ni JANET LIM NAPOLES na pulitiko o kanilang [Chief of
Staff]?

S: Opo. "TANDA" kay Senator Juan Ponce Enrile,

"SEXY/ANAK/KUYA" kay Senator Jinggoy
Estrada, "POGI" kay Senator Bong Revilla,
"GUERERA" kayCongressman Rizalina Seachon-Lanete,
"BONJING" kay Congressman RODOLFO PLAZA,
"BULAKLAK" kay Congressman SAMUEL DANGWA,
"SUHA" kayCongressman ARTHUR
PINGOY, at "KURYENTE" kay Congressman EDGAR VALDEZ. Mayroon
pa po ibang codename nasa records ko. Sa ngayon po ay sila lang po
ang aking naalala.144
As observed by this Court in the Reyes case, "the names of the legislators to whom the PDAF shares were
disbursed x x x were identified by the use of 'codenames.' These 'codenames,' which were obviously devised
to hide the identities of the legislators involved in the scheme, were known by a select few in the JLN
Corporation,"145 such as the whistleblowers. The level of detail of the whistleblowers' narration of facts would
surely impress upon a reasonable and prudent mind that their statements were not merely contrived. In
addition, the fact that they had no apparent motive as to why Sen. Revilla, among all others, would be
drawn by the whistleblowers, into such a high-profile case of plundet should likewise be taken into account.
Further, in Reyes, this Court observed that:
[W]histleblower testimonies - especially in corruption cases, such as this - should not be condemned, but
rather, be welcomed as these whistleblowers risk incriminating themselves in order to expose the
perpetrators and bring them to justice. In Re: Letter of Presiding Justice Conrado M. Vasquez, Jr. on CA-G.R.
SP No. 103692 (Antonio Rosete, et al. v. Securities and Exchange Commission, et al.) [590 Phil. 8, 49-50
(2008)], the Court gave recognition and appreciation to whistleblowers in corruption cases, considering that
corruption is often done in secrecy and it is almost inevitable to resort to their testimonies in order to pin
down the crooked public officers.146
Sen. Revilla opposes the admission of the whistleblowers' testimonies based on the res inter alios actarule.
However, in Reyes, citing Estrada v. Ombudsman,147 this Court had unanimously ruled that the testimonies
of the same whistleblowers against Jo Christine and John Christopher Napoles, children of Janet Napoles
who were also charged with the embezzlement of the PDAF, are admissible in evidence, considering that
technical rules of evidence are not binding on the fiscal during preliminary investigation. This Court was
unequivocal in declaring that the objection on res inter alios acta should falter:
Neither can the Napoles siblings discount the testimonies of the whistleblowers based on their invocation of
the res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights
of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a
conspirator under the parameters of Section 30 of the same Rule. To be sure, the foregoing rule
constitutes a technical rule on evidence which should not be rigidly applied in the course of
preliminary investigation proceedings. In Estrada, the Court sanctioned the Ombudsman's appreciation
of hearsay evidence, which would otherwise be inadmissible under technical rules on evidence, during the
preliminary investigation "as long as there is substantial basis for crediting the hearsay." This is because
"such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties."
Applying the same logic, and with the similar observation that there lies substantial basis for crediting the
testimonies of the whistleblowers herein, the objection interposed by the Napoles siblings under the
evidentiary res inter alios acta rule should falter. Ultimately, as case law edifies, "[t]he technical rules
on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary
investigation," as in this case.148(Emphases and underscoring supplied)
Absent any countervailing reason, the rule on stare decisis149 mandates a similar application of the foregoing
ruling to this case.

In any event, even if it is assumed that the rule on res inter alios acta were to apply during preliminary
investigation, the treatment of the whistleblowers' statements as hearsay is bound by the exception
on independently relevant statements. "Under the doctrine of independently relevant statements,
regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay
rule does not apply, and 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."150 Undoubtedly, the testimonies of the
whistleblowers are independently relevant to prove the involvement of Sen. Revilla and his coaccused in the
present controversy, considering their respective participations in the entire PDAF scam. Therefore, the
statements made by whistleblowers Suñas, Sula, and Luy, who were employees of JLN Corporation and
privy to the financial transactions of Napoles concerning, among others, Sen. Revilla's PDAF, should be given
consideration as they are directly, if not circumstantially, relevant to the issue at hand.

To add, the prosecution also presented Luy's ledger entries which corroborate his testimony that Sen.
Revilla dealt with Napoles and received PDAF kickbacks. Luy's records disclose that the kickbacks amountpd
to "at least P224,512,500.00: P10,000,000.00 for 2006; P61,000,000.00 for 2007; P80,000,000.00 for
2008; P40,000,000.00 for 2009; and P33,512,500.00 for 2010."151

Relatedly, it should be clarified that the fact that Luy did not personally know Sen. Revilla or that
none of the whistleblowers personally saw anyone handing/delivering money to Sen. Revilla
does not mean that they did not personally know of his involvement. Because of their functions in
JLN Corporation as above-stated, it is evident that they had personal knowledge of the fact that Napoles
named Sen. Revilla as one of the select-legislators she transacted with. More significantly, they personally
processed the PDAF funds and documents connected with Sen. Revilla's Office, which lasted for a
considerable amount of time, i.e., four (4) years [2006-2010 as charged]. As such, their testimonies should
not be completely disregarded as hearsay.

In any case, this Court has resolved that "probable cause can be established with hearsay evidence,
as long as there is substantial basis for crediting the hearsay."152 The substantial basis for crediting
the whistleblowers' testimonies, even if so regarded as hearsay, rests on their key functions in JLN
Corporation as above-mentioned, as well as the collective evidence gathered by the prosecution tending to
support the same conclusion that Sen. Revilla and his alleged co-conspirators acted in concert to pillage his
PDAF funds.

The prosecution further submitted the affidavits of Sen. Revilla's corespondents which constitute direct
evidence that provide an account of Sen. Revilla's involvement, this time from the perspective of certain IA
officials.

Among others, National Livelihood Development Corporation Director IV Emmanuel Alexis G. Sevidal,
echoed the Ombudsman's finding that "[Sen.] Revilla, through Cambe, [was] responsible for 'identifying the
projects, determining the project costs and choosing the NGOs' which was manifested in the letters of [Sen.]
Revilla[.]"153

For his part, Technology Resource Center (TRC) Deputy, Director General Dennis L. Cunanan (Cunanan)
narrated that he met Janet Napoles sometime in 2006 or 2007. According to him, Napoles introduced herself
as "the representative of certain legislators who supposedly picked TRC as a conduit for PDAF-funded
projects"; at the same occasion, Napoles told him that "her principals were then Senate President
[Enrile], [Sen. Revilla], [and] [Sen. Estrada.]" Cunanan further averred that he "often ended up taking
and/or making telephone verifications and follow-ups and receiving legislators or their staff members," all in
connection with PDAF projects. In addition, Cunanan even conveyed that Luy would occasionally go to his
office to pressure him to expedite the release of the PDAF funds by calling the offices of the legislators
concerned.154

Cunanan's statements were furthr corroborated by TRC Department Manager III Francisco B. Figura
(Figura), wno averred that legislators would "highly recommend" NGOs/foundations as conduit implementors
and that if TRC disagreed with their recommendations, said legislators wquld feel insulted and take away
their PDAF from TRC, resulting in the latter losing the chance to earn service fees.155According to Figura, this
set up rendered TRC officials powerless to disregard the wishes of Sen. Revilla especially on the matter of
public bidding for the PDAF projects.156

At this juncture, this Court would like to dispel the notion. that due process rights were violated when Sen.
Revilla was denied copies of the counter-affidavits of his co-respondents in the preliminary investigation
proceedings before the Ombudsman as he argues in G.R. Nos. 212427-28. This matter was already
resolved in the similar case of Estrada, where this Court said:
Both the Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman
require the investigating officer to furnish the respondent with copies of the affidavits of the complainant
and affidavits of his supporting witnesses. Neither of these Rules require the investigating officer to furnish
the respondent with copies of the affidavits of his [co-respondents]. The right of the respondent is only
"to examine the evidence submitted by the complainant," as expressly stated in Section 3 (b), Rule
112 of the Revised Rules of Criminal Procedure. This Court has unequivocally ruled in Paderanga that
"Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the respondent shall
only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties. or their
witnesses, to be afforded an opportunity to be present but without the right to examine or cross-examine."
Moreover, Section 4 (a, b and c), of Rule II of the Ombudsman's Rule of Procedure, read together, only
require the investigating officer to furnish the respondent with copies of the affidavits of the complainant
and his supporting witnesses. There is no law or rule requiring the investigating officer to furnish
the respondent with copies of the affidavits of his co-respondents.157
In any event, the Ombudsman in this case went beyond its legal duty and eventually granted Sen. Revilla's
requests to be furnished with said counter-affidavits, and even afforded him the opportunity to comment
thereto.158 Thus, there is more reason to decline his flawed claims of denial of due process. Case law
statethat the touchstone of due process is the opportunity to be heard,159 which was undeniably afforded to
Sen. Revilla in this case.

The findings of the COA in its SAO Report No. 2012-2013 (COA report)160 also buttress the finding of
probable cause against Sen.Revilla. This report presents'in detail the various irregularities in the
disbursement of the PDAF allocations of several legislators in the years 2007 to 2009, such as: (a) the IAs
not actually implementing the purported projects, and instead, directly releasing the funds to the NGOs after
deducting a "management fee," which were done at the behest of the sponsoring legislator,
including Sen. Revilla; (b) the involved NGOs did not have any track record in the implementation of
government projects, provided fictitious addresses, submitted false documents, and were selected without
any public bidding and complying with COA Circular No. 2607-001 and GPPB Resolution No. 12-2007; and
(c) the suppliers who purportedly provided supplies to the NGOs denied ever dealing with the latter.
Resultantly, the COA Report concluded that the PDAF-funded projects of Sen. Revilla were "ghost" or
inexistent.161

The findings in the COA report were further corroborated by the field verifications conducted by the Field
Investigation Office - Office of the Ombudsman (FIO) to determine whether or not Sen. Revilla's PDAF
was indeed utilized for its intended livelihood projects. In the course of investigation, it was revealed that
the mayors and municipal agriculturists, who had reportedly received livelihood assistance kits/packages,
purportedly procured through Sen. Revilla's PDAF, actually denied receiving the same and worse, were not
even aware of any PDAF-funded projects intended for their benefit. Moreover, the signatures on the
certificates of acceptance and delivery reports were forged, and in fact, the supposed beneficiaries listed
therein were neither residents of the place where they were named as such; had jumbled surnames;
deceased; or even downright fictitious. The foregoing led the FIO to similarly conclude that the purported
livelihood projects were "ghost" projects, and that its proceeds amounting to P517,000,000.00 were never
used for the same.162

Taking together all of the above-stated pieces of evidence, the COA and FIO reports tend to prima
facieestablish that irregularities had indeed attended the disbursement of Sen. Revilla's PDAF and that he
had a hand in such anomalous releases, being the head of Office which unquestionably exercised operational
control thereof. As the Ombudsman correctly observed, "[t]he PDAF was allocated to him by virtue of his
position as a Senator, and therefore he exercise[d] control in the selection of his priority projects and
programs. He indorsed [Napoles's] NGOs in consideration for the remittance of kickbacks and commissions
from Napoles. Compounded by the fact that the PDAF-funded projects turned out to be 'ghost projects', and
that the rest of the PDAF allocation went into the pockets of Napoles and her cohorts, [there is probable
cause to show that] Revilla thus unjustly enriched himself at the expense and to the damage and prejudice
of the Filipino people and the Republic of the Philippines."163 Hence, he should stand trial for violation of
Section 3 (e) of RA 3019. For the same reasons, it is apparent that ill-gotten wealth in the amount of at
least P50,000,000.00 (i.e., P224,512,500.00) were amassed, accumulated or acquired through a
combination or series of overt acts stated in Section 1 of the Plunder Law. Therefore, Sen. Revilla should
likewise stand trial for Plunder.

Besides, case law holds164 that once the trial court finds probable cause, which results in the issuance of a
warrant of arrest (as the Sandiganbayan in this case, with respect to Sen. Revilla and his copetitioners165),
any question on the prosecution's conduct of preliminary investigation becomes moot.

In fine, Sen. Revilla's petitions in G.R. Nos. 212427-28 and G.R. Nos. 212694-95 are dismissed for lack
of merit.

IV. Probable Cause Against Cambe.

The same conclusion obtains with respect to the petition of Cambe in G.R. Nos. 212794-95 assailing the
Ombudsman's finding of probable cause against him, as well as its failure to furnish him copies of his co-
respondents' counter-affidavits.

The above-discussed pieces of evidence are all equally significant to establish probable cause against
Cambe. There is no dispute that Ca:mbe was Sen. Revilla's trusted aide, being his Chief of Staff. By such
authority, he also exercised operational control over the affairs of Sen. Revilla's office, including the
allocation of his PDAF. In fact, Cambe's signatures explicitly appear on several PDAF documents, such as the
MOAs allowing the IAs to transfer Sen. Revilla's PDAF funds allocated for certain projects to various JLN-
controlled NGOs.166

Moreover, Cambe was personally identified by the whistleblowers to have received PDAF money for himself
and for Sen. Revilla. As recounted by Luy, Cambe was the one who would go to Napoles's office and receive
cash from the latter in the aggregate amount of P224,512,500.00 representing Sen. Revilla's "commissions"
or "kickbacks" coming from the PDAF scam. The cash would come either from Luy's vault or from Napoles
herself.167 In simple terms, Cambe allegedly acted as a liaison between Sen. Revilla and Napoles.

For the same reasons above-discussed, there should be no valid objection against the appreciation of the
PDAF documents and whistleblowers' testimonies as evidence to establish probable cause against Cam be at
this stage of the proceedings. He also has no right to be furnished copies of the counter-affidavits ,of his co-
respondents. Thus, this Court holds that Cambe should likewise stand trial for the crimes charged, and his
petition in G.R. Nos. 212014-15 be dismissed.

V. Probable Cause Against Napoles.

In G.R. Nos. 213536-37, Janet Napoles similarly seeks to nullify the Ombudsman's March 28, 2014 Joint
Resolution and June 4, 2014 Joint Order finding probable cause against her for Plunder and for violation of
Section 3 (e) of RA 3019. Essentially, she argues that the complaints did not establish the specific acts of
the crimes she supposedly committed. She likewise contends that since she is not a public officer, she
cannot be subjected to prosecution by the Ombudsman before the Sandiganbayan.

Napoles's arguments are untenable.

Records clearly show that Napoles, in all reasonable likelihood, played an integral role in the illegal
utilization, diversion, and disbursement of Sen. Revilla's PDAF. In fact, she was tagged as the mastermind of
the entire PDAF scam. As outlined by the Ombudsman, Napoles would approach legislators, such as Sen.
Revilla, and "offer to 'acquire' his x x x PDAF allocation in exchange for a 'commission' or kickback
amounting to a certain percentage of the PDAF."168 Once Napoles was informed of the availability of Sen
Revilla's PDAF, she and/or her staff would prepare listings of the available projects specifically indicating the
IAs which would carry out the same. After the listings are released by Sen. Revilla's Office, Napoles would
then give a down payment from her own pockets for delivery to Sen. Revilla, or in case of his unavailability,
to Cambe who would receive the same on Sen. Revilla's behalf. Once the SARO and/or the NCA regarding
said project is released, Napoles would then deliver the promised "kickbacks" to Sen. Revilla. Thereafter,
Sen. Revilla and/or Cambe would endorse Napoles's NGOs to undertake the PDAF-funded projects, all of
which turned out to be "ghost" or "inexistent;" thus, allowing Napoles and her cohorts to pocket the PDAF
allocation.169

Based on the evidence in support thereof such as the PDAF documents, whistleblowers' testimonies, the
accounts of the IA officials, and the COA report, as well as the field verifications of the FIO, Ombudsman,
this Court is convinced that there lies probable cause against Janet Napoles for the charge of Plunder as it
has been prima facie established that she, in conspiracy with Sen. Revilla, Cambe, and other personalities,
was significantly involved in the afore-described modus operandi to obtain Sen. Revilla's PDAF amounting to
at least P50,000,000.00 in "kickbacks." In the same manner, there is probable cause against Napoles for
violations of Section 3 (e) of RA 3019, as it is ostensible that their conspiracy to illegally divert PDAF Funds
to "ghost" projects caused undue prejudice to the government.

That a private individual, such as Napoles, could not be charged for Plunder and violations of Section 3 (e)
of RA 3019 because the offenders in those crimes are public officers is a complete misconception. It has
been long-settled that while the primary offender in the aforesaid crimes are public officers, private
individuals may also be held liable for the same if they are found to have conspired with said officers
in committing the same. This proceeds from the fundamental principle that in cases of conspiracy, the act
of one is the act of all.170 In this case, since it appears that Napoles has acted in concert with public officers
in the systematic pillaging of Sen. Revilla's PDAF, the Ombudsman correctly indicted her as a co-conspirator
for the aforementioned crimes.

Thus, Napoles's petition in G.R. Nos. 213536-37 is dismissed.

VI. Probable Cause Against De Asis.

In G.R. Nos. 213477-78, De Asis accuses the Ombudsman of gravely abusing its discretion in finding
probable cause against him for Plunder and violations of Section 3 (e) of RA 3019, contending, inter alia,
that the performance of his functions as driver and messenger of Napoles hardly constitutes overt acts of
the aforesaid crimes or a willful participation thereof. In this regard, he asserts that as a mere high school
graduate and former security guard, it is highly unimaginable for him to conspire with his employer and
other high-ranking government officials to commit the aforesaid crimes.

The petition has no merit.

Records show that De Asis was designated as the President/Incorporator171 of KPMFI which was one of the
many NGOs controlled by Napoles that was used in the embezzlement of Sen. Revilla's PDAF
allocations.172 Moreover, whistleblowers Luy and Suñas explicitly n,amed De Asis as one of those who
prepared money to be given to the lawmaker.173 Said whistleblowers even declared that De Asis, among
others, rec ived the checks issued by the IAs to the NGOs and deposited the same in the bank; and that,
after the money is withdrawn from the bank, he was also one of those tasked to bring the money to Janet
Napoles's house.174 Indeed, the foregoing prove to be well-grounded bases to believe that, in all probability,
De Asis conspired with the other co-accused to commit the crimes charged.

To refute the foregoing allegations, De Asis presented defenses which heavily centered on his perceived
want of criminal intent, as well as the alleged absence of the elements of the crimes charged. However, such
defenses are evidentiary in nature, and thus, are better ventilated during trial and not during preliminary
investigation. To stress, a preliminary investigation is not the occasion for the full and exhaustive display of
the prosecution's evidence; and the presence or absence of the elements of the crime is evidentiary in
nature and is a matter of defense that may be passed upon only after a full-blown trial on the merits.175

In sum, the Ombudsman did not gravely abuse its discretion in finding probable cause to indict De Asis for
the crimes charged. Consequently, his petition in G.R. Nos. 213477-78 is dismissed.

VII. Probable Cause Against Lim.

In G.R. Nos. 213532-33, Lim argues that the Ombudsman. gravely abused its discretion in finding
probable cause against him for Plunder. According to him, the criminal complaints do not allege a specific
action he committed that would demonstrate his involvement for the crime charged.

Lim's contention is without merit.

As correctly pointed out by the Ombudsman, whistleblowers Luy and Suñas narrated that over the course of
the perpetuation of the PDAF scam, they, along with the other staff of Napoles - which includes Lim - would
prepare, and thereafter deliver, the kickbacks intended for Sen. Revilla.176 The preparation and delivery of
kickbacks to the legislator and/or his trusted staff are indeed overt acts that relate to his involvement in the
PDAF scheme. To note, even if it is assumed that Lim only prepared the money and did not deliver the same
as he claims,177 the act of preparation is still connected to the common objective of the conspiracy.
Accordingly, this establishes the existence of probable cause against him for thb crime charged. Hence, his
petition in G.R. Nos. 213532-33 is likewise dismissed.

VIII. Probable Cause Against Relampagos, et al.

Meanwhile, in G.R. Nos. 218744-59, DBM employees Relampagos, Nuñez, Paule, and Bare assail the
Sandiganbayan Resolutions dated November 13, 2014178 and May 13, 2015179 which judicially found
probable cause against them for eight (8) counts of violation of Section 3 (e) of RA 3019, thereby affirming
the Ombudsman's earlier finding of probable cause against them (at least for the said eight [8] counts that
were affirmed). In particular, they argue that: (a) they cannot be faulted for issuing the SAROs without prior
IA endorsement as it was authorized under the General Appropriations Acts (GAAs) for the years 2007 to
2009; and (b) there was no "undue haste" in the issuance of the said SAROs as the DBM itself prescribes
shorter periods in the processing of the same.180

Relampagos, et al.'s arguments fail to persuade.

As pointed out by the Ombudsman and the Sandiganbayan, some of the SAROs and NCAs issued in the
perpetuation of the PDAF scam were issued by the Office of Relampagos as DBM Undersecretary, where
Nuñez, Paule, and Bare are all working - a finding that they themselves did not dispute.181 More
significantly: (a) whistleblower Luy positively identified Relampagos, et al. as Napoles's "contact
persons" in the DBM; and (b) the COA Report found irregularities in their issuances of the aforesaid
SAROs and NCAs.182 Ostensibly, these circumstances show Relampagos et al.'s manifest partiality and bad
faith in favor of Napoles and her cohorts that evidently caused undue prejudice to the Government. Thus,
they must stand trial for violation of Section 3 (e) of RA 3019.

As to their contentions that there was no "undue haste" in the issuance of the said SAROs as the GAAs for
the years 2007 to 2009 authorized such issuances even without prior IA endorsement and that the DBM
itself prescribes a shorter processing time for the same, suffice it to say that these are matters of defense
that are better ventilated in a full-blown trial. The timing of the SARO releases by these DBM officials, as
well as any deviations from legal procedure are but part of a multitude of factors to be threshed out during
trial in order to determine their exact culpability. Verily, the confines of a preliminary investigation do not
yet allow a full exposition of the parties' claims. Relampagos, et al.'s petition in G.R. Nos. 218744-59 is
therefore dismissed.

Conclusion

Case law states that "the Ombudsman's finding of probable cause does not touch on the issue of guilt or
innocence of the accused. It is not the function of the Office of the Ombudsman to rule on such issue. All
that the Office of the Ombudsman did was to weigh the evidence presented together with the counter-
allegations of the accused and determine if there was enough reason to believe that a crime has been
committed and that the accused are probably guilty thereof."183 In the review of the Ombudsman's
determination of probable cause, we are guided by this Court's pronouncement in Vergara v.
Ombudsman,184 where it was ruled that:
[C]ourts do not interfere in the Ombudsman's exercise of discretion in determining probable cause unless
there are compelling reasons. The Ombudsman's finding of probable cause, or lack of it, is entitled to great
respect absent a showing of grave abuse of discretion. Besides, to justify the issuance of the writ
of certiorari on the ground of abuse of discretion, the abuse must be grave, as when the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent as to
amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all,
in contemplation of law, as to be equivalent to having acted without jurisdiction.185
Meanwhile, with respect to the Sandiganbayan's judicial determination of probable cause, this Court,
in Delos-Santos Dio v. Court of Appeals,186 enlightens that:
[A] judge's discretion to dismiss a case immediately after the filing of the information in court is appropriate
only when the failure to establish probable cause can be clearly inferred from the evidence presented and
not when its existence is simply doubtful. After all, it call)lot be expected that upon the filing of the
information in court the prosecutor would have already presented all the evidence necessary to secure a
conviction of the accused, the objective of a previously-conducted preliminary investigation being merely to
determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should be held for trial.187
In this case, the Ombudsman (and the Sandiganbayan as to Relampagos, et al.) did not err in finding
probable cause against all the petitioners. Their findings are fully supported by the evidence on record and
no semblance of misapprehension taints the same. Moreover, this Court cannot tag key documentary
evidence as forgeries and bar testimonies as hearsay at this stage of the proceedings; otherwise, it would
defy established principles and norms followed during preliminary investigation. Jurisprudence teaches us
that "[i]n dealing with probable cause[,] athe very name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act. The standard of proof is accordingly correlative to what must be
proved."188 Overall, based on the foregoing disquisitions, the standard of probable cause was adequately
hurdled by the prosecution in this case. As such, no grave abuse of discretion was committed by the
Ombudsman and the Sandiganbayan in the proceedings a quo. All the petitioners should therefore stand
trial for the crimes they were charged.

WHEREFORE, the petitions are DISMISSED for lack of erit. The findings of probable cause against all
petitioners are hereby AFFIRMED and the Sandiganbayan, as trial court, is DIRECTED to
commence/continue with the necessary proceedings in these cases with deliberate dispatch.

SO ORDERED. cralawlawlibra ry

Sereno, C. J., Carpio, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes,
and Leonen, JJ., concur.
Velasco, Jr., J., Please Dissenting Opinion.
Jardeleza, J., No part prior OSG action.
Caguioa, J., On leave but left my vote.

FIRST DIVISION

[ G.R. No. 222730, November 07, 2016 ]

BUENAFLOR CAR SERVICES, INC., PETITIONER, VS. CEZAR

DURUMPILI DAVID, JR., RESPONDENT.

DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari[1] are the Decision[2] dated
November 3, 2015 and the Resolution[3] dated February 9, 2016 of the
Court of Appeals (CA) in CA-G.R. SP No. 139652, which affirmed with
modification the Resolutions dated November 28, 2014[4] and February 9,
2015[5] of the National Labor Relations Commission (NLRC) in NLRC LAC
No. 11-002727-14, finding respondent Cezar Durumpili David, Jr.
(respondent) to have been illegally dismissed, and holding petitioner
Buenaflor Car Services, Inc. (petitioner) solely liable for the monetary
award.

The Facts

Respondent was employed as Service Manager by petitioner, doing

business under the trade name "Pronto! Auto Services." In such capacity,
he was in charge of the overall day-to-day operations of petitioner,
including the authority to sign checks, check vouchers, and purchase
orders.[6]

In the course of its business operations, petitioner implemented a company

policy with respect to the purchase and delivery of automotive parts and
products. The process begins with the preparation of a purchase order by
the Purchasing Officer, Sonny D. De Guzman (De Guzman), which is
thereafter, submitted to respondent for his review and approval. Once
approved and signed by respondent and De Guzman, the duplicate copy of
the said order is given to petitioner's supplier who would deliver the
goods/supplies. De Guzman was tasked to receive such goods and
thereafter, submit a copy of the purchase order to petitioner's Accounting
Assistant, Marilyn A. Del Rosario (Del Rosario), who, in turn, prepares the
request for payment to be reviewed by her immediate supervisor,[7] Finance
Manager and Chief Finance Officer Ruby Anne B. Vasay (Vasay). Once
approved, the check voucher and corresponding check are prepared to be
signed by any of the following officers: respondent, Vasay, or Vice President
for Operations Oliver S. Buenaflor (Buenaflor).[8] It was company policy
that all checks should be issued in the name of the specific supplier and not
in "cash," and that the said checks are to be picked up from Del Rosario at
the company's office in Muntinlupa City.[9]

On August 8, 2013, Chief Finance Officer Cristina S. David (David) of

petitioner's affiliate company, Diamond IGB, Inc., received a call from the
branch manager of ChinaBank, SM City Bicutan Branch, informing her that
the latter had cleared several checks issued by petitioner bearing the words
"OR CASH" indicated after the payee's name. Alarmed, David requested for
petitioner's Statement of Account with scanned copies of the cleared checks
bearing the words "OR CASH" after the payee's name. The matter was then
immediately brought to petitioner's attention through its President,
Exequiel T. Lampa (Lampa), and an investigation was conducted.[10]

On August 22, 2013, Lampa and petitioner's Human Resource Manager,

Helen Lee (Lee), confronted Del Rosario on the questioned checks. Del
Rosario readily confessed that upon respondent's instruction, she inserted
the words "OR CASH" after the name of the payees when the same had
been signed by all the authorized signatories. She also implicated De
Guzman, who was under respondent's direct supervision, for preparing
spurious purchase orders that were used as basis in issuing the subject
checks, as well as petitioner's messenger/driver, Jayson G. Caranto
(Caranto), who was directed to encash some of the checks, with both
persons also gaining from the scheme.[11] Her confession was put into
writing in two (2) separate letters both of even date (extrajudicial
confession).[12]

As a result, respondent, together with Del Rosario, De Guzman, and

Caranto, were placed under preventive suspension[13] for a period of thirty
(30) days, and directed to submit their respective written explanations. The
ensuing investigation revealed that there were twenty-seven (27) checks
with the words "OR CASH" inserted after the payee's name, all signed by
respondent and either Vasay or Buenaflor, in the total amount of
P1,021,561.72.[14]
For his part,[15] respondent vehemently denied the charges against him. He
claimed that he has no control over the company's finance and billing
operations, nor the authority to instruct Del Rosario to make any check
alterations, which changes, if any, must be made known to Vasay or
Buenaflor.

On September 20, 2013, respondent and his co-workers were served their
respective notices of termination[16] after having been found guilty of
violating Items B (2), (3) and/or G (3) of the company's Code of Conduct
and Behavior, particularly, serious misconduct and willful breach of trust.
Aggrieved, respondent, De Guzman, and Caranto filed a complaint[17] for
illegal dismissal with prayer for reinstatement and payment of damages
and attorney's fees against petitioner, Diamond IGB, Inc., and one Isagani
Buenaflor before the NLRC, docketed as NLRC RAB No. NCR-10-13915-13.

In the meantime, Lee, on behalf of petitioner, filed a criminal

complaint[18] for twenty-seven (27) counts of Qualified Theft through
Falsification of Commercial Documents against respondent, De Guzman,
Caranto, and Del Rosario, before the Office of the Muntinlupa City
Prosecutor, alleging that the said employees conspired with one another in
devising the afore-described scheme. In support thereof, petitioner
submitted the affidavits of Buenaflor[19] and Vasay,[20] which stated that at
the time they signed the questioned checks, the same did not bear the
words "OR CASH," and that they did not authorize its insertion after the
payee's name. While the City Prosecutor initially found probable cause only
against Del Rosario in a Resolution[21] dated November 25, 2014, the same
was reconsidered[22] and all the four (4) employees were indicted in an
Amended Information[23] filed before the Regional Trial Court of
Muntinlupa City, docketed as Criminal Case No. 14-1065.

The LA Ruling

In a Decision dated September 29, 2014, the Labor Arbiter (LA) ruled that
respondent, De Guzman, and Caranto were illegally dismissed, and
consequently, awarded backwages, separation pay and attorney's
fees.[24] The LA observed that petitioner failed to establish the existence of
conspiracy among respondent, De Guzman, Caranto, and Del Rosario in
altering the checks and that the latter's extrajudicial confession was
informally made and not supported by evidence.[25]

Dissatisfied, petitioner appealed to the NLRC.

 The NLRC Ruling

In a Resolution[26] dated November 28, 2014, the NLRC affirmed with

modification the LA's Decision, finding De Guzman and Caranto to have
been dismissed for cause, but sustained the illegality of respondent's
termination from work.

In so ruling, the NLRC held that since De Guzman prepared the purchase
orders that were the basis for the issuance of the questioned checks, it could
not be discounted that the latter may have participated in the scheme,
benefited therefrom, or had knowledge thereof. Similarly, it did not give
credence to Caranto's bare denial of the illegal scheme, noting that he still
encashed the questioned checks upon the instruction of Del Rosario despite
knowledge of the company's policy on the matter. On the other hand, the
NLRC found Del Rosario's extrajudicial confession against respondent
insufficient, holding that the records failed to show that the latter had a
hand in the preparation and encashment of the checks; hence, his dismissal
was without cause and therefore, illegal.[27]

Unperturbed, petitioner filed a motion for partial reconsideration,[28] which

the NLRC denied in a Resolution[29] dated February 9, 2015, prompting the
former to elevate the matter to the CA via a petition for certiorari.[30]

The CA Ruling

In a Decision[31] dated November 3, 2015, the CA found no grave abuse of

discretion on the part of the NLRC in holding that respondent was illegally
dismissed. It ruled that Del Rosario's extrajudicial confession only bound
her as the confessant but constitutes hearsay with respect to respondent
and the other co-accused under the res inter alios acta rule. Moreover,
while respondent was a signatory to the checks in question, the CA noted
that at the time these checks were signed, the words "OR CASH" were not
yet written thereon. As such, the CA held that no substantial evidence
existed to establish that respondent had breached the trust reposed in him.

However, the CA absolved petitioner's corporate officer, Isagani Buenaflor,

from payment of the monetary awards for failure to show any malicious act
on his part, stating the general rule that obligations incurred by the
corporation, acting thru its directors, officers, and employees, are its sole
liabilities. In the same vein, Diamond IGB, Inc. was also absolved from
liability, considering that, as a subsidiary, it had a separate and distinct
juridical personality from petitioner.[32]

Petitioner moved for partial reconsideration,[33] which the CA denied in a

Resolution[34] dated February 9, 2016; hence, the instant petition.

The Issue Before the Court

The essential issue for the Court's resolution is whether or not the CA
committed reversible error in upholding the NLRC's ruling that respondent
was illegally dismissed.

The Court's Ruling

The petition is meritorious.

Fundamental is the rule that an employee can be dismissed from

employment only for a valid cause. The burden of proof rests on the
employer to prove that the dismissal was valid, failing in which, the law
considers the matter a case of illegal dismissal.[35]

Article 297 of the Labor Code, as renumbered,[36] enumerates the just

causes for termination of an employment, to wit:

ART. 297. Termination by Employer. An employer may terminate an

employment for any of the following causes:

Serious misconduct or willful disobedience by the employee of the

(a) lawful orders of his employer or representative in connection with his
work;

(b) Gross and habitual neglect by the employee of his duties;

Fraud or willful breach by the employee of the trust reposed in

(c)
him by his employer or duly authorized representative;

Commission of a crime or offense by the employee against the person of

(d) his employer or any immediate member of his family or his duly
authorized representatives; and

(e) Other causes analogous to the foregoing. (Emphases supplied)

In the case at bar, respondent's termination was grounded on his violation

of petitioner's Code of Conduct and Behavior, which was supposedly
tantamount to (a) serious misconduct and/or (b) willful breach of the trust
reposed in him by his employer.

Misconduct is defined as an improper or wrong conduct. It is a

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 mere error in judgment.[37] For
serious misconduct to be a just cause for dismissal, the concurrence of the
following elements is required: (a) the misconduct must be serious; (b) it
must relate to the performance of the employee's duties showing that the
employee has become unfit to continue working for the employer; and (c) it
must have been performed with wrongful intent.[38]

On the other hand, for loss of trust to be a ground for dismissal, the
employee must be holding a position of trust and confidence, and there
must be an act that would justify the loss of trust and confidence.[39] While
loss of trust and confidence should be genuine, it does not require proof
beyond reasonable doubt, it being sufficient that there is some basis
for the misconduct and that the nature of the employee's
participation therein rendered him unworthy of the trust and
confidence demanded by his position.[40]

Petitioner's claims of serious misconduct and/or willful breach of trust

against respondent was hinged on his alleged directive to petitioner's
Accounting Assistant, Del Rosario, to insert the word "OR CASH" in the
checks payable to petitioner's supplier/s after the same had been sigued by
the authorized officers contrary to company policy. Accordingly,
respondent was accused of conspiring with his co-employees in the
irregular issuance of twenty-seven (27) checks which supposedly resulted in
the defraudation of the company in the total amount of P1,021,561.72.[41]

While there is no denying that respondent holds a position of trust as he

was charged with the overall day-to-day operations of petitioner, and as
such, is authorized to sign checks, check vouchers, and purchase orders, he
argues, in defense, that he had no control over the company's finance and
billing operations, and hence, should not be held liable. Moreover, he
asserts that he had no power to instruct Del Rosario to make any check
alterations, which changes, if any, must be made known to Vasay or
Buenaflor.

Although respondent's statements may be true, the Court, nonetheless,

observes that it is highly unlikely that respondent did not have any
participation in the above-mentioned scheme to defraud petitioner. It is
crucial to point out that the questioned checks would not have been issued
if there weren't any spurious purchase orders. As per company policy, the
procurement process of petitioner begins with the preparation of purchase
orders by the Purchasing Officer, De Guzman. These purchase orders
have to be approved by respondent himself before the delivery
and payment process can even commence. It is only after the
issuance of the approved purchase orders that petitioner's suppliers are
directed to deliver the ordered goods/supplies, and from there, requests for
payment and the issuance of checks (through Del Rosario) would be made.
Thus, being the approving authority of these spurious purchase orders,
respondent cannot disclaim any culpability in the resultant issuance of the
questioned checks. Clearly, without the approved purchase orders, there
would be no delivery of goods/supplies to petitioner, and consequently, the
payment procedure would not even begin. These purchase orders were, in
fact, missing from the records, and respondent, who had the primary
authority for their approval, did not, in any manner, account for them.

Notably, the fact that respondent signed the checks prior to their
alterations does not discount his participation. To recall, the checks
prepared by Del Rosario were first reviewed by her immediate supervisor,
Finance Manager and Chief Finance Officer, Vasay, and once approved, the
check vouchers and corresponding checks were signed by respondent,
followed by either Vasay, or Vice President for Operations Buenaflor. To
safeguard itself against fraud, the company implemented the policy that all
checks to its suppliers should be issued in their name and not in "cash."
Thus, if the checks would be altered prior to the signing of all these
corporate officers, then they would obviously not pass petitioner's protocol.
It is therefore reasonable to conclude that the alterations were calculated to
be made after all the required signatures were obtained; otherwise, the
scheme would not come into fruition.

Respondent was directly implicated in the controversy through the

extrajudicial confession of his co-employee, Del Rosario, who had admitted
to be the author of the checks' alterations, although mentioned that she did
so only upon respondent's imprimatur. The NLRC, as affirmed by the CA,
however, deemed the same to be inadmissible in evidence on account of
the res inter alios acta rule, which, as per Section 30,[42] Rule 130 of the
Rules of Court, provides that the rights of a party cannot be prejudiced by
an act, declaration, or omission of another. Consequently, an extrajudicial
confession is binding only on the confessant and is not admissible
against his or her co-accused because it is considered as hearsay
against them.[43]

However, the NLRC should not have bound itself by the technical rules of
procedure as it is allowed to be liberal in the application of its rules in
deciding labor cases.[44] The NLRC Rules of Procedure state that "[t]he
rules of procedure and evidence prevailing in courts of law and equity shall
not be controlling and the Commission shall use every and all reasonable
means to ascertain the facts in each case speedily and objectively, without
regard to technicalities of law or procedure x x x."[45]

In any case, even if it is assumed that the rule on res inter alios acta were to
apply in this illegal dismissal case, the treatment of the extrajudicial
confession as hearsay is bound by the exception on independently relevant
statements. "Under the doctrine of independently relevant statements,
regardless of their truth or falsity, the fact that such statements have been
made is relevant. The hearsay rule does not apply, and 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."[46] Verily, Del Rosario's extrajudicial confession is independently
relevant to prove the participation of respondent in the instant controversy
considering his vital role in petitioner's procurement process. The fact that
such statement was made by Del Rosario, who was the actual author of the
alterations, should have been given consideration by the NLRC as it is
directly, if not circumstantially, relevant to the issue at hand.

Case law states that "labor suits require only substantial evidence to prove
the validity of the dismissal."[47] Based on the foregoing, the Court is
convinced that enough substantial evidence exist to support petitioner's
claim that respondent was involved in the afore-discussed scheme to
defraud the company, and hence, guilty of serious misconduct and/or
willful breach of trust which are just causes for his termination. Substantial
evidence is defined as such amount of relevant evidence that a reasonable
mind might accept as adequate to justify a conclusion,[48] which evidentiary
threshold petitioner successfully hurdled in this case. As such, the NLRC
gravely abused its discretion in holding that respondent was illegally
dismissed. Perforce, the reversal of the CA's decision and the granting of
the instant petition are in order. Respondent is hereby declared to be
validly dismissed and thus, is not entitled to backwages, separation pay, as
well as attorney's fees.

WHEREFORE, the petition is GRANTED. The Decision dated November

3, 2015 and the Resolution dated February 9, 2016, of the Court of Appeals
in CA-G.R. SP No. 139652 are hereby REVERSED and SET ASIDE.

SO ORDERED.

Sereno, C. J., (Chairperson), Leonardo-De Castro, Bersamin, and Caguioa,

JJ., concur.

SECOND DIVISION

ADELA G. RAYMUNDO, EDGARDO R. G.R. No. 171036

RAYMUNDO, LOURDES R. RAYMUNDO,
TERESITA N. RAYMUNDO, EVELYN R. Present:
SANTOS, ZENAIDA N. RAYMUNDO, LUIS N.
RAYMUNDO, JR. and LUCITA R.
DELOS REYES, QUISUMBING, J., Chairperson,
Petitioners, CARPIO MORALES,
 TINGA,

VELASCO, JR., and

BRION, JJ.

- versus -

ERNESTO LUNARIA, ROSALINDA RAMOS and Promulgated:

HELEN MENDOZA,

Respondents.
October 17, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

Assailed in this petition for review are the Court of Appeals

Decision[1] dated October 10, 2005 and the Resolution[2] 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 Property[4] 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 co-owners, 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 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 TrialCourt of Valenzuela City, Branch 172. On January 22, 2002, the
trial court rendered a Decision[5] 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.

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]

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?

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 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.

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.

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 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.

ADELA G. RAYMUNDO vs. ERNESTO LUNARIA G.R. No. 171036 October 17, 2008

Facts: 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% agent's commission in the event that he finds a buyer. After
respondents found a buyer, Cecilio Hipolito, an "Exclusive Authority to Sell" was executed
embodying the agreement made by the parties. After the corresponding Deed of Absolute Sale of
Real Property 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. Ceferino G. Raymundo, one of the co-
owners, 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. 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% agent's 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 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 agent's commission, they filed an
action for the collection of a sum of money before the RTC of Valenzuela City. The trial court
rendered a Decision in favor of the respondents. 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.

Issue: Whether or not CA erred in requiring petitioners to establish their case by more than a
preponderance of evidence.

Ruling: No. Petitioners contend that the appellate court erred in requiring them to prove the
existence of the subsequent verbal agreement by more than a mere 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.
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. 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. 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. 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 agent's 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 212140-41 January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman,
NATIONAL BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-affidavit,
to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order
and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman),
Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty.
Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality;
and (2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was
denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the
issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose
"Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act
(RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the
Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder as
defined underRA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt
Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-
C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal
proceedings for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen.
Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-
C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal
proceedings for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No.
3019, be conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit in OMB-C-C-13-
0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits
between 9 December 2013 and 14 March 2014.5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits
of the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-
0313. In his Request, Sen. Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or

additional witnesses for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the evidence
submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the
Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent
portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule
112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman] do not entitle respondent [Sen. Estrada]to be furnished all the filings of the
respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of
the Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10,
1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen.
Estrada] a copy of the Complaint and its supporting affidavits and documents; and this Office
complied with this requirement when it furnished [Sen. Estrada] with the foregoing documents
attached to the Orders to File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason,
Dennis Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in
these cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the
Ombudsman, the respondents are only required to furnish their counter-affidavits and controverting
evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation
depend on the rights granted to him by law and these cannot be based on whatever rights he
believes [that] he is entitled to or those that may be derived from the phrase "due process of law."
Thus, this Office cannot grant his motion to be furnished with copies of all the filings by the other
parties. Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is
entitled thereto under the rules; however, as of this date, no Reply has been filed by complainant
NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-

Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is
nevertheless entitled to be furnished a copy of the Reply if complainant opts to file such
pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint

Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with one
count of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a
Motion for Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen.
Estrada prayed for the issuance of a new resolution dismissing the charges against him. Without
filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request,
Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set aside
the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27

MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen.
Estrada also claimed that under the circumstances, he has "no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, except through this Petition."11 Sen. Estrada
applied for the issuance of a temporary restraining order and/or writ of preliminary injunction to
restrain public respondents from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-
C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe
issuance of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-
0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata,
Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies
of counter-affidavits of his co-respondents deprived him of his right to procedural due process, and
he has filed the present Petition before thisCourt. The Ombudsman denied Sen. Estrada’s motion to
suspend in an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen.
Estrada had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among
other motions filed by the other respondents, Sen. Estrada’s motion for reconsideration dated 7 April
2014. The pertinent portion of the 4 June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos,
Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before
the promulgation of the assailed Joint Resolution, this Office thereafter reevaluated the request and
granted it byOrder dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May
2014 Order to formally respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through
the Officeof the Solicitor General, filed their Comment to the present Petition. The public
respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE

ORDINARY COURSE OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR

TEMPORARY RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that
Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have
either filed a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged
irregularity in his motion for reconsideration of the 28 March 2014 Joint Resolution. There was also
no violation of Sen. Estrada’s right to due process because there is no rule which mandates that a
respondent such as Sen. Estrada be furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada
insisted that he was denied due process. Although Sen. Estrada received copies of the counter-
affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of
Tuason’s counter-affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO
Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that
the Petition isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order
because there is a recurring violation of his right to due process. Sen. Estrada also insists
that there is no forum shopping as the present Petition arose from an incident in the main
 proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary
course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen.
Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not violate
Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of
the counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well
as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for
ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally examined
the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents. The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If the
evidence is voluminous, the complainant may be required to specify those which he intends
to present against the respondent, and these shall be made available for examination or
copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party ora witness. The parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the investigating officer questions
which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial. Section 4. Resolution
of investigating prosecutor and its review.— If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable ground to
 believe that a crime has been committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence submitted against him; and
that he was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy in
cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction.
They shall act on the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the

prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct any other assistant prosecutor or state prosecutor
to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. From
the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II:
Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A.
3019,as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised
Penal Code, and for such other offenses committed by public officers and employees in relation to
office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be conducted
by any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:
 a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider
the comment filed by him, if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondent desires any matter in the complainant’s
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally
approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or reinvestigation of
anapproved order or resolution shall be allowed, the same to be filed within fifteen (15) days from
notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may
be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the resolution
subject of the motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule
which states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of
Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent
with a copy of the complaint and the supporting affidavits and documents at the time the order to
submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the
complainant and his witnesses] have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the respondent
to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x." At this point, there is
still no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are
affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously,
the counter-affidavits of the co-respondents are not part of the supporting affidavits of the
complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the
issuance of the 27 March 2014 Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides
that a respondent "shall have access to the evidence on record," this provision should be construed
in relation to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure.
First, Section 4(a) states that "theinvestigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the
witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a
copy of the affidavits and all other supporting documents, directing the respondent" tosubmit his
counter-affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant
and his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same
Rule II that a respondent shall have "access to the evidence on record" does not stand alone, but
should be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the
investigating officer to furnish the respondent with the "affidavits and other supporting documents"
submitted by "the complainant or supporting witnesses." Thus, a respondent’s "access to evidence
on record" in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits
and supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same
Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he
respondent shall have the right to examine the evidence submitted by the complainant which he may
not have been furnished and to copy them at his expense." A respondent’s right to examine refers
only to "the evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed
by the corespondents should be furnished to a respondent. Justice Velasco’s dissent relies on the
ruling in Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a
different set of rules of procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves
the preliminary investigation stage in a criminal case. Rule III on the Procedure in Administrative
Cases of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case, while
Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the
Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of Court apply in a
suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who
were both employees of the Land Transportation Office. Peñaloza submitted his counter-affidavit, as
well as those of his two witnesses. Reyes adopted his counter-affidavit in another case before the
Ombudsman as it involved the same parties and the same incident. None of the parties appeared
during the preliminary conference. Peñaloza waived his right to a formal investigation and was
willing to submit the case for resolution based on the evidence on record. Peñaloza also submitted a
counter-affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Peñaloza was found guilty of simple misconduct
and penalized with suspension from office without pay for six months. This Court agreed with the
Court of Appeals’ finding that Reyes’ right to due process was indeed violated. This Court remanded
the records of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted
the penalty of dismissal from the service when the evidence was not substantial, and (2) there was
disregard of Reyes’ right to due process because he was not furnished a copy of the counter-
affidavits of Peñaloza and of Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy
of the counter-affidavits happened in the administrative proceedings on the merits, which resulted in
Reyes’ dismissal from the service. In Sen. Estrada’s Petition, the denial of his Request happened
during the preliminary investigation where the only issue is the existence of probable cause for the
purpose of determining whether an information should be filed, and does not prevent Sen. Estrada
from requesting a copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative

case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether
the cases to which they are meant to apply are criminal, civil or administrative in character. In
criminal actions, proof beyond reasonable doubt is required for conviction;in civil actions and
proceedings, preponderance of evidence, as support for a judgment; and in administrative cases,
substantial evidence, as basis for adjudication. In criminal and civil actions, application of the Rules
of Court is called for, with more or less strictness. In administrative proceedings, however, the
technical rules of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually
prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination
of probable cause, and "probable cause merely implies probability of guilt and should be determined
in a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence."18Thus, the rights of a respondent in a preliminary
investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as tothe fact of the commission of a crime
and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full
and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as
may engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof. We are in accord with the state prosecutor’s findings in the case at bar that
there exists prima facie evidence of petitioner’s involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol
are inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of
Court expressly provides that the respondent shall only have the right to submit a counter-affidavit,
to examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to testify during
the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-
examine them at the preliminary investigation precisely because such right was never available to
him. The admissibility or inadmissibility of said testimonies should be ventilated before the trial court
during the trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation
could be waived by the accused, we find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the
record of the preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not
presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such
testimonies, petitioner can always object thereto and the trial court can rule on the admissibility
thereof; or the petitioner can, during the trial, petition said court to compel the presentation of
Galarion and Hanopol for purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the
Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x
[A]dmissions made by Peñaloza in his sworn statement are binding only on him. Res inter alios act a
alteri nocere non debet. The rights of a party cannot be prejudiced by an act, declaration or omission
of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-
respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s argument that
the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720mentioned the
testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan, their testimonies were
merely corroborative of the testimonies of complainants’ witnesses Benhur Luy, Marina Sula, and
Merlina Suñas and were not mentioned in isolation from the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to
establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313
and OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the
evidence, found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June
2014.
We likewise take exception to Justice Brion’s assertion that "the due process standards that at the
very least should be considered in the conduct of a preliminary investigation are those that this Court
first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd and disastrous
consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described
as the "fundamental and essential requirements of due process in trials and investigations of an
administrative character."22These requirements are "fundamental and essential" because without
these, there isno due process as mandated by the Constitution. These "fundamental and essential
requirements" cannot be taken away by legislation because theyare part of constitutional due
process. These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision
in sucha manner that the parties to the proceeding can know the various issues involved,
and the reasons for the decisions rendered. The performance of this duty is inseparable from
the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang Tibay
failed to explicitly state was, prescinding from the general principles governing due process, the
requirement of an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a
dispute may not sit as judge and jury simultaneously, neither may he review his decision on
appeal."25 The GSIS clarification affirms the non applicability of the Ang Tibay guidelines to
preliminary investigations in criminal cases: The investigating officer, which is the role that the Office
of the Ombudsman plays in the investigation and prosecution of government personnel, will never be
the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation, after conducting its own factfinding
investigation, is to determine probable cause for filing an information, and not to make a final
adjudication of the rights and obligations of the parties under the law, which is the purpose of the
guidelines in Ang Tibay. The investigating officer investigates, determines probable cause, and
prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with
weak cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.26 The Ombudsman and the prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer,
judge and jury of the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this
procedure because this is merely an Executive function, a part of the law enforcement process
leading to trial in court where the requirements mandated in Ang Tibay, as amplified in GSIS, will
apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule that
Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will mean that all past
and present preliminary investigations are in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he
filed his Request, is not yet an accused person, and hence cannot demand the full exercise of the
rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar
v. United States, while probable cause demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause,
wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI
witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the investigator alone. If the evidence on
hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To
repeat, probable cause merely implies probability of guilt and should be determined in a summary
manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine his accusers
to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough
evidence had been adduced to establish probable cause and clarificatory hearing was
unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the
"rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather
than upon the phrase ‘due process of law’." This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not
constitutional." In short, the rights of a respondent ina preliminary investigation are merely statutory
rights, not constitutional due process rights. An investigation to determine probable cause for the
filing of an information does not initiate a criminal action so as to trigger into operation Section 14(2),
Article III of the Constitution.30 It is the filing of a complaint or information in court that initiates a
criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS,
are granted by the Constitution; hence, these rights cannot be taken away by merelegislation. On
the other hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is
merely a statutory right,32 not part of the "fundamental and essential requirements" of due process as
prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away
by legislation. The constitutional right of an accused to confront the witnesses against him does not
apply in preliminary investigations; nor will the absence of a preliminary investigation be an
infringement of his right to confront the witnesses against him.33 A preliminary investigation may be
done away with entirely without infringing the constitutional right of an accused under the due
process clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to
"substantial evidence," while the establishment of probable cause needs "only more than ‘bare
suspicion,’ or ‘less than evidence which would justify . . . conviction’." In the United States, from
where we borrowed the concept of probable cause,35 the prevailing definition of probable cause is
this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly
correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt."
McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at
161. And this "means less than evidence which would justify condemnation" or conviction, as
Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339,
348. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable
cause exists where "the facts and circumstances within their [the officers’] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United
States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway
for enforcing the law in the community’s protection. Because many situations which confront officers
in the course of executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable cause is a practical, non technical
conception affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers’ whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where
probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial. A preliminary
investigation is required before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two months and one day without regard
to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or
a commitment order, if the accused has already been arrested, shall be issued and that there
is a necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v.
Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than
not, a crime has been committed and there is enough reason to believe that it was committed by the
accused. It need not be based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. What is merely required is "probability of guilt." Its
determination, too, does not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it
suffices that it is believed that the act or omission complained of constitutes the very offense
charged.

It is also important to stress that the determination of probable cause does not depend on the validity
or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies
presented. As previously discussed, these matters are better ventilated during the trial proper of the
case. As held in Metropolitan Bank & Trust Company v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite
the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean
"actual or positive cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not
depend on the validity or merits of a party’s accusation or defense or on the admissibility or veracity
of testimonies presented" correctly recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even entirely, on hearsay evidence, as long as
the person making the hearsay statement is credible. In United States v. Ventresca,38 the United
States Supreme Court held:
While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term ‘probable cause’ . . . means less than evidence which would justify condemnation," Locke v.
United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon
evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307,
358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large
difference between the two things tobe proved (guilt and probable cause), as well as between the
tribunals which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the basis for issuance of the warrant "so long as
there . . . [is] a substantial basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S.
272. And, in Aguilar, we recognized that "an affidavit may be based on hearsay information and
need not reflect the direct personal observations of the affiant," so long as the magistrate is
"informed of some of the underlying circumstances" supporting the affiant’s conclusions and his
belief that any informant involved "whose identity need not be disclosed . . ." was "credible" or his
information "reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest
entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining probable
cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an

accused and the right to a preliminary investigation. To treat them the same will lead toabsurd and
disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS.
Preliminary investigations are conducted by prosecutors, who are the same officials who will
determine probable cause and prosecute the cases in court. The prosecutor is hardly the impartial
tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer
outside of the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be
applied. This will require a new legislation. In the meantime, all pending criminal cases in all courts
will have to be remanded for reinvestigation, to proceed only when a new law is in place. To require
Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change the
concept of preliminary investigation as we know it now. Applying the constitutional due process in
Ang Tibay, as amplified in GSIS, to preliminary investigation will necessarily require the application
of the rights of an accused in Section 14(2), Article III of the 1987 Constitution. This means that the
respondent can demand an actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary
investigations but even to those convicted by final judgment and already serving their sentences.
The rule is well-settled that a judicial decision applies retroactively if it has a beneficial effect on a
person convicted by final judgment even if he is already serving his sentence, provided that he is not
a habitual criminal.39 This Court retains its control over a case "until the full satisfaction of the final
judgment conformably with established legal processes."40 Applying Ang Tibay, as amplified in GSIS,
to preliminary investigations will result in thousands of prisoners, convicted by final judgment, being
set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave abuse
of its discretion preceding the finding of a probable cause to indict him." Restated bluntly, Justice
Velasco’s dissent would like this Court to conclude that the mere filing of the present Petition for
Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should have, by itself,
voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request,
the Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen.
Estrada filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 that furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis
Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and
AlexisSevidal, and directed him to comment within a non-extendible period of five days from receipt
of said Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the
Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for
Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen.
Estrada and his corespondents with one count of plunder and 11 counts of violation of Section 3(e),
Republic Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in
fact, held in abeyance the disposition of motions for reconsideration in this proceeding in light of its
grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally
respond to the above-named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much
less a motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada
immediately proceeded to file this Petition for Certiorari before this Court. Sen. Estrada’s resort to a
petitionfor certiorari before this Court stands in stark contrast to his filing of his 7 April 2014 Motion
for Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The present
Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and
legal errors. Sen. Estrada, however, failed to present a compelling reason that the present Petition
falls under the exceptions41 to the general rule that the filing of a motion for reconsideration is
required prior to the filing of a petition for certiorari. This Court has reiterated in numerous decisions
that a motion for reconsideration is mandatory before the filing of a petition for certiorari.42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present
Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize that, despite
the variance in the quanta of evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in
his dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we
stated that "[t]he law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman.
The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in
the course of her official functions and imposed on her the penalty of reprimand. Petitioner filed a
motion for reconsideration of the decision on the ground that she was not furnished copies of the
affidavits of the private respondent’s witnesses. The Ombudsman subsequently ordered that
petitioner be furnished with copies of the counter-affidavits of private respondent’s witnesses, and
that petitioner should "file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the deprivation of
her right to due process or cure the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe
Ombudsman rendered a decision against her. We disposed of petitioner’s deprivation of due
process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to
exhaust all the administrative remedies available to her before the Ombudsman. This ruling is
legallycorrect as exhaustion of administrative remedies is a requisite for the filing of a petition for
certiorari. Other than this legal significance, however, the ruling necessarily carries the direct and
immediate implication that the petitioner has been granted the opportunity to be heard and has
refused to avail of this opportunity; hence, she cannot claim denial of due process. In the words of
the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut the affidavits
submitted by private respondent. . . and had a speedy and adequate administrative remedy but she
failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and related
principles. The "exhaustion" principle applies when the ruling court or tribunal is not given the
opportunity tore-examine its findings and conclusions because of an available opportunity that a
party seeking recourse against the court or the tribunal’s ruling omitted to take. Under the concept of
"due process," on the other hand, a violation occurs when a court or tribunal rules against a party
without giving him orher the opportunity to be heard. Thus, the exhaustion principle is based on the
perspective of the ruling court or tribunal, while due process is considered from the point of view of
the litigating party against whom a ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioner’s counter-statement offacts was denied the Ombudsman;
hence, the petitioner is barred from seeking recourse at the CA because the ground she would
invoke was not considered at all at the Ombudsman level. At the same time, the petitioner – who
had the same opportunity to rebut the belatedly-furnished affidavits of the private respondent’s
witnesses – was not denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds
(i.e., for the private respondent’s failure to furnish her copies of the affidavits of witnesses) and on
questions relating to the appreciation of the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private
respondent’s witnesses, together with the "directive to file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January
2003 supplying her with the affidavits of the complainant does not cure the 04 November 2002
order," and on this basis prayed that the Ombudsman’s decision "be reconsidered and the complaint
dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated
27 January 2003 and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration
after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this
Order the due process significance of the petitioner’s failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits,
which she claims she has not received. Furthermore, the respondent has been given the opportunity
to present her side relative thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the case
of People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since, as correctly pointed out
by the complainant, the decision issued in the present case is deemed final and unappealable
pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07.
Despite the clear provisions of the law and the rules, the respondent herein was given the
opportunity not normally accorded, to present her side, but she opted not to do so which is evidently
fatal to her cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one,
not only for her failure to exhaust her available administrative remedy, but also on due process
grounds. The law can no longer help one who had been given ample opportunity to be heard but
who did not take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen.
Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014
Joint Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47(Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this Court
ruled that "the inordinate delay in terminating the preliminary investigation and filing the information
[by the Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the
petitioner to due process and to a speedy disposition of the cases against him."48 The Tanod bayan
took almost three years to terminate the preliminary investigation, despite Presidential Decree No.
911’s prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to comment
and were not asked to file counter-affidavits as isthe proper procedure in a preliminary investigation.
Moreover, in Duterte, the Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen.
Estrada’s present Petition for Certiorari is premature for lack of filing of a motion for reconsideration
before the Ombudsman. When the Ombudsman gave Sen. Estrada copies of the counter-affidavits
and even waited for the lapse of the given period for the filing of his comment, Sen. Estrada failed to
avail of the opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in any
way be construed as violation of due process by the Ombudsman, much less of grave abuse of
discretion. Sen. Estrada has not filed any comment, and still chooses not to.
Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be
summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014,
Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-
C-13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint
Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in
this Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint
Order denying his Request, and that such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of
the Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of
evidence which Senator Estrada was not furnished with – hence, depriving him of the opportunity to
controvert the same – were heavily considered by the Ombudsman in finding probable cause to
charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings," pursuant to the right of a respondent "to examine the evidence submitted by the
complainant which he may not have been furnished" (Section 3[b], Rule 112 of the Rules of Court),
and to "have access to the evidence on record" (Section 4[c], Rule II of the Rules of Procedure of the
Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s
vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated
27 March 2014, unceremoniously denied the request on the ground that "there is no provision under
this Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other
parties x x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were
eventually made the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order.
Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the
violation of his right to due process, the same issue he is raising in this petition. In the verification
and certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62
filed on 23 June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those
before the Sandiganbayan for the determination of the existence of probable cause. In his petition in
G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order
denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause,
which he maintains is without legal or factual basis, but also thatsuch finding of probable cause was
premised on evidence not disclosed tohim, including those subject of his Request to be Furnished
with Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

 v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages
Napoles in Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March
2014, none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION

DATED 28 MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY
ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED
SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL
PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited
the filing of Sen. Estrada’s comment to the voluminous documents comprisingthe documents it
furnished Sen. Estrada to a "non-extendible" period offive (5) days, making it virtually impossible for
Sen. Estrada to adequately study the charges leveled against him and intelligently respond to them.
The Joint Order also failed to disclose the existence of other counter-affidavits and failed to furnish
Sen. Estrada copies of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was
the "sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7 April
2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014
Joint Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen.
Estrada did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held in
abeyance the disposition of the motions for reconsideration in this proceeding in light of its grant to
[Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond
to the abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia.52 To
determine whether a party violated the rule against forum shopping, the most important factor to ask
is whether the elements of litis pendentia are present, or whether a final judgment in one case will
amount to res judicatain another.53Undergirding the principle of litis pendentia is the theory that a
party isnot allowed to vex another more than once regarding the same subject matter and for the
same cause of action. This theory is founded on the public policy that the same matter should not be
the subject of controversy in court more than once in order that possible conflicting judgments may
be avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that – in
the usual course and because of its nature and purpose – is not covered by the rule on forum
shopping. The exception from the forum shopping rule, however, is true only where a petition for
certiorari is properly or regularly invoked in the usual course; the exception does not apply when the
relief sought, through a petition for certiorari, is still pending with or has as yet to be decided by the
respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present
case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised Rules of
Court which provides that the availability of a remedy in the ordinary course of law precludes the
filing of a petition for certiorari; under this rule, the petition’s dismissal is the necessary consequence
if recourse to Rule 65 is prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting
rulings, or at the very least, to complicated situations, between the RTC and the Court of Appeals.
An extreme possible result is for the appellate court to confirm that the RTC decision is meritorious,
yet the RTC may at the same time reconsider its ruling and recall its order of dismissal. In this
eventuality, the result is the affirmation of the decision that the court a quo has backtracked on.
Other permutations depending on the rulings of the two courts and the timing of these rulings are
possible. In every case, our justice system suffers as this kind of sharp practice opens the system to
the possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation
for complications other than conflict of rulings. Thus, it matters not that ultimately the Court of
Appeals may completely agree with the RTC; what the rule on forum shopping addresses are the
possibility and the actuality of its harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due
process by the Ombudsman even as his Motion for Reconsideration raising the very same issue
remained pending with the Ombudsman. This is plain and simple forum shopping, warranting
outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits
and documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal
Procedure, and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of
Procedure of the Office of the Ombudsman require the investigating officer to furnish the respondent
with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of
these Rules require the investigating officer to furnish the respondent with copies of the affidavits of
his co-respondents. The right of the respondent is only "to examine the evidence submitted by the
complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure. This Court has unequivocally ruled in Paderanga that "Section 3, Rule 112 of the
Revised Rules of Criminal Procedure expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to
be afforded an opportunity to be present but without the right to examine or cross-examine."
Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s Rule of Procedure, read together,
only require the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the investigating officer
1âw phi 1

to furnish the respondent with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as
well as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the motions for reconsideration because the
Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the
Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since
this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of
discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere
statutory rights. A law can abolish preliminary investigations without running afoul with the
constitutional requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The
present procedures for preliminary investigations do not comply, and were never intended to comply,
with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights
and obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in
GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision
against the respondent in the administrative case.In preliminary investigations, only likelihood or
probability of guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary investigations
will change the quantum of evidence required to establish probable cause. The respondent in an
administrative case governed by Ang Tibay,as amplified in GSIS,has the right to an actual hearing
and to cross-examine the witnesses against him. In preliminary investigations, the respondent has
no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer
must be impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In
preliminary investigations, the same public officer may be the investigator and hearing officer at the
same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare
that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements
in preliminary investigations will render all past and present preliminary investigations invalid for
violation of constitutional due process. This will mean remanding for reinvestigation all criminal
cases now pending in all courts throughout the country. No preliminary investigation can
proceeduntil a new law designates a public officer, outside of the prosecution service, to determine
probable cause. Moreover, those serving sentences by final judgment would have to be released
from prison because their conviction violated constitutional due process. Sen. Estrada did not file a
Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request,
which is the subject of the present Petition. He should have filed a Motion for R econsideration, in
the same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his
motion to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only
if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law
against the acts of the public respondent.56 The plain, speedy and adequate remedy expressly
provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman.
Sen. Estrada's failure to file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration
of the 28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion
for Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait
for the resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari.
The Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that
Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only
premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the Petition for Certiorari
in G.R. Nos. 212140-41.

SO ORDERED.

Facts:

Sometime in November and December 2013, the Ombudsman served on Sen. Estrada
two (2) criminal complaints for plunder, among others. Eighteen (18) of Sen. Estrada’s co-
respondents in the two complaints filed their counter-affidavits between 9 December 2013 and
14 March 2014. On 20 March 2014, Sen. Estrada filed his “Request to be Furnished with Copies
of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings”
(the “Request”). Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to
examine the evidence submitted by the complainant which he may not have been furnished’
(Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’
(Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).” The
Ombudsman denied Sen. Estrada’s Request, which is not the subject of the present certiorari
case.

Issue:

What is the quantum of evidence necessary during preliminary investigation?

Held:

First, there is no law or rule which requires the Ombudsman to furnish a respondent with copies
of the counter-affidavits of his co-respondents. Sections 3 and 4, Rule 112 of the Revised Rules
of Criminal Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of
the Office of the Ombudsman do not provide for the relief sought by Sen. Estrada in his Request.

Second, it should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and “probable cause merely implies probability of guilt and
should be determined in a summary manner. A preliminary investigation is not a part of the trial
and it is only in a trial where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence.” Thus, the rights of a
respondent in a preliminary investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining

whether there is sufficient ground to engender a well-founded belief that a crime cognizable by
the Regional Trial Court has been committed and that the respondent is probably guilty thereof,
and should be held for trial. The quantum of evidence now required in preliminary investigation
is such evidence sufficient to “engender a well-founded belief” as to the fact of the commission
of a crime and the respondent’s probable guilt thereof. A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of
such evidence only as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof. We are in accord with the state prosecutor’s
findings in the case at bar that there exists prima facie evidence of petitioner’s involvement in the
commission of the crime, it being sufficiently supported by the evidence presented and the facts
obtaining therein.

Third, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary
investigation could be waived by the accused, we find no compelling justification for a strict
application of the evidentiary rules.

Fourth, the quantum of evidence in preliminary investigations is not akin to those in

administrative proceedings as laid down in the landmark doctrine of Ang Tibay. The quantum of
evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidence needed in a
preliminary investigation to establish probable cause, or to establish the existence of a prima
facie case that would warrant the prosecution of a case. Ang Tibay refers to “substantial
evidence,” while the establishment of probable cause needs “only more than ‘bare suspicion,’ or
‘less than evidence which would justify . . . conviction’.” In the United States, from where we
borrowed the concept of probable cause, the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.
These are not technical; they are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act. The standard of proof is
accordingly correlative to what must be proved.

Thus, probable cause can be established with hearsay evidence, as long as there is substantial
basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in
a preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases, where rights and
obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest
entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in determining probable
cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.

DIVISION

[ GR No. 183830, Oct 19, 2011 ]

PEOPLE v. DELFIN CALISO

DECISION

675 Phil. 742

BERSAMIN, J.:

The decisive question that seeks an answer is whether the identification of

the perpetrator of the crime by an eyewitness who did not get a look at the
face of the perpetrator was reliable and positive enough to support the
conviction of appellant Delfin Caliso (Caliso).

Caliso was arraigned and tried for rape with homicide, but the Regional
Trial Court (RTC), Branch 21, in Kapatagan, Lanao del Norte found him
guilty of murder for the killing of AAA,[1] a mentally-retarded 16-year old
girl, and sentenced him to death in its decision dated August 19,
2002.[2]The appeal of the conviction was brought automatically to the
Court. On June 28, 2005,[3] the Court transferred the records to the Court
of Appeals (CA) for intermediate review pursuant to the ruling in People v.
Mateo.[4] On October 26, 2007,[5] the CA, although affirming the conviction,
reduced the penalty to reclusion perpetua and modified the civil awards.
Now, Caliso is before us in a final bid to overturn his conviction.

Antecedents

The information dated August 5, 1997 charged Caliso with rape with
homicide perpetrated in the following manner:

That on or about the 5th day of June, 1997, at Kapatagan, Lanao del Norte,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force, violence and intimidation, did then and
there willfully, unlawfully and feloniously have carnal knowledge upon one
AAA, who is a minor of 16 years old and a mentally retarded girl, against
her will and consent; that on the occasion of said rape and in furtherance of
the accused's criminal designs, did then and there willfully, unlawfully and
feloniously, with intent to kill, and taking advantage of superior strength,
attack, assault and use personal violence upon said AAA by mauling her,
pulling her towards a muddy water and submerging her underneath, which
caused the death of said AAA soon thereafter.

CONTRARY to and in VIOLATION of Article 335 of the Revised Penal Code

in relation to R.A. 7659, otherwise known as the "Heinous Crimes Law".[6]

At his arraignment on November 12, 1997,[7] Caliso pleaded not guilty to

the charge.

The records show that AAA died on June 5, 1997 at around 11:00 am in the
river located in Barangay Tiacongan, Kapatagan, Lanao Del Norte; that the
immediate cause of her death was asphyxia, secondary to drowning due to
smothering; that the lone eyewitness, 34-year old Soledad Amegable
(Amegable), had been clearing her farm when she heard the anguished cries
of a girl pleading for mercy: Please stop noy, it is painful noy!;[8] that the
cries came from an area with lush bamboo growth that made it difficult for
Amegable to see what was going on; that Amegable subsequently heard
sounds of beating and mauling that soon ended the girl's cries; that
Amegable then proceeded to get a better glimpse of what was happening,
hiding behind a cluster of banana trees in order not to be seen, and from
there she saw a man wearing gray short pants bearing the number "11"
mark, who dragged a girl's limp body into the river, where he submerged
the girl into the knee-high muddy water and stood over her body; that he
later lifted the limp body and tossed it to deeper water; that he next jumped
into the other side of the river; that in that whole time, Amegable could not
have a look at his face because he always had his back turned towards
her;[9] that she nonetheless insisted that the man was Caliso, whose
physical features she was familiar with due to having seen him pass by
their barangay several times prior to the incident;[10] that after the man
fled the crime scene, Amegable went straight to her house and told her
husband what she had witnessed; and that her husband instantly reported
the incident to the barangay chairman.

It appears that one SPO3 Romulo R. Pancipanci declared in an

affidavit[11] that upon his station receiving the incident report on AAA's
death at about 12:45 pm of June 5, 1997, he and two other officers
proceeded to the crime scene to investigate; that he interviewed Amegable
who identified the killer by his physical features and clothing (short pants);
that based on such information, he traced Caliso as AAA's killer; and that
Caliso gave an extrajudicial admission of the killing of AAA. However, the
declarations in the affidavit remained worthless because the Prosecution
did not present SPO3 Pancipanci as its witness.

Leo Bering, the barangay chairman of San Vicente, Kapatagan, Lanao Del
Norte, attested that on the occasion of Caliso's arrest and his custodial
interrogation, he heard Caliso admit to the investigating police officer the
ownership of the short pants recovered from the crime scene; that the
admission was the reason why SPO3 Pancipanci arrested Caliso from
among the curious onlookers that had gathered in the area; that Amegable,
who saw SPO3 Pancipanci's arrest of Caliso at the crime scene, surmised
that Caliso had gone home and returned to the crime scene thereafter.[12]

Municipal Health Officer Dr. Joseph G.B. Fuentecilla conducted the post-
mortem examination on the body of AAA on June 6, 1997, and found the
following injuries, to wit:

EXTERNAL FINDINGS:

1. The dead body was generally pale wearing a heavily soiled old
sleeveless shirt and garter skirts.
2. The body was wet and heavily soiled with mud both nostrils and
mouth was filled with mud.
3. The skin of hands and feet is bleached and corrugated in appearance.
4. 2 cm. linear lacerated wound on the left cheek (sic).
5. Multiple small (sic) reddish contusions on anterior neck area.
6. Circular hematoma formation 3 inches in diameter epigastric area of
abdomen.
7. Four erythematus linear abrasion of the left cheek (sic).
8. Presence of a 6x8 inches bulge on the back just below the inferior
angle of both scapula extending downwards.
9. The body was wearing an improperly placed underwear with the
garter vertically oriented to the right stained with moderate amount
of yellowish fecal material.
10. Minimal amount of pubic hair in the lower pubis with labia
majora contracted and retracted.
11. There's no swelling abrasion, laceration, blood hematoma formation
in the vulva. There were old healed hymenal lacerations at 5 and 9
o'clock position.
12.Vaginal canal admits one finger with no foreign body recovered (sic).
13.Oval shaped contusion/hematoma 6 cm at its greatest diameter
anterior surface middle 3rd left thigh.
14.Presence of 2 contusion laceration 1x0.5 cm in size medial aspect left
knee.[13]
Dr. Fuentecilla also conducted a physical examination on the body of Caliso
and summed up his findings thusly:

P.E. FINDINGS:

1. Presence of a 7x0.1 cm. horizontally averted linear erythematus

contusion left side of neck (Post ?).
2. 8x0.2 cm. reddish linear abrasion (probably a scratch mark) from the
left midclavicular line extending to the left anterioraxillary line.
3. Presence of 2 erythematus abrasion 3 cmx0.1 cm in average size
dorsal surface (probably a scratch mark) middle 3rd left arm.
4. 2.5 cm. abrasion dorsal surface middle and right forearm.
5. Presence of a linear erythematus contusion (probably a scratch mark)
2x7 cm. in average size lateral boarder of scapula extending to left
posterior axillary line.
6. Presence of 2 oblique oriented erythematus contusion (probably a
scratch mark) 14x022 cm. and 5x0.2 cm. in size respectively at the
upper left flank of the lower back extending downward to the midline.
7. Presence of 5 linear reddish pressure contusion parallel to each other
with an average 5 cm left flank area.[14]

In his defense, Caliso denied the accusation and interposed an alibi,

insisting that on the day of the killing, he plowed the rice field of Alac
Yangyang from 7:00 am until 4:00 pm.

Yangyang corroborated Caliso's alibi, recalling that Caliso had plowed his
rice field from 8 am to 4 pm of June 5, 1997. He further recalled that Caliso
was in his farm around 12:00 noon because he brought lunch to Caliso. He
conceded, however, that he was not aware where Caliso was at the time of
the killing.

Ruling of the RTC

After trial, the RTC rendered its judgment on August 19, 2002, viz:

WHEREFORE, in view of the foregoing considerations, accused DELFIN

CALISO is hereby sentenced to death and to indemnify the heirs of AAA in
the amount of P50,000.00. The accused is also hereby ordered to pay the
said heirs the amount of P50, 000.00 as exemplary damages.

SO ORDERED.[15]

The RTC found that rape could not be complexed with the killing of AAA
because the old-healed hymenal lacerations of AAA and the fact that the
victim's underwear had been irregularly placed could not establish the
commission of carnal knowledge; that the examining physician also found
no physical signs of rape on the body of AAA; and that as to the killing of
AAA, the identification by Amegable that the man she had seen submerging
AAA in the murky river was no other than Caliso himself was reliable.

Nevertheless, the RTC did not take into consideration the testimony of
Bering on Caliso's extrajudicial admission of the ownership of the short
pants because the pants were not presented as evidence and because the
police officers involved did not testify about the pants in court.[16] The RTC
cited the qualifying circumstance of abuse of superior strength to raise the
crime from homicide to murder, regarding the word homicide in the
information to be used in its generic sense as to include all types of killing.

Ruling of the CA

On intermediate review, the following errors were raised in the brief for the
accused-appellant,[17] namely:

i. The court a quo gravely erred in convicting the accused-appellant of the

crime of murder despite the failure of the prosecution to prove his guilt
beyond reasonable doubt;

ii. The court a quo gravely erred in giving weight and credence to the
incredible and inconsistent testimony of the prosecution witnesses.

iii. The court a quo gravely erred in appreciating the qualifying aggravating
circumstance of taking advantage of superior strength and the generic
aggravating circumstance of disregard of sex[; and]

iv. The court a quo gravely erred in imposing the death penalty.

As stated, the CA affirmed Caliso's conviction for murder based on the same
ratiocinations the RTC had rendered. The CA also relied on the
identification by Amegable of Caliso, despite his back being turned towards
her during the commission of the crime. The CA ruled that she made a
positive identification of Caliso as the perpetrator of the killing, observing
that the incident happened at noon when the sun had been at its brightest,
coupled with the fact that Amegable's view had not been obstructed by any
object at the time that AAA's body had been submerged in the water; that
the RTC expressly found her testimony as clear and straightforward and
worthy of credence; that no reason existed why Amegable would falsely
testify against Caliso; that Caliso did not prove the physical impossibility
for him to be at the crime scene or at its immediate vicinity at the time of
the incident, for both Barangay San Vicente, where AAA's body was found,
and Barangay Tiacongan, where the rice field of Yangyang was located,
were contiguous; that the attendant circumstance of abuse of superior
strength qualified the killing of AAA to murder; that disregard of sex should
not have been appreciated as an aggravating circumstance due to its not
being alleged in the information and its not being proven during trial; and
that the death penalty could not be imposed because of the passage of
Republic Act No. 9346, prohibiting its imposition in the Philippines.

The CA decreed in its judgment, viz:

WHEREFORE, the Decision of the Regional Trial Court dated August 19,
2002, finding appellant guilty of Murder, is hereby AFFIRMED with the
MODIFICATION that appellant Delfin Caliso is sentenced to reclusion
perpetua, and is directed to pay the victim's heirs the amount of
P50,000.00 as moral damages, as well as the amount of P25,000.00 as
exemplary damages, in addition to the civil indemnity of P50,000.00 he
had been adjudged to pay by the trial court.

SO ORDERED.[18]

Issue

The primordial issue is whether Amegable's identification of Caliso as the

man who killed AAA at noon of July 5, 1997 was positive and reliable.

Ruling

The appeal is meritorious.

In every criminal prosecution, the identity of the offender, like the crime
itself, must be established by proof beyond reasonable doubt. Indeed, the
first duty of the Prosecution is not to prove the crime but to prove the
identity of the criminal, for even if the commission of the crime can be
established, there can be no conviction without proof of identity of the
criminal beyond reasonable doubt.[19]

The CA rejected the challenge Caliso mounted against the reliability of his
identification as the culprit by Amegable in the following manner:[20]

As to the first two errors raised, appellant contends that the testimony of
Soledad Amegable was replete with discrepancies. Appellant avers, for
instance, that Soledad failed to see the assailant's face. Moreover,
considering the distance between where Soledad was supposedly hiding
and where the incident transpired, appellant states that it was
inconceivable for her to have heard and seen the incident. According to
appellant, witness Soledad could not even remember if at that time, she hid
behind a banana plant, or a coconut tree.

At bench, the incident happened at noon, when the sun was at its brightest.
Soledad could very well recognize appellant. Furthermore, notwithstanding
the fact that it was his back that was facing her, she asserted being familiar
with the physical features of appellant, considering that he frequented their
barangay. Even during her cross-examination by the defense counsel,
Soledad remained steadfast in categorically stating that she recognized
appellant:

Q: Mrs. Amegable, you said during your direct examination that

you saw Delfin Caliso, the accused in this case, several times
passed by your barangay, am I correct?
A: Several times.
Q: By any chance prior to the incident, did you talk to him?
A: No, sir.

Q: Are you acquainted with him?

A: Yes, sir.

Q: Even if he is in his back position?

A: Yes, sir. (Emphasis Supplied)

Given the circumstances as stated above, it was even probable that Soledad
caught glimpses of the profile of the appellant at the time of the incident.
She related, in addition, that when the victim was being submerged in the
water, there was no object obstructing her view.

The inconsistencies as alleged by appellant, between Soledad Amegable's

declaration in court and her affidavit, such as the tree or plant from where
she was hiding behind at the time of the incident, are insignificant and
cannot negate appellant's criminal liability. Her whole attention was riveted
to the incident that was unfolding before her. Besides, any such
inconsistencies are minor. Slight contradictions are indicative of an
unrehearsed testimony and could even serve to strengthen the witness'
credibility. A witness who is telling the truth is not always expected to give a
perfectly concise testimony, considering the lapse of time and the treachery
of human memory.

In fact, the testimony of a single eye-witness is sufficient to support a

conviction, so long as such testimony is found to be clear and
straightforward and worthy of credence by the trial court. Furthermore,
over here, witness Soledad had no reason to testify falsely against appellant.

Besides, the credibility of witnesses and their testimonies is a matter best

undertaken by the trial court, because of its unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct and attitude.
Findings of the trial court on such matters are binding and conclusive on
the appellate court.

Contrary to the CA's holding that the identification of Caliso based on

Amegable's recognition of him was reliable, the Court considers the
identification not reliable and beyond doubt as to meet the requirement of
moral certainty.

When is identification of the perpetrator of a crime positive and reliable

enough for establishing his guilt beyond reasonable doubt?

The identification of a malefactor, to be positive and sufficient for

conviction, does not always require direct evidence from an eyewitness;
otherwise, no conviction will be possible in crimes where there are no
eyewitnesses. Indeed, trustworthy circumstantial evidence can equally
confirm the identification and overcome the constitutionally presumed
innocence of the accused. Thus, the Court has distinguished two types of
positive identification in People v. Gallarde,[21] to wit: (a) that by direct
evidence, through an eyewitness to the very commission of the act; and (b)
that by circumstantial evidence, such as where the accused is last seen with
the victim immediately before or after the crime. The Court said:
xxx Positive identification pertains essentially to proof of identity
and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission
of the crime. This constitutes direct evidence. There may, however, be
instances where, although a witness may not have actually seen the
very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a
crime as for instance when the latter is the person or one of the
persons last seen with the victim immediately before and right
after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence, which, when
taken together with other pieces of evidence constituting an unbroken
chain, leads to only fair and reasonable conclusion, which is that the
accused is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a
suspect or accused to the exclusion of others, then nobody can ever be
convicted unless there is an eyewitness, because it is basic and elementary
that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that
direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt. If
resort to circumstantial evidence would not be allowed to prove identity of
the accused on the absence of direct evidence, then felons would go free and
the community would be denied proper protection.[22]

Amegable asserted that she was familiar with Caliso because she had seen
him pass by in her barangay several times prior to the killing. Such
assertion indicates that she was obviously assuming that the killer was no
other than Caliso. As matters stand, therefore, Caliso's conviction hangs by
a single thread of evidence, the direct evidence of Amegable's identification
of him as the perpetrator of the killing. But that single thread was thin, and
cannot stand sincere scrutiny. In every criminal prosecution, no less than
moral certainty is required in establishing the identity of the accused as the
perpetrator of the crime. Her identification of Caliso as the perpetrator did
not have unassailable reliability, the only means by which it might be said
to be positive and sufficient. The test to determine the moral certainty of an
identification is its imperviousness to skepticism on account of its
distinctiveness. To achieve such distinctiveness, the identification evidence
should encompass unique physical features or characteristics, like the face,
the voice, the dentures, the distinguishing marks or tattoos on the body,
fingerprints, DNA, or any other physical facts that set the individual apart
from the rest of humanity.

A witness' familiarity with the accused, although accepted as basis for a

positive identification, does not always pass the test of moral certainty due
to the possibility of mistake.

No matter how honest Amegable's testimony might have been, her

identification of Caliso by a sheer look at his back for a few minutes could
not be regarded as positive enough to generate that moral certainty about
Caliso being the perpetrator of the killing, absent other reliable
circumstances showing him to be AAA's killer. Her identification of him in
that manner lacked the qualities of exclusivity and uniqueness, even as it
did not rule out her being mistaken. Indeed, there could be so many other
individuals in the community where the crime was committed whose backs
might have looked like Caliso's back. Moreover, many factors could have
influenced her perception, including her lack of keenness of observation,
her emotional stress of the moment, her proneness to suggestion from
others, her excitement, and her tendency to assume. The extent of such
factors are not part of the records; hence, the trial court and the CA could
not have taken them into consideration. But the influence of such varied
factors could not simply be ignored or taken for granted, for it is even a
well-known phenomenon that the members of the same family, whose
familiarity with one another could be easily granted, often inaccurately
identify one another through a sheer view of another's back. Certainly, an
identification that does not preclude a reasonable possibility of mistake
cannot be accorded any evidentiary force.[23]

Amegable's recollection of the perpetrator wearing short pants bearing the

number "11" did not enhance the reliability of her identification of Caliso.
For one, such pants were not one-of-a-kind apparel, but generic. Also, they
were not offered in evidence. Yet, even if they had been admitted in
evidence, it remained doubtful that they could have been linked to Caliso
without proof of his ownership or possession of them in the moments
before the crime was perpetrated.

Nor did the lack of bad faith or ill motive on the part of Amegable to impute
the killing to Caliso guarantee the reliability and accuracy of her
identification of him. The dearth of competent additional evidence that
eliminated the possibility of any human error in Amegable's identification
of Caliso rendered her lack of bad faith or ill motive irrelevant and
immaterial, for even the most sincere person could easily be mistaken
about her impressions of persons involved in startling occurrences such as
the crime committed against AAA. It is neither fair nor judicious, therefore,
to have the lack of bad faith or ill motive on the part of Amegable raise her
identification to the level of moral certainty.

The injuries found on the person of Caliso by Dr. Fuentecilla, as borne out
by the medical certificate dated June 9, 1997,[24] did not support the
culpability of Caliso. The injuries, which were mostly mere scratch
marks,[25] were not even linked by the examining physician to the crime
charged. Inasmuch as the injuries of Caliso might also have been due to
other causes, including one related to his doing menial labor most of the
time, their significance as evidence of guilt is nil.

In the absence of proof beyond reasonable doubt as to the identity of the

culprit, the accused's constitutional right to be presumed innocent until the
contrary is proved is not overcome, and he is entitled to an
acquittal,[26] though his innocence may be doubted.[27] The constitutional
presumption of innocence guaranteed to every individual is of primary
importance, and the conviction of the accused must rest not on the
weakness of the defense he put up but on the strength of the evidence for
the Prosecution.[28]
WHEREFORE, the decision promulgated on October 26, 2007
is REVERSED and SET ASIDE for insufficiency of evidence, and
accused-appellant Delfin Caliso is ACQUITTED of the crime of murder.

The Director of the Bureau of Corrections in Muntinlupa City is directed to

forthwith release Delfin Caliso from confinement, unless there is another
lawful cause warranting his further detention.

No pronouncement on costs of suit.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 171129, April 06, 2011 ]

ENRICO SANTOS, PETITIONER, VS. NATIONAL STATISTICS OFFICE,

RESPONDENT.

DECISION
DEL CASTILLO, J.:
The lessee in this case resists ejectment by the lessor on the ground that the
leased property has already been foreclosed and is now owned by a third
person.

This Petition for Review on Certiorari assails the Decision[1] dated

September 6, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 89464
which recalled and set aside the Decision[2] dated April 1, 2005 of the
Regional Trial Court (RTC) of Malolos City, Bulacan, Branch 15 in Civil
Case No. 651-M-04. Likewise assailed is the CA's Resolution[3] dated
January 3, 2006 denying the Motion for Reconsideration thereto.

Factual Antecedents

On February 10, 2004, petitioner Enrico Santos filed a Complaint[4] for

Unlawful Detainer in the Municipal Trial Court (MTC) of Sta. Maria,
Bulacan. He claimed therein that he is the registered owner of the property
located at No. 49, National Road, Barrio Bagbaguin, Sta. Maria,
Bulacan. On January 2, 1998, he entered into a Contract of Lease[5] with
respondent National Statistics Office for the lease of 945 square meters (sq
m) of the first floor of the structure on said property for a monthly rental of
P74,000.00. Subsequently, the parties agreed to renew the lease for a
period of one year from January 1, 2003 to December 31, 2003, covering a
bigger area of the same floor for an increased monthly rental of
P103,635.00.[6] As the area leased by respondent was not sufficient for its
use, petitioner and respondent again entered into another Contract of
Lease[7] dated September 11, 2003 which covered an additional space for a
monthly rental of P45,000.00. For failing to pay despite demand the
rentals for the months of December 2003 and January 2004 in the total
amount of P297,270.00, and for its refusal to vacate the property even after
the termination of the lease contracts on December 31, 2003, petitioner
sent respondent a formal demand[8] for the latter to pay its unpaid monthly
rentals and to vacate the property. Notwithstanding receipt, respondent
still refused to pay and to vacate the property. Hence, the complaint.

In its Answer,[9] respondent through the Office of the Solicitor General

(OSG) alleged that petitioner and his wife obtained a loan[10]from China
Banking Corporation (China Bank) in the amount of P20 million, the
payment of which was secured by a Real Estate Mortgage[11] constituted
over the subject property covered by Transfer Certificate of Title (TCT) No.
T-95719(M). It claimed that when petitioner entered into a contract of
lease with it in 1998, he did not inform respondent of the existence of said
loan. When petitioner failed to pay his obligation with China Bank, the
property was eventually sold in an extrajudicial foreclosure sale where said
bank emerged as the highest bidder. Since petitioner likewise failed to
redeem the property within the redemption period, title to the same was
consolidated in favor of China Bank and TCT No. T-370128(M) was issued
in its name on August 21, 2000. Despite this and again without informing
respondent, petitioner misrepresented himself as still the absolute owner of
the subject property and entered into the second and third contracts of
lease with respondent in February and September 2003. According to
respondent, it was only in November 2003 that it knew of the foreclosure of
the subject property when it received a letter[12] from China Bank informing
it that as early as August 2000, title to the property had already been
effectively consolidated in the name of the bank. Hence, China Bank
advised respondent that as the new and absolute owner of the subject
property, it is entitled to the rental payments for the use and occupancy of
the leased premises from the date of consolidation. Petitioner having
ceased to be the owner of said property, respondent believed that the
second and third contracts of lease it entered with him had ceased to be in
effect. Hence, petitioner has no legal right to demand that respondent pay
him said rentals and vacate the leased premises. Conversely, respondent
has no legal obligation to pay to petitioner the rentals for the use and
occupancy of the subject property. Moreover, petitioner failed to exhaust
administrative remedies as there was no indication that he filed a money
claim before the Commission on Audit (COA) as required by Act No.
3083[13] as amended by Presidential Decree (P.D.) No. 1445.[14] Lastly,
respondent alleged that petitioner is without any legal personality to
institute the complaint because he is neither the owner, co-owner, legal
representative or assignee of China Bank, landlord or a person entitled to
the physical possession of the subject property. By way of counterclaim,
respondent asserted that petitioner is obligated under the law and the
equitable principle of unjust enrichment to return to respondent all rental
payments received, with legal interests, from August 2000 to November
2003 in the total amount of P4,113,785.00.
Ruling of the Municipal Trial Court

The MTC rendered its Decision[15] on September 6, 2004. It held that while
it can provisionally resolve the issue of ownership as raised by respondent,
it did not do so because of the latter's admission that it originally leased the
subject property from petitioner. According to said court, when respondent
admitted that it was a lessee of the premises owned by petitioner, it took
away its right to question petitioner's title and ownership thereof. The MTC
then reiterated the well settled rule that a tenant cannot, in an action
involving the possession of leased premises, controvert the title of his
landlord. As the evidence showed that respondent was no longer paying
rents in violation of its obligation under the second and third contracts of
lease, and since said contracts already expired and no new contract was
entered into by the parties, the MTC declared respondent a deforciant
lessee which should be ejected from the property. The dispositive portion
of the MTC Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor

of the plaintiff and against the defendant, ordering the latter to:

1. Vacate the premises known as No. 49 National Road, Bagbaguin, Santa

Maria, Bulacan and peacefully surrender possession thereof to the plaintiff;

2. Pay the plaintiff rental arrearages amounting to Two Hundred Ninety

Seven Thousand Two Hundred Seventy Pesos (P297,270.00) for the period
up to January 2004;

3. Pay the plaintiff the monthly amount of Seventy Four Thousand Pesos
(P74,000.00) from February 2004 up to the time that it finally vacates the
subject premises;

4. Pay the plaintiff the amount of Thirty Thousand Pesos (P30,000.00) as

and by way of attorney's fees, and

5. Cost of the suit.

SO ORDERED.[16]

Hence, respondent appealed to the RTC.

Ruling of the Regional Trial Court

Respondent faulted the MTC in not resolving the issue of ownership in

order to determine who has the better right of possession. It emphasized
that it is not an ordinary entity which may be compelled to pay under
private contracts. As an agency of the government tasked in generating
general purpose statistics, it is bound by government auditing rules to make
payments only for validly executed contracts with persons lawfully entitled
thereto. Thus, it is necessary to ascertain the ownership of the subject
property in order to determine the person lawfully entitled to the rental
payments. And as it is clear in this case that title to the property had
already been consolidated in the name of China Bank, respondent properly
paid the rentals to said bank. Respondent argued that as between
petitioner, who had ceased to have legal title to the property, and itself,
which continuously pays rentals to China Bank, it is the one which has the
better right of possession. In addition, respondent insisted that petitioner
should return the amount of P4,113,785.00 wrongfully paid to him, with
legal interest, until fully paid.

On the other hand, petitioner countered that even if respondent is a

government agency, it cannot be permitted to deny his title over the
property, he being the lessor of the same. To support this, he cited Section
2(b), Rule 131 of the Rules of Court[17] and Article 1436 of the Civil
Code.[18] Petitioner thus prayed that the RTC affirm in toto the assailed
MTC Decision.

In its Decision[19] dated April 1, 2005, the RTC agreed with the MTC's
declaration that respondent is a deforciant lessee which should be ejected
from the leased premises. This was in view of the settled rule that the fact
of lease and the expiration of its terms are the only elements in an action
for ejectment, which it found to have been established in this case.
According to said court, a plaintiff need not prove his ownership and
defendant cannot deny it. If defendant denies plaintiff's ownership, he
raises a question which is unessential to the action. The RTC further held
that if there was an issue of ownership, it is a matter between China Bank
and petitioner to settle in an appropriate proceeding. Hence, the RTC
found the appeal to be without merit, viz:

WHEREFORE, premises [considered], the assailed Decision of the

Municipal Trial Court of Sta. Maria, Bulacan, is hereby AFFIRMED.

SO ORDERED.[20]

Petitioner promptly moved for the issuance of a writ of execution.[21] This

was, however, denied by the RTC[22] in view of the Temporary Restraining
Order (TRO) issued by the CA through its May 5, 2005 Resolution[23] in CA-
G.R. SP No. 89464 - the Petition for Review brought by respondent before
said court.

Ruling of the Court of Appeals

Before the CA, respondent asserted that the RTC and MTC cannot turn a
blind eye on the transfer of ownership of the subject property to China
Bank. As petitioner fraudulently executed the last two lease contracts with
respondent, he having entered into the same despite knowledge that
ownership of the subject property had already passed on to China Bank, the
rule that the lessee cannot deny the title of his landlord does not apply. This
is because petitioner was no longer the owner of the leased premises at the
time of the execution of the last two contracts. Respondent also believed
that said contracts are void because to hold otherwise would be to condone
the anomalous situation of a party paying rentals to one who is no longer
the owner and who no longer has the right of possession over the leased
property. It likewise insisted that it is entitled to recover the rentals paid to
petitioner from the time ownership of the subject property was transferred
to China Bank under the principle of solutio indebiti. Lastly, respondent
emphasized that petitioner failed to first file a money claim before the COA.

Petitioner, for his part, basically reiterated the arguments he raised before
the RTC. In addition, he pointed out that the defense of ownership is being
invoked by respondent on behalf of another party, China Bank. What
respondent therefore would want the lower courts to do was to rule that the
subject property is owned by another person even if said person is not a
party to the ejectment case. To petitioner, this cannot be done by the lower
courts, hence, there was no error on their part when they decided not to
touch upon the issue of ownership.

It is noteworthy that before the petition was resolved, the CA first issued a
Resolution[24] dated July 15, 2005 granting respondent's prayer for a Writ
of Preliminary Injunction which enjoined the enforcement of the RTC's
April 1, 2005 Decision. Thereafter, the CA proceeded to decide the case and
thus issued a Decision[25] dated September 6, 2005.

In its Decision, the CA recognized the settled rule that a tenant, in an action
involving the possession of the leased premises, can neither controvert the
title of his landlord nor assert any rights adverse to that title, or set up any
inconsistent right to change the relation existing between himself and his
landlord. However, it declared that said doctrine is subject to qualification
as enunciated in Borre v. Court of Appeals[26] wherein it was held that
"[t]he rule on estoppel against tenants x x x does not apply if the landlord's
title has expired, or has been conveyed to another, or has been defeated by
a title paramount, subsequent to the commencement of lessor-lessee
relationship." In view of this, the CA concluded that the RTC erred when it
relied mainly on the abovementioned doctrine enunciated under Sec. 2(b),
Rule 131 of the Rules of Court and skirted away from resolving the issue of
ownership. The CA noted that respondent was able to prove that title to the
subject property has already been effectively consolidated in the name of
China Bank. Hence, it found petitioner to be in bad faith and to have acted
with malice in still representing himself to be the owner of the property
when he entered into the second and third contracts of lease with
respondent. Under these circumstances, the CA declared that respondent
was justified in refusing to pay petitioner the rents and thus, the ejectment
complaint against respondent states no cause of action.

In addition, the CA opined that there was no landlord-tenant relationship

created between the parties because the agreements between them are
void. The element of consent is wanting considering that petitioner, not
being the owner of the subject property, has no legal capacity to give
consent to said contracts. The CA, however, denied respondent's prayer for
the return of the rentals it paid to petitioner by ratiocinating that to grant
the same would be to effectively rule on the ownership issue rather than
merely resolving it for the purpose of deciding the issue on possession.

The CA disposed of the case in this wise:

IN VIEW OF ALL THE FOREGOING, the instant petition for review

is GRANTED, the assailed decision is RECALLED and SET ASIDE, and a
new one entered DISMISSING Civil Case No. 651-M-04 (MTC Civil Case
No. 1708). No pronouncement as to costs.

SO ORDERED.[27]

Both parties moved for reconsideration[28] of the above Decision but were,
however, unsuccessful as the CA denied their motions in a
Resolution[29] dated January 3, 2006.

Undeterred, petitioner now comes to us through this Petition for Review

on Certiorari.

Issues

Petitioner raises the following issues:

I. Whether x x x the Honorable Court of Appeals erred in overturning the

respective decisions of the RTC-Malolos City, Bulacan and MTC-Sta. Maria,
Bulacan which both held that a lessor has the better right of possession over
a realty.

II. Whether x x x the Honorable Court of Appeals - in resolving the issue of

who between the lessor and the lessee has better possession of the premises
known as No. 49, National Road, Bagbaguin, Sta. Maria, Bulacan - erred in
delving on the issue of ownership in resolving the issues raised in C.A.-G.R.
SP No. 89464.

III. Whether x x x the Honorable Court of Appeals erred in not awarding

damages to the Petitioner, the lessor of the premises known as No. 49,
National Road, Bagbaguin, Sta. Maria, Bulacan.[30]

The Parties' Arguments

Petitioner contends that the ruling in Borre does not apply to this case
because here, there is nothing to show that his title to the subject property
had expired, or had been conveyed to another, or had been defeated by a
title paramount. In fact, petitioner informs this Court that the dispute
between him and China Bank concerning the ownership of the subject
property is still pending litigation before Branch 17 of RTC-Malolos,
Bulacan. Hence, petitioner asserts that there are yet no factual and legal
bases for the CA to rule that he lost his title over the property. Besides,
petitioner believes that ownership is not an issue in actions for ejectment
especially when the parties thereto are the landlord and tenant. Moreover,
petitioner contends that based on Fige v. Court of Appeals,[31] respondent
as lessee cannot be allowed to interpose a defense against him as lessor
without the former first delivering to him the leased premises. Petitioner
also claims that he is entitled to payment of damages in the form of fair
rental value or reasonable compensation for the use and occupation of the
property. In sum, petitioner wants this Court to reverse and set aside the
assailed CA Decision and Resolution and to reinstate the respective
Decisions of the MTC and RTC.

Respondent, for its part, negates petitioner's claim that he has not yet lost
his title to the property by emphasizing that such title has already been
effectively consolidated in the name of China Bank. And, considering that
government auditing rules preclude respondent from paying rentals to a
party not entitled thereto, it was proper for it to pay the same to the new
owner, China Bank. Moreover, respondent imputes bad faith upon
petitioner for not informing it of the change in ownership of the property
and for still collecting rental payments despite such change. Thus,
respondent prays that the petition be denied for lack of merit.

Our Ruling

We find no merit in the petition.

The conclusive presumption found in Sec. 2(b), Rule 131 of the Rules of
Court known as estoppel against tenants provides as follows:

Sec. 2. Conclusive presumptions. - The following are instances of

conclusive presumptions:

xxxx

(b) The tenant is not permitted to deny the title of his landlord at the time
of the commencement of the relation of landlord and tenant between them.
(Emphasis supplied).

It is clear from the above-quoted provision that "[w]hat a tenant

is estopped from denying x x x is the title of his landlord at the time of the
commencement of the landlord-tenant relation. If the title asserted is one
that is alleged to have been acquired subsequent to the commencement of
that relation, the presumption will not apply."[32] Hence, "the tenant may
show that the landlord's title has expired or been conveyed to another or
himself; and he is not estopped to deny a claim for rent, if he has been
ousted or evicted by title paramount."[33]

Thus, we declared in Borre v. Court of Appeals[34] that:

The rule on estoppel against tenants is subject to a qualification. It does

not apply if the landlord's title has expired, or has been conveyed to
another, or has been defeated by a title paramount, subsequent to the
commencement of lessor-lessee relationship [VII Francisco, The Revised
Rules of Court in the Philippines 87 (1973)]. In other words, if there was a
change in the nature of the title of the landlord during the subsistence of
the lease, then the presumption does not apply. Otherwise, if the nature of
the landlord's title remains as it was during the commencement of the
relation of landlord and tenant, then estoppel lies against the tenant.
(Emphasis supplied.)

While petitioner appears to have already lost ownership of the property at

the time of the commencement of the tenant-landlord relationship between
him and respondent, the change in the nature of petitioner's title, as far as
respondent is concerned, came only after the commencement of such
relationship or during the subsistence of the lease. This is precisely because
at the time of the execution of the second and third contracts of lease,
respondent was still not aware of the transfer of ownership of the leased
property to China Bank. It was only in November 2003 or less than two
months before the expiration of said contracts when respondent came to
know of the same after it was notified by said bank. This could have been
the reason why respondent did not anymore pay petitioner the rents for the
succeeding months of December 2003 and January 2004. Thus, it can be
said that there was a change in the nature of petitioner's title during the
subsistence of the lease that the rule on estoppel against tenants does not
apply in this case. Petitioner's reliance on said conclusive presumption
must, therefore, necessarily fail since there was no error on the part of the
CA when it entertained respondent's assertion of a title adverse to
petitioner.

We also find untenable petitioner's argument that respondent cannot assert

ownership of the property by a third person considering that China Bank,
as such third person, is not a party to the ejectment case. As earlier said, a
tenant in proper cases such as this, may show that the landlord's title has
been conveyed to another. In order to do this, the tenant must essentially
assert that title to the leased premises already belongs to a third person
who need not be a party to the ejectment case. This is precisely what
respondent was trying to do when it endeavored to establish that the
property is now owned by China Bank.

From the above discussion, it is not difficult to see that the question of
possession is so intertwined with the question of ownership to the effect
that the question of possession cannot be resolved without resolving the
question of ownership. This is the reason why we are upholding the CA's
resolution of the issue of ownership in this ejectment case. "It bears
emphasizing that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of
any claim of ownership by any of the party litigants."[35] However, "[i]n
cases where defendant raises the question of ownership in the pleadings
and the question of possession cannot be resolved without deciding the
issue of ownership, the court may proceed and resolve the issue of
ownership but only for the purpose of determining the issue of possession.
[Nevertheless], the disposition of the issue of ownership is not final, as it
may be the subject of separate proceeding[s] specifically brought to settle
the issue."[36] Hence, the fact that there is a pending case between petitioner
and China Bank respecting the ownership of the property does not preclude
the courts to rule on the issue of ownership in this case.

Paragraph 3 of the Complaint for Unlawful Detainer states that petitioner is

the registered owner of the property located at No. 49, National Road,
Barrio Bagbaguin, Sta. Maria, Bulacan.[37] It is in fact by virtue of this
alleged ownership that he entered into contracts of lease with respondent
and was ejecting the latter by reason of the expiration of said contracts.
However, we note that petitioner, as plaintiff in the Complaint for Unlawful
Detainer, failed to discharge his burden of showing that he indeed owned
the property. "In civil cases, the burden of proof is on the plaintiff to
establish his case by a preponderance of evidence. If he claims a right
granted or created by law, he must prove his claim by competent evidence.
He must rely on the strength of his own evidence and not on the weakness
of that of his opponent."[38] On the other hand, respondent has
satisfactorily shown that title to the property has already been conveyed to
China Bank. It submitted the following documents: (1) the Promissory
Note[39] executed by petitioner and his spouse in favor of China Bank for a
loan of P20 million and the (Real Estate) Mortgage[40] over the subject
property; (2) the Petition for Extrajudicial Foreclosure of said Real Estate
Mortgage;[41] (3) the Notice of Auction Sale By Notary Public, Certificate of
Posting, Affidavit of Publication and Certificate of Sale in favor of China
Bank,[42] all in connection with the extrajudicial foreclosure sale of the
leased premises; (4) the Affidavit of Consolidation[43] executed by China
Bank's Vice-President to inform the Registry of Deeds of Meycauayan,
Bulacan that the one-year period of redemption has expired without
petitioner redeeming the property and to request said office to issue the
corresponding TCT under the bank's name; and (5) TCT No. T-370128
(M)[44] issued on August 21, 2000 in the name of China Bank covering the
leased property. Said documents, particularly TCT No. T-370128 (M),
undeniably show that China Bank is the owner of the property and not
petitioner. "As a matter of law, a Torrens Certificate of Title is evidence of
indefeasible title of property in favor of the person in whose name the title
appears. The title holder is entitled to all the attributes of ownership of the
property, including possession, subject only to limits imposed by law."[45]
Not being the registered titleholder, we hold that petitioner does not have a
better right of possession over the property as against respondent who is in
actual possession thereof and who claims to derive its right of possession
from the titleholder, China Bank, to whom it pays rents for its use. Hence,
petitioner's action for unlawful detainer must fail. This being settled, it is
obvious that petitioner is likewise not entitled to payment of damages for
the fair rental value or reasonable compensation for the use and occupation
of the property.

WHEREFORE, the petition is DENIED. The assailed Decision dated

September 6, 2005 and Resolution dated January 3, 2006 of the Court of
Appeals in CA-G.R. SP No. 89464 are AFFIRMED.

SO ORDERED.

THIRD DIVISION

[G.R. No. 131131. June 21, 2001]

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

SALONGA, accused-appellant.

DECISION
GONZAGA-REYES, J.:

This case was certified to this Court pursuant to Section 13, Rule 124 [1] of the
Rules of Court from a decision rendered by the Court of Appeals[2] in CA-G.R. CR
NO. 18551 which modified the decision of the Regional Trial Court [3] (RTC) of
Makati, Branch 142 in Criminal Case No. 33127, by increasing the penalty imposed
on the accused to reclusion perpetua.
Abelardo Salonga, Flaviano Pangilinan, Amiel Garcia and Ricardo Licup were
charged with the crime of Qualified Theft through Falsification of Commercial
Document in an information[4] that reads:

That on or before the 23rd day of October, 1986, in the Municipality of Makati, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating with one another and mutually helping
and aiding one another, and as such had access to the preparation of checks in the said
Metrobank and Trust Company, with grave abuse of confidence, intent of gain and
without the knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and carry away the total amount of P36,480.30
by forging the signature of officers authorized to sign the said check and have the said
check deposited in the account of Firebrake Sales and Services, the supposed payee
when in truth and in fact there is no such transaction between Firebrake and
Metrobank, thereby causing the preparation and use of a simulated check described as
Check No. 013702 in the amount of P36,480.30 making it appear genuine and
authorized, through which they succeeded in its encashment, enabling them to gain for
themselves the total sum of P36,480.30, to the damage and prejudice of Metrobank
and Trust Company in the total amount of P36,480.30.

CONTRARY TO LAW.

On January 7, 1991, Salonga was arraigned and pleaded not guilty to the crime
charged. His co-accused, Flaviano Pangilinan, Amiel Garcia and Ricardo Licup are
still at large.
On July 19, 1993, the RTC rendered its decision finding Salonga guilty beyond
reasonable doubt of Qualified Theft through Falsification of Commercial Document,
the dispositive portion of which reads:

WHEREFORE, premises considered, the Court finds the accused Abelardo Salonga
GUILTY beyond reasonable doubt of the complex crime of QUALIFIED THEFT
THRU FALSIFICATION OF COMMERCIAL DOCUMENT. Absent any
circumstance which attended the commission of the crime he is hereby sentenced to
suffer an indeterminate prison term of six (6) years and one (1) day of prision mayor
as minimum to twelve (12) years of reclusion temporal as maximum.

The trial court summarized the evidence for the prosecution, upon which it based
its conviction of accused-appellant in this wise:

Prosecution:

x x x (T)he Loans and Placement Department of Metropolitan Band and Trust

Company (Metrobank) issued Metrobank Cashiers Check No. CC 013702 dated
October 23, 1986 in the amount of P36,480.30 which purports to have been signed by
Antonio L. Manuel, as manager of the said department and authorized signatory of the
check and which had been cleared and encashed (Exhibits A, A-1 to A-4).
On January 20, 1987, Arthur Christy Mariano, lead examiner of Metrobanks Loans
and Placement Department, conducted a spot audit of the Loans and Placement
Department of Metrobank. The outcome of the spot audit as embodied in the Reports
dated February 12, 1987 and March 26, 1987, is as follows:

Unauthorized Issuance of Cashiers check

Test-verification of the daily issuance of cashiers checks by the Loans and Placement
Department disclosed the following:

1. There was a cashiers check issued on October 23, 1986 under CC No.
013702 payable to a certain Firebreak Sales and Services for
P36,480.30 the xerox copy of which is shown as EXHIBIT A.

2. The signatures of the authorized signatories appearing on the subject

cashiers check have an apparent dissimilarity with their genuine
signature particularly that of Mrs. Antonia L. Manuel, Manager of
Loans and Placement Department.

3. At the back portion of the Cashiers check, it was traced that the same
was deposited to Account No. 3021-3900-53 maintained at BPI-Ayala
Ave. Branch. However, we were not able to establish the name/owner
of the account at BPI.

4. On the day of issuance of the cashiers check, it was found out that the
corresponding debit and credit balances appearing in the proof sheet of
Loans and Placement Department are balanced. However, the
supporting accounting ticket debiting Accounts payable was short by
P36,480.30, the amount of the cashiers check while the credit
accounting ticket for the Cashiers and Gift Checks account reflects the
correct total of issuances for the day but the signature of the Authorized
Signature space is forged as shown in Exhibit B.

5. The Cashiers check in question was properly recorded in the register

maintained at the FX/Loans Accounting Section. It passed to the usual
clearing procedure except for the signature verification of the
authorized signatories. Thus, the unauthorized issuance/dissimilarity of
the signatures could not be readily detected.

6. The matter was brought to the attention of the Division Heads

concerned who immediately confronted the responsible officers, Mr.
Abelardo A. Salonga, Acting Asst. Cashier and Custodian of the
unissued cashiers check at the Loans & Placement Department and Mr.
Flaviano M. Pangilinan, Asst. Manager of FX/Loans Accounting
Section. Both admitted their participation on the
irregularity/unauthorized issuance of said cashiers check.

7. The case was already endorsed to the Department of Internal Affairs by

the Controller.

UNAUTHORIZED ISSUANCE OF CASHIERS CHECK

Except _for the unauthorized issuance of Cashiers Check No. 013702 for P36,480.30
on October 23, 1986, we found out that the transactions involving Accounts payable
account are in order per verification conducted from October to December 1986. All
items lodged under said account were properly accounted for. As have been reported,
the perpetrators on this particular scheme are Messrs. Flaviano M. Pangilinan and
Abelardo A. Salonga, Assistant Manager and Acting Assistant Cashier,
respectively. Mr. Pangilinan made a payment of P17,500.00 on January 28, 1987
under O.R. No. 65696 while no payment was received from Mr. Salonga as of this
writing.

(Exhibits M, M-1, N, N-1).

Antonia Manuel and Arthur Christy Mariano both testified that the signature of the
former appearing on the subject check and on Metrobank Debit (Local) Ticket TR No.
8 dated October 23, 1986 which was prepared by accused Amiel S. Garcia (Exhibits
1, 1-1, 1-2) corresponding to the subject check, is a forgery after comparison thereof
with the genuine signature of Antonia Manuel appearing on the cashiers checks also
issued by the Loans and Placement Department of Metrobank (Exhibits D, D-1, D-
2, E, E-1, E-2; F, F-1, F-2; G, G-1 G-2; H, H-1, H-2).

Arthur Mariano declared that while the amount of accounts payable for October 23,
1986 as reflected in the proof sheet of Metrobanks Loans and Placement Department
is P97,112.17 (Exhibits J, J-1, J-2), the total amount of accounts payable by said
department for October 23, 1986 under Metrobank Debit (Local) Tickets TR No. 8
both dated October 23, 1986 is P60,631.87 (P60,390.58 + P241.29) (Exhibits K, K-1,
K-2; L, L-1, L-2, respectively), which two amounts under normal circumstances,
should be equal. The difference of the two aforesaid amounts totaled P36,480.30
which is equivalent to the amount stated in the subject cashiers check, which allegedly
shows that the check was issued bereft of any transaction.

By virtue of the alleged anomaly surrounding the issuance of the subject cashiers
check, accused Abelardo Salonga was summoned to appear before Valentino Elevado,
Assistant Accountant, Department of Internal Affairs of Metrobank. After allegedly
appraising Abelardo Salonga of his constitutional right to remain silent and to
counsel, an interview in a question and answer from was conducted. Accused
Abelardo Salonga allegedly waived his constitutional rights and submitted himself to
the interview. In the course of the interview, accused Abelardo Salonga admitted
having issued the subject cashiers check without any legitimate transaction, to accused
Amiel Garcia as accused who was then encountering financial difficulties. That out of
the amount of the check, P8,500.00 went to the personal benefit of accused Abelardo
Salonga.

After the interview, accused Abelardo Salonga executed a written statement which he
authenticated by affixing his signature thereon (Exhibits B to B-7). Questions and
Answers Nos. 7, 8, 9, 19 and 21 stated in the written statement read as follows:

7. Q: Placement Section, Metrobank, Head Office, Makati, Metro Manila,

what are your duties and responsibilities?

A: I have the control of the issuance of cashier checks for Loans and
placement transactions of Metrobank, and others.

8. Q: In connection with your duties of issuing cashiers checks regarding

loans and placement transactions of Metrobank, have you come across
Cashiers Check No. CC 013702 dated October 23, 1987, payable to
Firebreak Sales and Services in the amount of P36,480.30?

A: I issued this check in blank to Mr. Amiel Garcia, messenger on October 23,
1986.
 9. Q: Why did you issue this blank Cashiers check No. 013702 to Mr. Amiel
Garcia, was there a legitimate transaction in loans or in placement?

A: There was no legitimate or legal transaction in loans neither in placement,

but I issued this to Mr. Garcia because Mr. Flaviano Pangilinan,
Assistant Manager, Accounting Department who is my compadre and I
have plan to make money and I want to help Mr. Amiel Garcia who is
financially handicapped.

19. Q: Was this check cleared by Metrobank?

A: Yes, because Mr. Flaviano Pangilinan is the Assistant Manager of the

Acounting Section downstairs in the basement, their section cleared this
check.

21. Q: Did Mr. Flaviano Pangilinan give you any amount as your share?

A: After about three days, at about after lunch, he called me outside the bank,
(beside the bank), and he handed me an envelope with P17,000.00 plus,
he said pare, eto oh, ganon lang.

(Exhibits B-8 to B-11).

A letter dated September 15, 1987 was addressed by accused Abelardo Salonga to
Atty. Severino Tobias of Metrobank Head Office wherein the former signified his
intention to compromise the case (Exhibits C to C-3).

Upon the other hand, accused-appellant relied on denial as his defense; attributed
to simple negligence the loss of the check which was admittedly in his custody and
also repudiated his extra-judicial confession. The evidence for the defense was
summarized by the trial court as follows:

Defense:

x x x x Abelardo Salonga testified that from 1973 to 1987, he was employed by

Metrobank as an acting assistant cashier. In such capacity, he was in charge of
managing money market placements and payments of maturing money placement
investments. Before accused Abelardo Salonga may prepare and issue a cashiers
check, he must first be instructed by his manager to do so. Then the prepared check
will be back to the Accounting Section for examination, then back to the manager for
his signature and to the other officer for his counter-signature, the check is then
returned to accused Abelardo Salonga for eventual release to the banks client.

According to Abelardo Salonga, he first learned that he was being accused of the
present charge after the audit of his department was concluded. Two persons from the
Internal Affairs Department invited him to an investigation. These two persons
allegedly forced (him) to go with them and even dragged him into the car and brought
him to the Departments Office at PS Bank, Ayala Avenue.

During the investigation, accused Abelardo Salongas alleged statement was

typewritten but he was neither asked any questions nor did the investigators talk to
him. He was given an opportunity to read his statement but only for a limited period
of time. He allegedly affixed his signature involuntarily on the typewritten statement
after the investigators threatened him and hit him on the nape. The investigators never
informed him of his right to counsel and neither did they believe this claim of
innocence.
Upon learning that a criminal complaint was filed against him, accused Abelardo
Salonga sought the assistance of a lawyer and wrote a letter to the Personnel Head of
Metrobank. In the said letter, accused Abelardo Salonga admitted his negligence in
connection with the subject check because of the threats employed by the
investigators and that he has never been employed nor has he any interest whatsoever
with Firebreak Sales and Services.

In the letter which accused Abelardo Salonga sent to Atty. Severino Tabios of
Metrobank (Exhibit C prosecution), said accused offered to pay the bank the amount
of P8,500.00 just to finish the case so that he can earn a living and get a new job.

The rebuttal evidence of the prosecution was summarized by the trial court thus:

x x x, Benito Cuan, bank officer of the Department of Internal Affairs of Metrobank,

testified that he, together with Valentino Elevado composed the investigating team
tasked with the investigation ofthe cashiers check anomaly. Also present during the
investigation were the following: Cristina Cubangay, Susan Trinidad, and Atty.
Narciso Belasa. The investigation transpired at the PS Bank building, Ayala Avenue
which housed the Department of Internal Affairs of Metrobank.

Benito Cuan declared that upon orders of his superior, he was instructed to go to
Metrobank plaza located along Buendia Avenue to invite accused Abelardo Salonga
to an interview to shed light on the cashiers check anomaly. The said accused
allegedly voluntarily acceded to the invitation and the two then proceeded to PS Bank
building. No force or coercion was employed to procure the attendance of Abelardo
Salonga in the said investigation. In the contrary, Abelardo Salonga voluntarily and of
his own free will accompanied Benito Cuan to PS BANK Building. x x x (Decision,
Criminal Case No. 33127, pp. 2-7).

Giving full credence to the evidence of the prosecution, the trial court convicted
accused-appellant of the crime charged. The Court of Appeals affirmed the trial courts
Decision convicting accused-appellant, however, the appellate court ruled that the
penalty imposed was erroneous and modified the same by increasing the penalty
imposed to reclusion perpetua, The Court of Appeals disposed as follows:

WHEREFORE, pursuant to the above-quoted provisions of Rules on Criminal

Procedure and Article VIII, Section 5 of the 1987 Constitution of the Philippines and
finding Abelardo Salonga guilty beyond reasonable doubt of the crime of Qualified
Theft through Falsification of Commercial Document, as defined and penalized under
Article 48 in relation to Articles 309, 310 and 172, RPC, as amended with the penalty
of reclusion perpetua, We certify this case to the Honorable Supreme Court for final
determination and appropriate action (People vs. Demecillo, 186 SCRA 161, 164).

Having imposed reclusion perpetua on accused-appellant, the Court of Appeals as

earlier noted, refrained from entering judgment and certified the case to the Supreme
Court for review, in conformity with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court.
In his Supplemental Brief , accused-appellant adopts the following first and
second assigned errors found in the Appellants Brief dated February 7, 1996 filed with
the Court of Appeals, to wit:
I
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE ALLEGED EXTRA
JUDICIAL CONFESSION/ADMISSION (EXH. `B') OF THE ACCUSED-APPELLANT
ABELARDO SALONGA WHICH WAS OBTAINED IN VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO COUNSEL.
 II
THE TRIAL COURT ERRED IN RELYING ON OTHER EVIDENCE WHICH ARE NOT
SUFFICIENT TO SUSTAIN CONVICTION BEYOND REASONABLE DOUBT FOR THEY
ARE BASED ON SPECULATIONS, CONJECTURES AND PROBABILITIES.

with the addition of the following third assigned error:

III
THE COURT OF APPEALS ERRED IN FINDING ACCUSED-APPELLANT ABELARDO
SALONGA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED
THEFT THROUGH FALSIFICATION OF COMMERCIAL DOCUMENT WITH THE
PENALTY OF RECLUSION PERPETUA.

The foregoing assignment of errors may be reformulated into these three issues or
topics: (1) admissibility of accused-appellants extra-judicial confession/admission; (2)
credibility of the witnesses and sufficiency of the prosecution evidence; (3) propriety
of the penalty imposed.
First, we reject accused-appellants argument that his so-called extra-judicial
confession/admission taken on January 27, 1987[5] marked as Exhibit B is inadmissible
in evidence on the ground that the waiver of his right to counsel was made without the
assistance of counsel in violation of Section 20, Article IV of the 1973 Constitution
which mandates that x x x (a)ny person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to be informed of such
right. x x x Any confession obtained in violation of this section shall be inadmissible
in evidence.
Applying said provision of the 1973 Constitution, the Court in Morales, Jr. vs.
Enrile[6] laid down the guidelines to be observed strictly by law enforcers during
custodial investigation:

At the time a person is arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrest and he must be shown the warrant of arrest, if any. He
shall be informed of his constitutional rights to remain silent and to counsel, and that
any statement he might make could be used against him. The person arrested shall
have the right to communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible - or by letter or messenger. It shall be
the responsibility of the arresting officer to see to it that that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone on his behalf. The right to
counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in
evidence.

Clearly, the constitutional right to counsel as enunciated in the aforecited case

may be invoked only by a person under custodial investigation for an
offense. Accused-appellants extra-judicial confession was properly admitted and
considered by the trial court considering that when accused-appellant gave his
statement he was not under custodial investigation. Custodial investigation is the stage
where the police investigation is no longer a general inquiry into an unsolved crime
but has begun to focus on a particular suspect taken into custody by the police who
carry out a process of interrogation that lends itself to elicit incriminating
statements.[7] Indeed, custodial investigation refers to questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.[8]
 In this case, when Arthur Christy Mariano of the spot audit group discovered that
there was a discrepancy in the proof sheet brought about by the issuance of a cashiers
check numbered 013702 made payable to Firebrake Sales and Services in the amount
of Thirty Six Thousand, Four Hundred Eighty pesos and Thirty centavos
(P36,480.30), accused-appellant was summoned to appear before Valentino Elevado,
Assistant Accountant, Department of Internal Affairs of Metrobank for questioning. It
bears stressing that Elevado is not a police officer or law enforcer but a private person
who was a bank officer. In the course of the interview, accused-appellant admitted
having issued the subject cashiers check without any legitimate transaction, to his co-
accused Amiel Garcia who was then encountering financial difficulties. He also
admitted that out of the amount of the check, P8,500.00 went to his personal
benefit. His admissions were reduced into writing and offered as Exhibit B by the
prosecution. It is well-settled that the legal formalities required by the fundamental
law of the land apply only to those extra-judicial confessions obtained during
custodial investigation.[9]
Second, in view of our ruling on the admissibility of the extra-judicial confession,
we must likewise reject accused-appellants contention that his conviction was based
merely on speculations, possibilities, suspicions and conjectures. According to him,
while it was established that as Assistant Cashier he had access to the preparation and
releasing of Metrobank cashiers checks, there was no evidence that he was seen in the
actual act of falsifying the check; releasing it; or encashing the same. He argues
further that conspiracy with his co-accused in the commission of the offense was not
proved clearly and convincingly. Evidently, accused-appellants arguments are still
premised on the inadmissibility of his written extra-judicial confession which we have
already affirmed as admissible.As mentioned earlier, accused-appellant admitted in
said extra-judicial confession that he issued the subject cashiers check without a
legitimate transaction to Amiel Garcia; that his co-conspirators were Garcia and
Pangilinan; and that he got a share of P8,500.00 from the sum encashed.
We are in accord with the findings of both the trial court and appellate court that
the prosecution established beyond reasonable doubt the participation of accused-
appellant in the crime charged. It was established that accused-appellant was the
custodian of the blank Metrobank cashiers check which was processed and
encashed. Arthur Christy Mariano of the spot audit group testified that the amount of
accounts payable for October 23, 1986 as reflected in the proof sheet did not tally with
the debit tickets of the same date, showing that the check was issued without any
transaction. He also testified that after finding basic differences in the signature of
bank manager Antonia Manuel appearing on the subject check with other specimens
he conferred with the latter who told him that the signature appearing therein was not
hers. Manager Antonia Manuel likewise testified that the signature appearing in the
cashiers check varies with the way she signs. Significantly, in a letter dated September
15, 1987 to Atty. Severino S. Tabios of Metrobank marked as Exhibit C, accused-
appellant confirmed the statements in his extra-judicial confession and offered to
return the amount of P8,500.00, portions of which we quote:

x x x.

This is with reference to the banks criminal case against me, which was filed through
your lawyers and is now subject of arraignment at the at the Makati Fiscals Office,
documented as Case No. 87-3791.

I will not expound further my involvement in this case as I have already admittingly
confessed during the companys investigation. An involvement in which I could not
still fathom and still repenting in having so, relinquisihing all the years of stay in your
company where Ive learned a lot and reared my family. x x x
x x x.The amount involve is only very minimal (involved is P8,5000.00) of which I
am willing to pay back the bank by Janaury 1988.

Furthermore, Assistant Accountant Valentino Elevado (Internal Affairs) who

investigated the anomalies surrounding the issuance of the check testified that he
personally interviewed accused-appellant regarding the matter. Benito T. Cuan
testified that he was present during the entire interview and signing of the statement
by accused-appellant and that no force or coercion was employed against accused-
appellant during the interview. It is a well-entrenched rule that this Court will not
interfere with the trial courts assessment of the credibility of the witnesses absent any
indication or showing that the trial court has overlooked some material facts or
gravely abused its discretion, especially where, as in this case, such assessment is
affirmed by the Court of Appeals.[10] Verily, we find that the evidence for the
prosecution deserves credence and that the same is sufficient for conviction.
Lastly, we come to the correctness of the penalty imposed. The crime charged is
Qualified Theft through Falsification of Commercial Document. The information
alleged that the accused took P36,480.30 with grave abuse of confidence by forging
the signature of officers authorized to sign the subject check and had the check
deposited in the account of Firebrake Sales and Services, a fictitious payee without
any legitimate transaction with Metrobank. Theft is qualified if it is committed with
grave abuse of confidence.[11] The fact that accused-appellant as assistant cashier of
Metrobank had custody of the aforesaid checks and had access not only in the
preparation but also in the release of Metrobank cashiers checks suffices to designate
the crime as qualified theft as he gravely abused the confidence reposed in him by the
bank as assistant cashier. Since the value of the check is P38,480.30, the imposable
penalty for the felony of theft is prision mayor in its minimum and medium periods
and one year of each additional ten thousand pesos in accordance with Article 309,
paragraph 1 of the Revised Penal Code.[12] However, under Article 310 of the Revised
Penal Code,[13] the crime of qualified theft is punished by the penalties next higher by
two (2) degrees than that specified in Article 309 of the Revised Penal Code. Two (2)
degrees higher than prision mayor in its minimum and medium periods is reclusion
temporal in its medium and maximum periods. In addition, forging the signatures of
the bank officers authorized to sign the subject cashiers check was resorted to in order
to obtain the sum of P36,480.30 for the benefit of the accused. As correctly held by
the courts a quo, falsification of the subject cashiers check was a necessary means to
commit the crime of qualified theft resulting in a complex crime. Hence, we apply
Article 48 of the Revised Penal Code, which provides that, x x x where an offense is a
necessary means for committing the other, the penalty for the more serious crime in
its maximum period shall be imposed. Considering that qualified Theft is more
serious than falsification of bank notes or certificates which is punished under Article
166 (2) of the Revised Penal Code with prision mayor in its minimum period,[14] the
correct penalty is fourteen (14) years and eight (8) months of reclusion temporal as
minimum to twenty (20) years of reclusion temporal as maximum.
WHEREFORE, the decision of the Court of Appeals dated September 4, 1997 is
hereby AFFIRMED with the MODIFICATION that the penalty is reduced to fourteen
(14) years and eight (8) months of reclusion temporal as minimum to twenty (20)
years of reclusion temporal as maximum.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
 EN BANC

G.R. No. 199149 January 22, 2013

LIWAYWAY VINZONS-CHATO, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E.
PANOTES, Respondents.

x-----------------------x

G.R. No. 201350

ELMER E. PANOTES, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and LIWAYWAYVINZONS-
CHATO, Respondents.

DECISION

PERLAS -BERNABE, J.:

Before us are consolidated cases involving the use of the picture images of ballots as the equivalent
of the original paper ballots for purposes of determining the true will of the electorate in the Second
Legislative District of Camarines Norte in the May 10, 2010 elections, which was "the maiden run for
full automation,"1 as authorized by Republic Act (R.A.) No. 93692 amending R.A. No. 8436 that
called for the adoption of an automated election system in national and local elections.

The Factual Antecedents

Liwayway Vinzons-Chato (Chato) renewed her bid in the May 10, 2010 elections as representative
of the Second Legislative District of Camarines Norte, composed of the seven (7) Municipalities of
Daet, Vinzons, Basud, Mercedes, Talisay, San Vicente, and San Lorenzo, with a total of 205
clustered precincts. She lost to Elmer E. Panotes (Panotes) who was proclaimed the winner on May
12, 2010 having garnered a total of 51,707 votes as against Chato's 47,822 votes, or a plurality of
3,885 votes,3 summarized in the petition4 as follows:
1âw phi1

No. of votes for No. of votes for

Municipality Panotes Chato

Daet 18,085 15,911

Vinzons 8,107 6,713

Basud 7,879 6,527

Mercedes 7,739 9,333

Talisay 5,015 4,190

San Vicente 2,359 2,453

San Lorenzo 2,520 2,695

TOTAL 51,707 47,822

On May 24, 2010, Chato filed an electoral protest before the House of Representatives Electoral
Tribunal (HRET), which was docketed as HRET Case No. 10-040, assailing the results in all the 160
clustered precincts in four (4) municipalities, namely: Daet, Vinzons, Basud and Mercedes.5 No
counter-protest was interposed by Panotes.
Pursuant to Rule 37 of the 2011 Rules of the HRET, Chato designated forty (40) pilot clustered
precincts, equivalent to 25% of the total number of protested clustered precincts, in which revision of
ballots shall be conducted. The initial revision of ballots, conducted on March 21 - 24, 2011, showed
a substantial discrepancy between the votes of the parties per physical count vis-a-vis their votes
per election returns in the following precincts of the Municipalities of Basud and Daet:6

Based

Votes for Chato Votes for Panotes

Clustered
Precinct Per Per Gain Per Per Gain
No. Election Physical or Election Physical or
Returns Count -Loss Returns Count -Loss

6 166 183 17 268 164 - 104

7 119 134 15 206 85 - 121

8 70 81 11 239 133 - 106

15 87 105 18 193 100 - 93

19 148 191 43 239 138 - 101

25 233 261 28 399 251 - 148

27 263 287 24 366 214 - 152

Daet

Votes for Chato Votes for Panotes

Clustered
Precinct Per Per Gain Per Per Gain
No. Election Physical or Election Physical or
Returns Count -Loss Returns Count -Loss

2 269 295 26 354 157 - 197

7 243 275 32 363 2 - 361

17 183 202 19 269 36 - 233

23 281 318 37 440 334 - 106

24 223 261 38 341 227 - 114

25 202 229 27 391 343 - 48

31 258 284 26 407 305 - 102

32 243 267 24 521 511 - 10

40 259 293 34 373 96 - 277

41 226 260 34 348 54 - 294

 44 294 313 19 404 357 - 47

56 287 309 22 399 320 - 79

60 153 182 29 252 77 - 175

On March 24, 2011, Panotes lost no time in moving7 for the suspension of the proceedings in the
case, and praying that a preliminary hearing be set in order to determine first the integrity of the
ballots and the ballot boxes used in the elections. He further urged that, should it be shown during
such hearing that the ballots and ballot boxes were not preserved, the HRET should direct the
printing of the picture images of the ballots of the questioned precincts stored in the data storage
device for said precincts.

The motion was prompted by certain irregularities8 in the condition of the ballot boxes subject of the
revision, which Panotes described as follows:

Outer condition:

a. The top cover of the ballot box is loose and can be lifted, so the election documents – e.g.
ballots, minutes of voting, election returns – can be taken out.

b. In some ballot boxes, when the key was inserted into the padlock, the upper portion of the
lock disconnected from its body, which means that the lock had been previously tampered
with.

c. In the municipalities where Petitioner (Panotes) was able to seal the ballot boxes with
packing tape, this tape seal was broken/cut/sliced, which means that the ballot boxes had
been opened prior to the initial revision.

d. Some of the self-locking security seal was not properly attached.

Inner condition:

a. The contents of the ballot box – e.g. ballots and the documents – were in total disarray,
which means that it was tampered with.

b. Some of the Minutes of Voting and Election Returns were MISSING and only the ballots
were found inside the ballot box.

c. The ballots were unnecessarily folded and/or crumpled in the clustered precincts where
the votes of (Panotes) were substantially reduced.

Consequently, in its Resolution9 No. 11-208, the HRET directed the copying of the picture image files
of ballots relative to the protest, which was scheduled to commence on April 25, 2011 and everyday
thereafter until completion.10 Chato, however, moved11 for the cancellation of the decryption and
copying of ballot images arguing inter alia that there was no legal basis therefor and that the HRET
had not issued any guidelines governing the exercise thereof.

Notwithstanding, the decryption and copying proceeded as scheduled.

Chato then filed an Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied
Ballot Images in the Instant Case12 reiterating the lack of legal basis for the decryption and copying
of ballot images inasmuch as no preliminary hearing had been conducted showing that the integrity
of the ballots and ballot boxes was not preserved. She cited Section 10(d) of the HRET Guidelines
on the Revision of Ballots, which reads:

(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct.
The Tribunal shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision, (as
amended per Resolution of February 10, 2011).
Moreover, Chato alleged that the ballot images were taken from polluted Compact Flash (CF) cards.
Atty. Anne A. Romero-Cortez (Atty. Cortez), the Camarines Norte Provincial Elections Supervisor,
was said to have admitted during canvassing proceedings that the CF cards for the Municipalities of
Labo, Vinzons and Basud were defective and had to be replaced. The pertinent portion of the
Transcript of Stenographic Notes (TSN) taken during the canvassing proceedings for President and
Vice-President held on June 2, 2010 is reproduced hereunder:

REP. VINZONS-CHATO: Yes, I requested the presence of the other two members because the
information that I gathered would be that there was a time log of about six hours where you would
stop the canvassing, and the information that we got from our lawyers there was that there were
certain cards that had no memory and had to be reconfigured from some precincts, and that, in the
meantime, you stopped the canvassing and resumed after six hours.

ATTY. ROMERO-CORTEZ: This is what happened. Because of the municipalities of Labo, Vinzons,
and Basud, there were CF cards that had to be replaced because they were defective.

REP. VINZONS-CHATO: But, that was after the voting had closed, right? The voting had closed and
those cards were defective and you had to replace them.

ATTY. ROMERO-CORTEZ: To my recollection, Your Honor, that was during May 10.13

Panotes, on the other hand, stressed in his Opposition14 to the foregoing motion that the decryption
and copying of the ballot images was at the behest of the HRET itself, acting through Atty. Marie
Grace T. Javier-Ibay, who formally requested on February 10, 2011 the copying of the picture image
files of ballots and election returns in 13 election protests pending before it. Should he then decide to
use the decrypted and copied ballot images, there is nothing in the HRET rules that prohibit the
same.

With respect to the allegation that certain defective CF cards were replaced, Panotes argued15 that it
was during the election day, May 10, 2010, that the CF cards were found to be not working so they
had to be re-configured. Consequently, the voting in some precincts in the Municipalities of Labo,
Vinzons and Basud started late, but the voting period was extended accordingly. For this reason, the
canvassing before the Provincial Board of Canvassers was halted in order to wait for the
transmission of the results from the Municipal Board of Canvassers, which could not be done until
each and every clustered precinct was duly accounted for.

The case was subsequently set for preliminary hearing on May 27, 2011 in order to determine the
integrity of the CF cards used in the questioned elections.16 In said hearing, Chato presented the
following witnesses: (1) Oscar Villafuerte, Vice-Chairman of the Provincial Board of Canvassers of
Camarines Norte; (2) Reynaldo Mago, a media practitioner; and (3) Angel Abria, an Information
Technology (IT) expert.17

On June 8, 2011, the HRET issued the assailed Resolution18 No. 11-321 denying Chato's Urgent
Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant
Case on the ground that she failed to show proof that the CF cards used in the twenty (20) precincts
in the Municipalities of Basud and Daet with substantial variances were not preserved or were
violated. The Tribunal stressed that, since Atty. Cortez was not presented in court to clarify the
matter of the alleged replacement of CF cards, it remained unclear whether the replacement was
done before or after the elections, and which precincts were involved. Moreover, the testimonies of
the witnesses that were actually presented were found to be irrelevant and immaterial.

Significantly, the HRET declared that, although the actual ballots used in the May 10, 2010 elections
are the best evidence of the will of the voters, the picture images of the ballots are regarded as the
equivalent of the original, citing Rule 4 of the Rules on Electronic Evidence, which reads:

Sec. 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.

Sec. 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 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.

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.

Aggrieved, Chato filed a Motion for Reconsideration19, which was denied in the Resolution20 No. 11-
487 dated September 15, 2011. The HRET categorically held that:

x x x (T)he votes determined after the revision in the 20 precincts in Basud and Daet, which yielded
reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. Hence,
the Tribunal has to rely on what is reflected in the election returns and/or statement of votes by
precinct the same being the best evidence of the results of the election in said precincts in lieu of the
altered ballots.

The Issues

G.R. No. 199149

In this petition for certiorari and prohibition with prayer for a temporary restraining order and/or writ of
prohibitory injunction, Chato claims that the HRET committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing Resolution No. 11-321 dated June 8, 2011 and Resolution
No. 11-487 dated September 15, 2011. Her petition is anchored on the following grounds:

I.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – DESPITE
THE FACT THAT UNDER REPUBLIC ACT NO. 9369 THE PICTURE IMAGES OF THE
BALLOTS ARE NOT THE "OFFICIAL BALLOTS" SINCE THE AUTOMATED ELECTION
SYSTEM (AES) USED DURING THE MAY 2010 ELECTIONS WAS PAPER BASED.

II.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF THE
PICTURE IMAGES OF THE BALLOTS CANNOT BE REGARDED AS THE EQUIVALENT
OF THE ORIGINAL PAPER BALLOTS UNDER THE RULES ON ELECTRONIC EVIDENCE.
IN THE FIRST PLACE, THE RULES ON ELECTRONIC EVIDENCE DO NOT EVEN APPLY
TO THE PICTURE IMAGES OF THE BALLOTS.

III.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF
UNDER THE ELECTRONIC COMMERCE ACT OF 2000, THE PICTURE IMAGES OF THE
PAPER BALLOTS ARE NOT THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS.

IV.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF
PETITIONER HAS SHOWN BY SUBSTANTIAL EVIDENCE THAT THE CF CARDS USED
IN THE MAY 2010 ELECTIONS WERE NOT PRESERVED OR WERE VIOLATED.

V.

THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF
THERE IS NO LEGAL BASIS FOR THE HONORABLE TRIBUNAL TO CONSIDER THE
 PICTURE IMAGE OF THE BALLOTS AS EVIDENCE, SINCE SUCH PICTURE IMAGES
ARE NOT EVEN RECOGNIZED AND THEIR APPRECIATION ARE NOT PROVIDED FOR,
UNDER THE OMNIBUS ELECTION CODE.

VI.

THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) DESPITE THE PENDENCY OF THE COMELEC INVESTIGATION ON
THE MAIN CF CARD FOR CLUSTERED PRECINCT 44 OF THE MUNICIPALITY OF DAET.

VII.

THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) BASED ON VILLAFUERTE VS. JACOB (15 HRET REPORT 754),
WHICH IS ONLY AN HRET CASE WHICH HAS NO PRECEDENTIAL VALUE.

VIII.

THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-321 (DATED 08
JUNE 2011) AND RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – IN
CONTRAVENTION OF CASE LAW THAT THERE SHOULD BE A FULL BLOWN TRIAL
CONCERNING THE INTEGRITY OF THE BALLOTS.21

G.R. No. 201350

After the initial revision of the pilot protested clustered precincts, Chato moved,22 as early as March
24, 2011, for the revision of ballots in all of the protested clustered precincts arguing that the results
of the revision of twenty-five percent (25%) of said precincts indicate a reasonable recovery of votes
in her favor. On May 12, 2011, she filed a second motion23 reiterating her prayer for the
continuance of the revision. The HRET denied the motion "until the Tribunal shall have determined
the merit or legitimacy of the protest, relative to the revised forty (40) pilot protested clustered
precincts."24 For the same reason, the HRET denied two (2) other similar motions25 filed by Chato.

However, on March 22, 2012, the HRET issued the assailed Resolution26 No. 12-079 directing the
continuation of the revision of ballots in the remaining seventy-five percent (75%) protested clustered
precincts, or a total of 120 precincts. Expectedly, Panotes moved27 for reconsideration of Resolution
No. 12-079, which was denied in the Order28 dated April 10, 2012 for lack of merit. The HRET further
warned that any attempt on the part of the revisors to delay the revision proceedings or to destroy
the integrity of the ballots and other election documents involved, including but not limited to,
marking or tearing of ballots shall be sufficient ground(s) for immediate disqualification.

Panotes is now before Us via the instant petition for certiorari and prohibition alleging grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the HRET in issuing Resolution
No. 12-079 and Order dated April 10, 2012 considering that –

1.THE HONORABLE TRIBUNAL ALREADY CATEGORICALLY RULED IN ITS OWN

RESOLUTION NO. 11-487 THAT THE VOTES DETERMINED IN THE REVISION CANNOT
BE RELIED UPON SINCE THEY ARE THE PRODUCT OF ALTERED BALLOTS;

2.THE ISSUES RESOLVED IN RESOLUTION NO. 11-487 DATED SEPTEMBER 8, 2011

AND THOSE IN RESOLUTION NO. 12-079 DATED MARCH 22, 2012 ARE
INTERRELATED;

3.PURSUANT TO THE RULING OF THIS MOST HONORABLE COURT IN THE CASE OF

VARIAS VS. COMELEC (G.R. NO. 189078 FEBRUARY 11, 2010), THE RESULTS OF THE
REVISION OF QUESTIONABLE BALLOTS CANNOT PREVAIL OVER ELECTION
RETURNS;

4.THE PICTURE IMAGE OF THE BALLOTS MAY BE USED AS PROOF OF THE

INTEGRITY OF THE PAPER BALLOTS;

5.RESOLUTION NO. 12-079 HAS NO LEGAL AND FACTUAL BASES TO STAND ON

BECAUSE PRIVATE RESPONDENT FAILED TO ESTABLISH THE MERIT OR
LEGITIMARY [sic] OF HER PROTEST CONSIDERING THAT SHE FAILED TO MAKE A
REASONABLE RECOVERY OR MUCH LESS, ANY RECOVERY AT ALL;

6.RESOLUTION NO. 12-079 IS CONTRADICTORY TO THE FINDINGS OF THE PUBLIC

RESPONDENT HRET IN ITS RESOLUTION NO. 11-487;
 7.THE PENDENCY OF THE PETITION FOR CERTIORARI FILED BY PRIVATE
RESPONDENT BEFORE THE SUPREME COURT IS A PRELIMINARY MATTER THAT
MUST BE RESOLVED FIRST BEFORE THE HONORABLE TRIBUNAL MAY ORDER THE
REVISION OF THE REMAINING 75% OF THE PROTESTED PRECINCTS;

8.THE RELIABILITY OF THE COMPACT FLASH CARDS HAS NOT BEEN SHOWN TO BE
QUESTIONABLE;

9.THE RESULT OF THE RECOUNT CANNOT BE USED TO OVERTURN THE RESULTS

AS REFLECTED IN THE ELECTION RETURNS BECAUSE THE BALLOTS IN EP CASE
NO. 10-040 HAVE BEEN TAMPERED.29

The Ruling of the Court

"It is hornbook principle that our jurisdiction to review decisions and orders of electoral tribunals is
exercised only upon showing of grave abuse of discretion committed by the tribunal;" otherwise, we
shall not interfere with the electoral tribunal’s exercise of its discretion or jurisdiction. "Grave abuse
of discretion has been defined as the capricious and whimsical exercise of judgment, or the exercise
of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion
of positive duty."30

The acts complained of in these cases pertain to the HRET’s exercise of its discretion, an exercise
which we find to be well within the bounds of its authority and, therefore, beyond our power to restrict
or curtail.

G.R. No. 199149

Chato assails in this petition the following issuances of the HRET: (1) Resolution No. 11-321 dated
June 8, 2011 denying her Urgent Motion to Prohibit the Use by Protestee of the Decrypted and
Copied Ballot Images in the Instant Case; and (2) Resolution No. 11-487 dated September 15, 2011
denying her Motion for Reconsideration of Resolution No. 11-321.

The crucial issue posed by Chato is whether or not the picture images of the ballots may be
considered as the "official ballots" or the equivalent of the original paper ballots which the voters
filled out. She maintains that, since the automated election system (AES) used during the May 10,
2010 elections was paper-based,31 the "official ballot" is only the paper ballot that was printed by the
National Printing Office and/or the Bangko Sentral ng Pilipinas pursuant to Section 15 of R.A. No.
8436, as amended by R.A. No. 9369, which reads in part as follows:

Sec.15. Official Ballot. – x x x

xxxx

With respect to a paper-based election system, the official ballots shall be printed by the National
Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt. The Commission may
contact the services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and
deputized citizen's arms of the Commission shall assign watchers in the printing, storage and
distribution of official ballots.

xxxx

Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot,
whether printed or generated by the technology applied, that faithfully captures or represents the
votes cast by a voter recorded or to be recorded in electronic form."

An automated election system, or AES, is a system using appropriate technology which has been
demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result,
and other electoral process.32There are two types of AES identified under R.A. No. 9369: (1) paper-
based election system; and (2) direct recording electronic election system. A paper-based election
system, such as the one adopted during the May 10, 2010 elections, is the type of AES that "use
paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits
electronically the results of the vote count."33 On the other hand, direct recording electronic election
system "uses electronic ballots, records, votes by means of a ballot display provided with
mechanical or electro-optical component that can be activated by the voter, processes data by
means of computer programs, record voting data and ballot images, and transmits voting results
electronically."34
As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to
fill out an official paper ballot by shading the oval opposite the names of their chosen candidates.
Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously,35 meaning, in just one
pass.36 As established during the required demo tests, the system captured the images of the ballots
in encrypted format which, when decrypted for verification, were found to be digitized
representations of the ballots cast.37

We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise "official ballots" that faithfully captures in electronic
form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral protest.

It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in
an encrypted format in the CF cards.38 "Encryption is the process of encoding messages (or
information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties
can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted
using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the
use of an encryption key, which specifies how the message is to be encoded. Any adversary that
can see the ciphertext, should not be able to determine anything about the original message. An
authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually
requires a secret decryption key, that adversaries do not have access to."39

Despite this security feature, however, the possibility of tampering or substitution of the CF cards did
not escape the HRET, which provided in its Guidelines on the Revision of Ballots that:

Sec. 11. Printing of the picture images of the ballots in lieu of photocopying. – Unless it has been
shown, in a preliminary hearing set by the parties or motu propio, that the integrity of any of the
Compact Flash (CF) Cards used in the May 10, 2010 elections was not preserved or the same was
violated, as when there is proof of tampering or substitution, the Tribunal, in lieu of photocopying of
ballots upon any motion of any of the parties, shall direct the printing of the picture image of the
ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal
shall provide a non-partisan technical person who shall conduct the necessary authentication
process to ensure that the data or image stored is genuine and not a substitute.

Accordingly, the HRET set the instant case for preliminary hearing on May 27, 2011, and directed
Chato, the protestant, to present testimonial and/or documentary evidence to show proof that the
integrity of the CF cards used in the May 10, 2010 elections was not preserved or was violated.40

However, in the assailed Resolution No. 11-321, the HRET found Chato's evidence insufficient. The
testimonies of the witnesses she presented were declared irrelevant and immaterial as they did not
refer to the CF cards used in the 20 precincts in the Municipalities of Basud and Daet with
substantial variances. Pertinent portions of the transcripts of stenographic notes during the May 27,
2011 preliminary hearing are quoted hereunder:41

REYNANTE B. MAGO:

Q: Do you have any knowledge regarding the municipalities of Basud and Daet?

A: Wala po kasi hindi naman yung ang aking bet [sic, should have been "beat", a journalistic jargon
for the reporter's official place of assignment]

Q: Wala kang nalalaman regarding the municipalities of Basud and Daet?

A: Wala po.

Q: Are you sure?

A: Sure na sure po kasi hindi ko naman po yun bet [sic] noong mga panahon na yun. Wala po akong
direct na knowledge o participation regarding that during the time of election period.

PROVINCIAL PROSECUTOR OSCAR J. VILAFUERTE:

Q: Before proceeding with your testimony, I would ask if you have any knowledge about the election
regarding the municipalities of Basud and Daet?

A: Well, as the Vice-Chairman of the Provincial Board of Canvassers, Your Honor, in the last May
10, 2010 elections, yes.
Q: Regarding the last CF cards?

A: No. We are just limited to the reception of the election results.

Q: So, with regard to the CF cards in the municipalities of Basud and Daet, you do not have any
knowledge at all?

A: Personally, no, because it does not affect us, Your Honor.

MR. ANGEL S. AVERIA, JR:

Q: Will you be testifying regarding CF cards involving the municipalities of Daet and Basud?

A: Not specific to those municipalities.

Q: Sa Daet, wala?

A: Wala.

Q: Sa Basud, wala?

A: Wala ho. The reports I wrote for CENPEG is on a national scale.

To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into
its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary
weight42 of testimonies presented before it. Thus, for failure of Chato to discharge her burden of
proving that the integrity of the questioned CF cards had not been preserved, no further
protestations to the use of the picture images of the ballots as stored in the CF cards should be
entertained.

Moreover, after having participated and presented her evidence at the May 27, 2011 preliminary
hearing, Chato cannot now be heard to complain that the proceedings therein did not amount to a
full blown trial on the merits required in the case of Tolentino v. COMELEC43 for weighing the
integrity of ballots.

Her allegation with respect to the pendency of the COMELEC investigation on the main CF card for
Clustered Precinct 44 of the Municipality of Daet, which was previously ordered by the HRET itself
when the election officer submitted only the back-up CF card that did not, however, contain picture
images of the ballots,44 could not in the least bit affect the resolution of this case. As correctly pointed
out by the HRET, the same concerns only one (1) precinct out of the 20 precincts with substantial
variances.45 At any rate, the following explanation46 proferred by the HRET should put the issue to
rest, viz:

x x x On November 2, 2011, John Rex C. Laudiangco of the COMELEC Law Department, filed
Comelec's Compliance with Manifestation and Motion to Admit the Attached Fact-Finding
Investigation Report explaining the delay in the conduct of the investigation which was duly
conducted on October 7, 2011, and submitting therewith a comprehensive Fact-Finding Investigation
Report on the said investigation which was docketed in the Law Department as Case No. FF.INV.
(LD) 11-46 entitled "In the Matter of Investigation on What Happened to the Main CF (Compact
Flash) card for Clustered Precinct No. 44 for the Municipality of Daet, Camarines Norte."

In sum, the investigation revealed that the main CF Card for CP No. 44 of the Municipality of Daet
could possibly be located inside the ballot box of the Municipal Board of Canvassers (MBOC) of
Daet, Camarines Norte (serial no. CE-07-166991), after having been allegedly submitted in an
improvised envelope, by the Board of Election Inspectors (BEI) of said CP 44 to the MBOC. It was,
therefore, recommended that said ballot box be opened to retrieve the said CF card.

Accordingly, in her January 6, 2012 letter to public respondent, Atty. Anne A. Romero-Cortez
submitted certain documents relative to the opening of the ballot box of the MBOC of Daet,
Camarines Norte (serial no. CE-07-166991) so the main CF Card for CP 44 of Daet may be
retrieved and its custody turned over to the Election Records and Statistics Department (ERSD),
COMELEC.

Likewise, in her January 6, 2012 letter to public respondent, ERSD Director Ester L. Villaflor-Roxas
requested that a representative from public respondent be present on the day to witness the
verification and backing-up of the contents of the main CF card for CP No. 44 of Daet, Camarines
Norte.
Verily, the case of the alleged missing CF Card for Clustered Precinct No. 44 is no mystery at all.

G.R. No. 201350

In the main, Panotes ascribes grave abuse of discretion on the part of the HRET in ordering the
continuation of the revision of ballots in the remaining 75% of the protested clustered precincts
despite having previously ruled that the votes determined after the revision in the 20 precincts in the
Municipalities of Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do
not reflect the true will of the electorate.

The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the
election, returns and qualifications" of its members. By employing the word "sole", the Constitution is
emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its
members is intended to be its own – full, complete and unimpaired.47 The Tribunal, thus,
unequivocally asserted its exclusive control in Rule 7 of the 2011 HRET Rules, as follows:

Rule 7. Exclusive Control of Functions. – The Tribunal shall have exclusive control, direction, and
supervision of all matters pertaining to its own functions and operation.

There can be no challenge, therefore, to such exclusive control absent any clear showing, as in this
case, of arbitrary and improvident use by the Tribunal of its power that constitutes a denial of due
process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting
such grave abuse of discretion that there has to be a remedy therefor.48

Contrary to Panotes' posturing, there existed legal and factual bases for the revision of the remaining
75% of the protested clustered precincts. Rule 37 of the 2011 HRET Rules clearly provides that,
after post-revision determination of the merit or legitimacy of the protest, the Tribunal may proceed
with the revision of the ballots in the remaining contested precincts, thus:

Rule 37. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of
Counter-Protest; Pilot Precincts; Initial Revision. – Any provision of these Rules to the contrary
notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, the
Protestant, in case the protest involves more than 50% of the total number of precincts in the district,
shall be required to state and designate in writing within a fixed period at most twenty five (25%)
percent of the total number of precincts involved in the protest which said party deems as best
exemplifying or demonstrating the electoral irregularities or fraud pleaded by him; and the revision of
the ballots or the examination, verification or re-tabulation of election returns and/or reception of
evidence shall begin with such pilot precincts designated. Otherwise, the revision of ballots or the
examination, verification and re-tabulation of election returns and/or reception of evidence shall
begin with all the protested precincts. The revision of ballots or the examination, verification and re-
tabulation of election returns in the counter-protested precincts shall not be commenced until the
Tribunal shall have determined through appreciation of ballots or election documents and/or
reception of evidence, which reception shall not exceed ten (10) days, the merit or legitimacy of the
protest, relative to the pilot protested precincts. Based on the results of such post-revision
determination, the Tribunal may dismiss the protest without further proceedings, if and when no
reasonable recovery was established from the pilot protested precincts, or proceed with the revision
of the ballots or the examination, verification and re-tabulation of election returns in the remaining
contested precincts.

Panotes argues that Chato had not made a reasonable recovery in the initial revision of ballots in the
25% pilot protested clustered precincts and, as such, the HRET should have dismissed the protest in
accordance with the aforequoted provision instead of ordering further the revision of the remaining
75% of the protested clustered precincts. 1âwphi 1

It should be pointed out, however, that the provision in question is couched in the permissive term
"may" instead of the mandatory word "shall." Therefore, it is merely directory, and the HRET is not
without authority to opt to proceed with the revision of ballots in the remaining contested precincts
even if there was no reasonable recovery made by the protestant in the initial revision.

In the assailed Resolution49 No. 12-079, the HRET justified its action by its need "to re-examine what
appears to be a peculiar design to impede the will of the electorate," and that a revision of all the
protested clustered precincts will allow it "to see the whole picture of the controversy." Thus said the
HRET:

The evidence as presented by the parties involving the twenty-five percent (25%) pilot protested
clustered precincts is still insufficient to justify an indubitable conclusion. There are still material
issues that should be taken into account. The substantial increase in the number of ballots for
protestant and the substantial decrease in the number of ballots for protestee after comparing the
election returns with the physical counts of the ballots are prima facie findings that should not be
trivialized. Also, the reliability of the compact flash cards including its admissibility was raised by the
protestant as an area of concern which needs precise and definitive ruling by the Tribunal. A
complete disavowal of the constitutional duty will be debased if the Tribunal is not going to see the
whole picture of the controversy. After all, the revision proceedings will not unduly toll the precious
time of the Tribunal. All of the ballot boxes involved in this protest are already in the custody of the
Tribunal and will not require sizeable manpower to revise it.

At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of
election contests involving its members, we cannot substitute our own judgment for that of the HRET
on the issues of whether the evidence presented during the initial revision could affect the officially
proclaimed results and whether the continuation of the revision proceedings could lead to a
determination of the true will of the electorate. 50

In any case, as pointed out by the HRET, the revision proceedings for the remaining 75% protested
clustered precincts had already been conducted from May 2-9, 2012 thereby rendering the issue
moot and academic.

Having, thus, established the futility of Panotes' case, we need not belabor the other issues raised in
this petition.

WHEREFORE, the petitions are hereby DISMISSED for lack of merit.

SO ORDERED.

EN BANC

[ GR No. 203302, Mar 12, 2013 ]

MAYOR EMMANUEL L. MALIKSI v. COMELEC +

RESOLUTION
G.R. No. 203302

CARPIO, J.:
The Case

Before the Court is a petition for certiorari[1] assailing the 14 September

2012 Resolution[2] of the Commission on Elections (COMELEC) En Banc
which affirmed the 15 August 2012 Resolution[3] of the COMELEC First
Division in EAC (AE) No. A-22-2011.

The Antecedent Facts

Emmanuel L. Maliksi (Maliksi) and Homer T. Saquilayan (Saquilayan)

were both mayoralty candidates for the Municipality of Imus, Cavite during
the 10 May 2010 Automated National and Local Elections. The Municipal
Board of Canvassers (MBC) proclaimed Saquilayan as the duly elected
municipal mayor garnering a total of 48,181 votes as against Maliksi's
39,682 votes. Thus, based on the MBC's canvass, Saquilayan won over
Maliksi by 8,499 votes.
Maliksi filed an election protest before the Regional Trial Court of Imus,
Cavite, Branch 22 (trial court), questioning the results of the elections in
209 clustered precincts. The case was docketed as Election Protest No.
009-10. In its 15 November 2011 Decision, the trial court declared Maliksi
as the duly elected Municipal Mayor of Imus, Cavite. The trial court ruled
that Maliksi garnered 41,088 votes as against Saquilayan's 40,423 votes.
Thus, based on the trial court's recount, Maliksi won over Saquilayan by a
margin of 665 votes. The dispositive portion of the trial court's decision
reads:

WHEREFORE, in view of all the foregoing, this Court finds the Election
Protest filed by Emmanuel L. Maliksi meritorious. Accordingly, Emmanuel
L. Maliksi is hereby DECLARED as the duly elected Mayor of the
Municipality of Imus, Province of Cavite after having obtained the highest
number of legal votes of 41,088 as against Protestant Homer T.
Saquilayan's 40,423 votes or a winning margin of 665 votes in favor of the
former.

Thus, the election and proclamation of Homer T. Saquilayan as Mayor of

Imus, Cavite is hereby ANNULLED and SET ASIDE and he is
COMMANDED to immediately CEASE and DESIST from performing the
duties and functions of said office.

Finally, pursuant to Section 4, Rule 14 of A.M. 10-4-1-SC, the Clerk of Court

is hereby DIRECTED to personally deliver the copy of the signed and
promulgated decision on the counsels of the parties.

SO ORDERED.[4]

Saquilayan filed an appeal before the COMELEC, docketed as EAC (AE) No.
A-22-2011. Meanwhile, in a Special Order dated 28 November 2011, the
trial court granted Maliksi's motion for execution pending appeal.

On 2 December 2011, Saquilayan also filed with the COMELEC a petition

for certiorari with prayer for the issuance of a writ of preliminary injunction
and temporary restraining order or status quo order with prayer for early
consideration, docketed as SPR (AE) No. 106-2011, assailing the trial
court's Special Order of 28 November 2011 granting execution pending
appeal. A COMELEC First Division Order dated 20 December
2011[5] enjoining the trial court from enforcing its 28 November 2011
Special Order was not implemented since only Presiding Commissioner
Rene V. Sarmiento (Sarmiento) voted to grant the temporary restraining
order while Commissioners Armando C. Velasco (Velasco) and Christian
Robert S. Lim (Lim) dissented.
 The Resolution of the COMELEC First Division

The COMELEC First Division, after inspecting the ballot boxes, ruled that it
was apparent that the integrity of the ballots had been compromised. To
determine the true will of the electorate, and since there was an allegation
of ballot tampering, the COMELEC First Division examined the digital
images of the contested ballots stored in the Compact Flash (CF) cards. The
COMELEC First Division used the following guidelines in appreciating the
contested ballots:

1. On Marked Ballots. - The rule is that no ballot should be discarded as

marked unless its character as such is unmistakable. The distinction should
always be between marks that were apparently, carelessly, or innocently
made, which do not invalidate the ballot, and marks purposely placed
thereon by the voter with a view to possible future identification of the
ballot, which invalidate it. In the absence of any circumstance showing that
the intention of the voter to mark the ballot is unmistakable, or any
evidence aliunde to show that the words or marks were deliberately written
or put therein to identify the ballots, the ballots should not be rejected.

2. On ballots claimed to have been shaded by two or more persons. -

Unlike in the manual elections where it is easy to identify if a ballot has
been written by two persons, in case of an automated election, it would be
very hard if not impossible to identify if two persons shaded a single ballot.
The best way to identify if a ballot has been tampered is to go to the digital
image of the ballot as the PCOS machine was able to capture such when the
ballot was fed by the voter into the machine when he cast his vote. In the
absence of any circumstance showing that the ballot was shaded by persons
other than the voter, the ballots should not be rejected to give effect to the
voter's intent.

3. On ballots with ambiguous votes. - It has been the position of the

Commission to always take into consideration [that] the intent of the voter
shall be given effect, taking aside any technicalities. A ballot indicates the
voter's will. In the reading and appreciation of ballots, every ballot is
presumed valid unless there is a clear reason to justify its rejection. The
object in the appreciation of ballots is to ascertain and carry into effect the
intention of the voter, if it can be determined with reasonable certainty.

4. On spurious ballots. - Ballots have security features like bar codes, ultra-
violet inks and such other security marks to be able to preserve its integrity
and the PCOS machines were programmed to accept genuine and valid
ballots only. Further, the ballots used in the elections were precinct specific,
meaning, the PCOS machine assigned to a specific precinct will only accept
those ballots designated to such precinct. This follows that the digital
images stored in the CF cards are digital images of genuine, authentic and
valid ballots. In the absence of any evidence proving otherwise, the
Commission will not invalidate a vote cast which will defeat the sovereign
will of the electorate.

5. On over-voting. - It has been the position of the Commission that over-

voting in a certain position will make the vote cast for the position stray but
will not invalidate the entire ballot, so in case of over-voting for the
contested position, such vote shall be considered stray and will not be
credited to any of the contending parties.

6. On rejected ballots. - As correctly observed by [the] court a quo, with all

the security features of the ballot, the PCOS machines will only accept
genuine ballots and will reject it if, inter alia, fake, duplicate, ballots
intended for another precinct, or has been fed an[d] accepted by the
machines already. Bearing in mind the voter's will, rejected ballots can still
be claimed by the parties and be admitted as valid votes, if, upon further
examination, it is found that the ballot is genuine and was inadvertently
rejected by the machine.[6]

After the counting and appreciation of the ballot images in the CF cards of
the appealed clustered precincts, the COMELEC First Division came up
with the following findings:

Clustered Ruling of
Ruling of Votes for Votes for
Precinct COMELEC
Trial Court Saquilayan Maliksi
No. First Division

84 ballots were
Upon examining
declared stray
the digital
because both
96 images of the 235 270
slots for Maliksi
ballots, there was
and Saquilayan
no over-voting.
were shaded.

68 ballots were
Upon examining
declared stray
the digital
because both
61 images of the 230 173
slots for Maliksi
ballots, there was
and Saquilayan
no over-voting.
were shaded.
 133 ballots were
declared stray
because both
slots for Maliksi
Upon examining
and Saquilayan
the digital
were shaded. 2
51 images of the 212 182
ballots were
ballots, there was
declared stray
no over-voting.
because the slots
for Maliksi and
Astillero were
both shaded.

207 ballots were Upon examining

declared stray the digital
because both images of the
slots for Maliksi ballots, there was
and Saquilayan no over-voting. 1
were shaded. 1 ballot was
42 273 231
ballot was rejected by the
declared stray PCOS machine
because the slots but it was clear
for Maliksi and that the intent of
Astillero were the voter was to
both shaded. vote for Maliksi.

Upon examining
the digital
images of the
92 ballots were ballots there was
declared stray no over-voting. 2
because both ballots were
36 154 202
slots for Maliksi rejected by the
and Saquilayan PCOS machine
were shaded. but it was clear
that the intent of
the voters was to
vote for Maliksi.

Upon examining
33 ballots were the digital
declared stray images of the
because both ballots, there was
03 no over-voting. 1 73 89
slots for Maliksi
and Saquilayan ballot was
were shaded. rejected by the
PCOS machine
but it was clear
 that the intent of
the voter was to
vote for
Saquilayan.

172 ballots were

Upon examining
declared stray
the digital
because both
49 images of the 279 265
slots for Maliksi
ballots, there was
and Saquilayan
no over-voting.
were shaded.

Upon examining
the digital
images of the
153 ballots were ballots, there was
declared stray no over-voting. 2
because both ballots were
50 313 275
slots for Maliksi rejected by the
and Saquilayan PCOS machine
were shaded. but it was clear
that the intent of
the voters was to
vote for Maliksi.

Upon examining
155 ballots were
the digital
declared stray
images of the
because both
ballots, there was
slots for Maliksi
no over-voting. 1
and Saquilayan
ballot was
were shaded. 1
34 rejected by the 210 164
ballot was
PCOS machine
declared stray
but it was clear
because the slots
that the intent of
for Maliksi and
the voter was to
Dominguez were
vote for
both shaded.
Saquilayan.

Upon examining
the digital
215 ballots were images of the
declared stray ballots, there was
because both no over-voting. 2
35 286 288
slots for Maliksi ballots were
and Saquilayan rejected by the
were shaded. PCOS machine
but it was clear
that the intent of
 the voters was to
vote for
Saquilayan.

Upon examining
the digital
images of the
216 ballots were
ballots, there was
declared stray
no over-voting. 1
because both
ballot was
146 slots for the 305 271
rejected by the
mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voter was to
vote for Maliksi.

Upon examining
the digital
images of the
ballots, there was
246 ballots were
no over-voting. 1
declared stray
ballot was
because 2 slots
120 rejected by the 309 269
for the mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voter was to
vote for
Saquilayan.

Upon examining
the digital
images of the
ballots, there was
248 ballots were
no over-voting.
declared stray
were shaded. 1
because both
127 ballot was 332 304
slots for Maliksi
rejected by the
and Saquilayan
PCOS machine
were shaded.
but it was clear
that the intent of
the voter was to
vote for Maliksi.

132 ballots were Upon examining

206 declared stray the digital 136 116
because both images of the
slots for Maliksi ballots, there was
 and Saquilayan no over-voting. 3
were shaded. ballots (1 for
Saquilayan, 2 for
Maliksi) were
rejected by the
PCOS machine
but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

253 ballots were

Upon examining
declared stray
the digital
because both
76 images of the 329 251
slots for Maliksi
ballots, there was
and Saquilayan
no over-voting.
were shaded.

Upon examining
the digital
images of the
122 ballots were ballots, there was
declared stray no over-voting. 1
because 2 slots ballot was
202 140 158
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voter was to
vote for Maliksi.

Upon examining
the digital
images of the
ballots, there was
203 ballots were
no over-voting. 2
declared stray
ballots were
because 2 slots
67 rejected by the 246 180
for the mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voter was to
vote for
Saquilayan.

209 168 ballots were Upon examining 220 171

declared stray the digital
 because both images of the
slots for Maliksi ballots, there was
and Saquilayan no over-voting.
were shaded.

181 ballots were

Upon examining
declared stray
the digital
because 2 slots
81 images of the 329 194
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
107 ballots were no over-voting. 2
declared stray ballots were
because 2 slots rejected by the
87 133 147
for the mayoralty PCOS machine
position were but it was clear
shaded. that the intent of
the voters was to
vote for the
candidate of
choice.

Upon examining
the digital
images of the
ballots, there was
no over-voting. 3
189 ballots were ballots (1 for
declared stray Maliksi, 2 for
because 2 slots Saquilayan) were
86 246 239
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

95 ballots were Upon examining

declared stray the digital
91 because 2 slots images of the 137 189
for the mayoralty ballots, there was
position were no over-voting. 3
 shaded. ballots (2 for
Maliksi, 1 for
Saquilayan) were
rejected by the
PCOS machine
but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

Upon examining
the digital
75 ballots were images of the
declared stray ballots, there was
no over-voting. 2
because 2 slots
88 ballots were 142 223
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for Maliksi.
Upon examining
the digital
images of the
113 ballots were ballots, there was
declared stray no over-voting. 1
because 2 slots ballot was
68 243 180
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voter was to
vote for Maliksi.

Upon examining
the digital
images of the
120 ballots were ballots, there was
declared stray no over-voting. 1
because 2 slots ballot was
45 216 211
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voter was to
vote for Maliksi.
 Upon examining
the digital
images of the
ballots, there was
no over-voting. 3
101 ballots were ballots (2 for
declared stray Maliksi, 1 for
because 2 slots Saquilayan) were
43 256 182
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

89 ballots were
Upon examining
declared stray
the digital
because 2 slots
85 images of the 184 213
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
no over-voting. 7
114 ballots were ballots (2 for
declared stray Maliksi, 5 for
because 2 slots Saquilayan) were
74 179 161
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

186 ballots were Upon examining

declared stray the digital
because 2 slots images of the
47 250 226
for the mayoralty ballots, there was
position were no over-voting. 1
shaded. ballot was
rejected by the
 PCOS machine
but it was clear
that the intent of
the voter was to
vote for
Saquilayan.

105 ballots were

Upon examining
declared stray
the digital
because 2 slots
128 images of the 272 223
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

77 ballots were
Upon examining
declared stray
the digital
because 2 slots
107 images of the 127 178
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
no over-voting. 2
220 ballots were ballots (1 for
declared stray Maliksi, 1 for
because 2 slots Saquilayan) were
97 280 299
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

Upon examining
the digital
114 ballots were images of the
declared stray ballots, there was
because 2 slots no over-voting. 1
99 ballot was 243 354
for the mayoralty
position were rejected by the
shaded. PCOS machine
but it was clear
that the intent of
the voter was to
 vote for
Saquilayan.

154 ballots were

Upon examining
declared stray
the digital
because 2 slots
208 images of the 200 163
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
119 ballots were
no over-voting. 2
declared stray
ballots were
because 2 slots
204 rejected by the 269 119
for the mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voters was to
vote for
Saquilayan.

108 ballots were

Upon examining
declared stray
the digital
because 2 slots
201 images of the 143 131
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
338 ballots were images of the
declared stray ballots, there was
no over-voting. 1
because 2 slots
207 ballot was 419 117
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voter was to
vote for Maliksi.
136 ballots were Upon examining
declared stray the digital
because 2 slots images of the
109 173 257
for the mayoralty ballots, there was
position were no over-voting. 1
shaded. ballot was
rejected by the
 PCOS machine
but it was clear
that the intent of
the voter was to
vote for
Saquilayan.

140 ballots were

Upon examining
declared stray
the digital
because 2 slots
131 images of the 297 165
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
98 ballots were ballots, there was
declared stray no over-voting. 1
because 2 slots ballot was
52 118 87
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voter was to
vote for Maliksi.

146 ballots were

Upon examining
declared stray
the digital
because 2 slots
117 images of the 302 265
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
90 ballots were no over-voting. 3
declared stray ballots (2 for
because 2 slots Maliksi, 1 for
100 370 228
for the mayoralty Saquilayan) were
position were rejected by the
shaded. PCOS machine
but it was clear
that the intent of
the voters was to
vote for the
candidate of
 choice.

215 ballots were

Upon examining
declared stray
the digital
because 2 slots
95 images of the 288 270
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
103 ballots were
no over-voting. 1
declared stray
ballot was
because 2 slots
98 rejected by the 218 304
for the mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voter was to
vote for
Saquilayan.

Upon examining
the digital
images of the
257 ballots were ballots, there was
declared stray no over-voting. 2
because 2 slots ballots were
94 270 150
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for Maliksi.

Upon examining
the digital
images of the
105 ballots were ballots, there was
declared stray no over-voting. 2
because 2 slots ballots were
93 205 167
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for Maliksi.
 117 ballots were
Upon examining
declared stray
the digital
because 2 slots
64 images of the 170 162
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

169 ballots were

Upon examining
declared stray
the digital
because 2 slots
44 images of the 273 200
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

262 ballots were

Upon examining
declared stray
the digital
because 2 slots
41 images of the 368 176
for the mayoralty
ballots, there was
position were
no over-voting.
shaded.

Upon examining
the digital
images of the
ballots, there was
no over-voting. 3
156 ballots were ballots (2 for
declared stray Maliksi, 1 for
because 2 slots Saquilayan) were
130 314 170
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

Upon examining
the digital
126 ballots were images of the
declared stray ballots, there was
because 2 slots no over-voting. 3
118 310 248
for the mayoralty ballots (2 for
position were Maliksi, 1 for
shaded. Saquilayan) were
rejected by the
PCOS machine
but it was clear
 that the intent of
the voters was to
vote for the
candidate of
choice.

Upon examining
the digital
images of the
ballots, there was
127 ballots were
no over-voting. 1
declared stray
ballot was
because 2 slots
56 rejected by the 202 223
for the mayoralty
PCOS machine
position were
but it was clear
shaded.
that the intent of
the voter was to
vote for
Saquilayan.

Upon examining
the digital
images of the
ballots, there was
no over-voting. 3
153 ballots were ballots (1 for
declared stray Maliksi, 2 for
because 2 slots Saquilayan) were
205 185 242
for the mayoralty rejected by the
position were PCOS machine
shaded. but it was clear
that the intent of
the voters was to
vote for the
candidate of
choice.

The COMELEC First Division found that Maliksi obtained a total of 40,092
votes, broken down as follows: (a) 29,170 votes in the clustered precincts
not appealed as per statement of votes by precinct, and (b) 10,922 votes in
the appealed clustered precincts. On the other hand, Saquilayan obtained a
total of 48,521 votes, broken down as follows: (a) 35,908 votes in the
clustered precincts not appealed as per statement of votes by precinct, and
(b) 12,613 votes obtained in the appealed clustered precincts. Saquilayan
won over Maliksi by 8,429 votes. Thus, in a Resolution promulgated on 15
August 2012, the COMELEC First Division nullified the trial court's
decision and declared Saquilayan as the duly-elected Municipal Mayor of
Imus, Cavite. The COMELEC First Division noted that Maliksi attached a
photocopy of an official ballot to his election protest. The COMELEC First
Division stated that unless one of the clustered precincts had a
photocopying machine, it could only mean that an official ballot was taken
out of the polling place to be photocopied, in violation of Section 30(a) of
COMELEC Resolution No. 8786.[7] The dispositive portion of the 15 August
2012 Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, to:

1. NULLIFY the pronouncement of the lower court that protestant-appellee

EMMANUEL L. MALIKSI is the duly-elected Municipal Mayor of Imus,
Cavite and HEREBY DECLARES HOMER T. SAQUILAYAN as the duly-
elected Municipal Mayor of the above-mentioned municipality;

2. Further, the Law Department is hereby DIRECTED:

i. To conduct an investigation as to who were responsible for the tampering

of the ballot boxes for purposes of filing the appropriate information for
violation of election laws; and

ii. To conduct an investigation as to possible violation of election laws and

Comelec Resolutions by herein protestant-appellee EMMANUEL L.
MALIKSI as to how he was able to secure a photocopy of the official ballot
which he attached in his Election Protest.

SO ORDERED.[8]

Maliksi filed a motion for reconsideration of the COMELEC First Division's

Resolution and for the voluntary inhibition of Commissioners Sarmiento,
Velasco, and Lim from further acting on the case.

The Resolution of the COMELEC En Banc

In its 14 September 2012 Resolution, the COMELEC En Banc denied

Maliksi's motion for reconsideration and affirmed the 15 August 2012
Resolution of the COMELEC First Division.

The COMELEC En Banc ruled that the COMELEC First Division did not err
in ordering the decryption, printing, and examination of the ballot images
in the CF cards instead of recounting the physical ballots. The COMELEC
En Banc stated that when the case was elevated to it on appeal, it
immediately noted an "unprecedented number of double-votes involving
8,387 ballots exclusively affecting the position of Mayor and specifically
affecting the ballots for Saquilayan."[9] The COMELEC En Banc further
noted:

x x x. Worth noting also is that these 8,387 ballots all came from 53
clustered precincts specifically pinpointed by Maliksi as his pilot precincts
(which is 20% of the total precincts he protested) thereby affecting a total of
33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election
day, too specific to be random and too precise to be accidental which leaves
a reasonable mind no other conclusion except that those 8,387 cases of
double-shading were purposely machinated. These dubious and highly
suspicious circumstances left us with no other option but to dispense with
the physical ballots and resort to their digital images. To recount the
tampered ballots will only yield us tampered results defeating the point of
this appeal.[10]

The COMELEC En Banc also ruled that it is free to adopt procedures that
will ensure the speedy disposition of its cases as long as the parties are
amply heard on their opposing claims. The COMELEC En Banc ruled that
the decryption, printing, and examination of the ballot images in the CF
cards are not without basis since a Division, through its Presiding
Commissioner, may take such measures as he may deem proper to resolve
cases pending before it. The COMELEC En Banc ruled that Maliksi was not
denied due process because he never questioned the Order of decryption by
the COMELEC First Division nor did he raise any objection in any of his
pleadings. Further, the ballot images are not mere secondary images, as
Maliksi claimed. The digital images of the physical ballots, which are
instantaneously written in the CF cards by the PCOS[11] machines the
moment the ballots are read and counted, are equivalent to the original for
the purpose of the best evidence rule. The COMELEC En Banc accorded
higher evidentiary value to the ballot images because their integrity are
more secure for the following reasons:

(1) the digital images are encrypted to prevent unauthorized alteration or

access;

(2) the ballot images cannot be decrypted or in anyway accessed without

the necessary decryption key;

(3) the ballot images may only be decrypted using a special system designed
by the COMELEC and not by any ordinary operating system or computer;
(4) the CF cards storing the digital images of all the ballots used in the 10
May 2010 elections are kept in a secured facility within the Commission to
prevent unauthorized access.[12]

The COMELEC En Banc further ruled that the result of the revision
proceedings in the trial court could not be admitted because of the finding
by the COMELEC First Division that the recounted ballots were tampered.
The COMELEC En Banc explained:

The allegation of post-election fraud of Saquilayan was in fact confirmed by

the First Division when upon examination of the scanned digital images of
all the double-shaded ballots, they were found to bear no traces of double-
shading instead they contain clear and unambiguous votes for Saquilayan.
This finding of the First Division proves that double-votes did not exist
when the PCOS machines counted them on election day, [w]hich in turn
proves that the ballots recounted and admitted by the trial court
were tampered and were clear products of post-election fraud.
Under these circumstances, the doctrines in Rosal v.
COMELEC and Varias v. COMELEC edict that the tampered
revision result which was the basis of the appealed decision
cannot be admitted and cannot be used to overturn the the
official count.[13] (Emphasis in the original; citations omitted)

Finally, the COMELEC En Banc ruled that Maliksi had no basis to call for
the inhibition of Commissioners Sarmiento and Velasco. Commissioner
Lim voluntarily inhibited himself from the case.

The dispositive portion of the COMELEC En Banc's 14 September 2012

Resolution reads:

WHEREFORE, premises considered, the MOTION FOR

RECONSIDERATION of Protestant-Appellee EMMANUEL L. MALIKSI is
hereby DENIED for lack of merit. Consequently, we are AFFIRMING the
August 15, 2012 Resolution of the First Division NULLIFYING the
November 15, 2011 Decision of the Regional Trial Court, Branch 22 of Imus,
Cavite.

SO ORDERED.[14]

Hence, Maliksi filed the present petition before this Court.

In a Resolution dated 11 October 2012, this Court issued a temporary
restraining order directing the COMELEC En Banc to desist from
implementing its 14 September 2012 Resolution.

The Issues

The overriding issue in this petition for certiorari is whether the COMELEC
En Banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing its assailed Resolution dated 14 September 2012.
In resolving this issue, we shall examine:

whether Maliksi was deprived of due process when the COMELEC

(1) First Division ordered on appeal the decryption, printing, and
examination of the ballot images in the CF cards;

whether the ballot images in the CF cards are mere secondary

(2) evidence that should only be used when the physical ballots are not
available;

whether the issue of tampering of ballots and ballot boxes was

(3)
belatedly raised by Saquilayan; and

whether there were grounds for the inhibition of Commissioners

(4)
Sarmiento and Velasco.

The Ruling of this Court

We dismiss the petition.

The Alleged Violation of Due Process

Maliksi alleged that he was denied due process when the COMELEC First
Division directed the decryption, printing, and examination of the ballot
images in the CF cards for the first time on appeal without notice to him,
thus depriving him of his right to be present and observe the decryption
proceedings.

The records point to the contrary.

In a Motion dated 21 March 2011 filed before the trial court,[15] Saquilayan
moved for the printing of the images of the ballots in the CF cards of the
contested clustered precincts. Thus, it cannot be said that Saquilayan asked
for decryption of the ballot images for the first time only on appeal.
Saquilayan had called the attention of the trial court to the unusually large
number of double-shaded ballots affecting only the position of Mayor,
giving rise to a strong suspicion of tampering of the ballots and ballot
boxes. However, the trial court did not immediately act on his motion, as
shown by Saquilayan's Omnibus Motion To Resolve and For Issuance of
Order[16] dated 14 April 2011.

In an Omnibus Order[17] dated 3 May 2011, the trial court granted

Saquilayan's motion for the printing of the ballot images in the CF cards.
The trial court gave Saquilayan a period of 30 days within which to
accomplish the printing of the ballot images. Saquilayan received a copy of
the Omnibus Order on 10 May 2011. On 11 May 2011, he sent a letter to the
COMELEC requesting it to forward at the soonest time the CF cards of the
protested precincts to the COMELEC Election Records and Statistics
Department (ERSD) to enable the decrypting and printing of the ballot
images. It turned out that the CF cards were still with the trial court. Thus,
in a Manifestation and Request[18] dated 20 May 2011, Saquilayan asked the
trial court to forward the CF cards of the protested precincts to the ERSD to
enable the COMELEC to decrypt and print the ballot images.

In an Order[19] dated 17 June 2011, the trial court noted that the ERSD
already specified the main and back-up CF cards that were used in the 10
May 2010 National and Local Elections in Imus, Cavite and the decryption
and copying of the ballot images was scheduled to start on 21 June 2011.
The trial court then requested the ERSD to specify the procedure that the
ERSD would undertake for the decryption of the ballot images. In a
letter[20] dated 20 June 2011, Maliksi wrote the ERSD requesting that
further proceedings be deferred and held in abeyance in deference to the 17
June 2011 Order of the trial court requiring the ERSD to specify the
procedure it would undertake for the decryption.

Thereafter, Maliksi filed a Motion to Consider That Period Has Lapsed to

Print Ballot's Picture Images,[21] alleging that Saquilayan was only given a
maximum of 30 days within which to accomplish the printing of the ballot
images. Maliksi alleged that the period, which was until 22 June 2011, had
lapsed and Saquilayan should be considered barred from having access to
the electronic data in the COMELEC's back-up server to print the ballot
images in the CF cards. The trial court granted Maliksi's motion in its Order
dated 3 August 2011.[22]The trial court stated that Saquilayan should have
included in his motion to have access to the electronic data a request for the
trial court to turn over to the COMELEC the CF cards in its possession. As it
turned out, the delay in the turn over of the CF cards likewise delayed the
printing of the ballot images in the CF cards.

It is clear from the foregoing events that the delay in the printing of the
ballot images could not be attributed to Saquilayan alone. In its 17 June
2011 Order, the trial court set a conference on 27 June 2011 upon Maliksi's
motion to request the ERSD to specify the procedure it would undertake in
decrypting the CF cards. Maliksi then requested for the deferment of the
printing of the ballot images in his 20 June 2011 letter to ERSD. However,
during the 27 June 2011 hearing, Maliksi's counsel filed in open court his
Motion to Consider That Period Has Lapsed to Print Ballot's Picture
Images. The trial court acted on the motion by requiring Saguilayan's
counsel to comment within five days. The original reason for the hearing,
which was for ERSD to specify the procedure it would undertake in
decrypting the CF cards, was not even taken up. The trial court eventually
granted Maliksi's motion and declared that the period given to Saquilayan
had lapsed. The failure of the trial court to turn over the CF cards to the
ERSD, as well as the move of Maliksi for the ERSD to specify the procedure
in decrypting the CF cards, contributed significantly to the delay in the
printing of the ballot images.

The records also showed that Maliksi was aware of the decryption, printing,
and examination of the ballot images by the COMELEC First Division. The
COMELEC First Division issued an Order[23] dated 28 March 2012 directing
Saquilayan to deposit the required amount for expenses for the supplies,
honoraria, and fee for the decryption of the CF cards, and a copy of the
Order was personally delivered to Maliksi's counsel.[24] Maliksi's counsel
was likewise given a copy of Saquilayan's Manifestation of Compliance with
the 28 March 2012 Order.[25] In an Order[26] dated 17 April 2012, the
COMELEC First Division directed Saquilayan to deposit an additional
amount for expenses for the printing of additional ballot images from four
clustered precincts, and a copy of the Order was again personally delivered
to Maliksi's counsel.[27] The decryption took weeks to finish.

Clearly, Maliksi was not denied due process. He received notices of the
decryption, printing, and examination of the ballot images by the
COMELEC First Division. In addition, Maliksi raised his objections to the
decryption in his motion for reconsideration before the COMELEC En
Banc. The Court has ruled:

x x x. The essence of due process, we have consistently held, is simply the

opportunity to be heard; as applied to administrative proceedings, due
process is the opportunity to explain one's side or the opportunity to seek a
reconsideration of the action or ruling complained of. A formal or trial-type
hearing is not at all times and in all instances essential. The requirement is
satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy at hand. x x x.[28]

There is no denial of due process where there is opportunity to be heard,

either through oral arguments or pleadings.[29] It is settled that
"opportunity to be heard" does not only mean oral arguments in court but
also written arguments through pleadings.[30] Thus, the fact that a party
was heard on his motion for reconsideration negates any violation of the
right to due process.[31] The Court has ruled that denial of due process
cannot be invoked where a party was given the chance to be heard on his
motion for reconsideration.[32]

Evidentiary Value of the Digital Ballot Images

Maliksi assailed the use by the COMELEC First Division of the ballot
images in the CF cards. He alleged that the best and most conclusive
evidence are the physical ballots themselves, and when they cannot be
produced or when they are not available, the election returns would be the
best evidence of the votes cast.

We do not agree. We have already ruled that the ballot images in the CF
cards, as well as the printouts of such images, are the functional equivalent
of the official physical ballots filled up by the voters, and may be used in an
election protest.

In the recent consolidated cases of Vinzons-Chato v. House of

Representatives Electoral Tribunal and Panotes and Panotes v. House of
Representatives Electoral Tribunal and Vinzons-Chato,[33] the Court ruled
that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise 'official ballots' that faithfully capture in electronic form
the votes cast by the voter, as defined by Section 2 (3) of R.A. No.
9369."[34] The Court declared that the printouts of the ballot images in the
CF cards "are the functional equivalent of the paper ballots filled out by the
voters and, thus, may be used for purposes of revision of votes in an
electoral protest." In short, both the ballot images in the CF cards and the
printouts of such images have the same evidentiary value as the official
physical ballots filled up by the voters.

In Vinzons-Chato and Panotes, the Court explained in length:

Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized
as the "paper ballot, whether printed or generated by the technology
applied, that faithfully captures or represents the votes cast by a voter
recorded or to be recorded in electronic form."

An automated election system, or AES, is a system using appropriate

technology which has been demonstrated in the voting, counting,
consolidating, canvassing, and transmission of election result, and other
electoral process. There are two types of AES identified under R.A. No.
9369: (1) paper-based election system; and (2) direct recording electronic
system. A paper-based election system, such as the one adopted during the
May 10, 2010 elections, is the type of AES that "use paper ballots, records
and counts votes, tabulates, consolidates/canvasses and transmits
electronically the results of the vote count. On the other hand, direct
recording electronic election system "uses electronic ballots, records, votes
by means of a ballot display provided with mechanical or electro-optical
component that can be activated by the voter, processes data by means of
computer programs, record voting data and ballot images, and transmits
voting results electronically.

As earlier stated, the May 10, 2010 elections used a paper-based technology
that allowed voters to fill out an official paper ballot by shading the oval
opposite the names of their chosen candidates. Each voter was then
required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously,
meaning, in just one pass. As established during the required demo tests,
the system captured the images of the ballots in encrypted format which,
when decrypted for verification, were found to be digitized representations
of the ballots cast.

We agree, therefore, with both the HRET and Panotes that the picture
images of the ballots, as scanned and recorded by the PCOS, are likewise
"official ballots" that faithfully captures (sic) in electronic form the votes
cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper ballots filled out
by the voters and, thus, may be used for purposes of revision of votes in an
electoral protest.

It bears stressing that the digital images of the ballots captured by the
PCOS machine are stored in an encrypted format in the CF cards.
"Encryption is the process of encoding messages (or information) in such a
way that eavesdroppers or hackers cannot read it, but that authorized
parties can. In an encryption scheme, the message or information (referred
to as plaintext) is encrypted using an encryption algorithm, turning it into
an unreadable ciphertext. This is usually done with the use of an encryption
key, which specifies how the message is to be encoded. Any adversary that
can see the ciphertext, should not be able to determine anything about the
original message. An authorized party, however, is able to decode the
ciphertext using a decryption algorithm, that usually requires a secret
decryption key, that adversaries do not have access to."[35] (Citations
omitted)

Hence, the COMELEC First Division did not gravely abuse its discretion in
using the ballot images in the CF cards.

Maliksi further alleged that the ballot images in the CF cards should merely
be considered as secondary evidence and should be resorted to only when
the physical ballots are not available or could not be produced.

Maliksi is mistaken.

Rule 4 of A.M. No. 01-7-01-SC[36] is clear on this issue. It states:

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 by the same impression as the
original, or from the same matrix, or by mechanical or electronic 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.

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. (Emphasis supplied)

The ballot images, which are digital, are electronically generated and
written in the CF cards when the ballots are fed into the PCOS machine.
The ballot images are the counterparts produced by electronic recording
which accurately reproduce the original, and thus are the equivalent of the
original. As pointed out by the COMELEC, "[t]he digital images of the
physical ballots are electronically and instantaneously generated by the
PCOS machines once the physical ballots are fed into and read by the
machines."[37] Hence, the ballot images are not secondary evidence. The
official physical ballots and the ballot images in the CF cards are both
original documents. The ballot images in the CF cards have the same
evidentiary weight as the official physical ballots.

The Court notes that Maliksi did not raise any allegation that the use of the
ballot images falls under any of the exceptions under Section 2, Rule 4 of
A.M. No. 01-7-01-SC that would make their use inadmissible as original
ballots.

Tampering of Ballots and Ballot Boxes

Maliksi alleged that there was no allegation of ballot and ballot box
tampering before the trial court. He further alleged that the COMELEC
First Division did not explain how it came to the conclusion that the
integrity of the ballot boxes had been compromised or that there was ballot
tampering.

The records reveal otherwise.

Contrary to Maliksi's claim, Saquilayan questioned the integrity of the

ballot boxes and election paraphernalia before the trial court. In an Urgent
Manifestation of Concern and Objections[38] dated 8 June 2010, Saquilayan
manifested his serious concern regarding the integrity of the ballot boxes
and election paraphernalia which remained under the effective control of
Maliksi. Saquilayan informed the trial court that his watchers were being
limited to the outside of the building where the ballot boxes and election
paraphernalia were kept, thus preventing them from looking over the
security of the ballot boxes and election paraphernalia. In the same
manifestation, Saquilayan categorically stated that he was "questioning the
integrity of the ballot boxes and other election
paraphernalia."[39] Saquilayan also alleged in the same manifestation that
the trial court could have prescribed a procedure that would allow his
watchers to view the ballot boxes and other election paraphernalia that
"would have prevented to some degree the tampering of the boxes and
election material[s]."[40] Clearly, Saquilayan raised before the trial court the
issue of tampering of the ballots and ballot boxes.

Further, the COMELEC En Banc clarified in its Comment[41] that the

COMELEC First Division ordered the decryption, printing, and
examination of the digital images because the COMELEC First Division
"discovered upon inspection that the integrity of the ballots themselves was
compromised and that the ballot boxes were tampered."[42] The COMELEC
First Division properly invoked Section 6(f), Rule 2 of the COMELEC Rules
of Procedure which states:

Sec. 6. Powers and Duties of the Presiding Commissioner. - The powers and
duties of the Presiding Commissioner of a Division when discharging its
functions in cases pending before the Division shall be as follows:
xxxx

(f) To take such other measures as he may deem proper upon consultation
with the other members of the Division.

In this case, the COMELEC En Banc categorically stated that the recounting
of the physical ballots in the revision before the trial court yielded dubious
results. The COMELEC En Banc stressed:

x x x. Worth noting also is that these 8,387 ballots all came from
53 clustered precincts specifically pinpointed by Maliksi as his
pilot precincts (which is 20% of the total precincts he protested)
thereby affecting a total of 33.38% or more than one-third (1/3)
of the total ballots cast in those precincts. We find this too
massive to have not been detected on election day, too specific to
be random and too precise to be to be accidental which leaves a
reasonable mind no other conclusion except that those 8,387
cases of double-shading were purposely machinated. These
dubious and highly suspicious circumstances left us with no
other option but to dispense with the physical ballots and resort
to their digital images. To recount the tampered ballots will only
yield us tampered results defeating the point of this
appeal.[43] (Emphasis supplied)

The tampering of the ballots and ballot boxes had been fully established
and it justified the decryption of the ballot images in the CF cards.

Inhibition of Commissioners Sarmiento and Velasco

Maliksi alleged that the COMELEC En Banc gravely abused its discretion
when it included in the body of its 14 September 2012 Resolution a
discussion of his motion for the inhibition of Commissioners Sarmiento
and Velasco instead of leaving it to their own discretion and prerogative.

We see nothing wrong with the inclusion of the matter of inhibition in the
Resolution. Commissioners Sarmiento and Velasco signed the Resolution
which means they concurred with the COMELEC En Banc's ruling that the
motion for their inhibition had no basis. Maliksi himself pointed out that
the matter of inhibition is better left to the Commissioner's discretion and
thus, he could not impose the inhibition of Commissioners Sarmiento and
Velasco just because Commissioner Lim inhibited himself from the case.
Commissioners Sarmiento and Velasco are not even required, although
they are neither prohibited, to individually explain their vote or to
individually answer the motion for inhibition, like what Commissioner Lim
did. In this case, the COMELEC En Banc ruled on the motion for inhibition.
Moreover, the dissent of Commissioners Lim and Velasco in SPR (AE) No.
106-2011 is not a prejudgment of EAC (AE) No. A-22-2011. While the two
cases involved the same parties, the only issue in SPR (AE) No. 106-2011 is
the issuance of a temporary restraining order to stop the execution of the
trial court's decision pending appeal. Contrary to Maliksi's allegation, the
ruling in SPR (AE) No. 106-2011 on the temporary restraining order is not a
confirmation of the validity of the decision subject of the appeal in EAC
(AE) No. A-22-2011. In the same manner, the fact that Commissioner Elias
R. Yusoph did not take part in SPR (AE) No. 106-2011 does not mean he
should also take no part in EAC (AE) No. A-22-2011 considering that they
involve different issues.

In sum, we find no grave abuse of discretion on the part of the COMELEC

En Banc when it issued the assailed Resolution of 14 September 2012.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution

promulgated on 14 September 2012 by the Commission on Elections En
Banc which affirmed the 15 August 2012 Resolution of the Commission on
Elections First Division declaring HOMER T. SAQUILAYAN as the duly-
elected Municipal Mayor of Imus, Cavite. We LIFT the temporary
restraining order issued on 11 October 2012. This decision
is IMMEDIATELY EXECUTORY considering that the remainder of
Saquilayan's term of office is only less than five (5) months.

SO ORDERED.

SECOND DIVISION

[G.R. No. 162704. November 19, 2004]

MEMORIA G. ENCINAS and ADOLFO A. BALBOA, petitioners, vs.

NATIONAL BOOKSTORE, INC., respondent.

DECISION
TINGA, J.:

Two certificates of title in the names of two different persons cover one
and the same piece of land. The question in this case is who is the rightful
owner of the property.
The land in question is located at the corner of Epifanio de los Santos
Avenue (EDSA) and Aurora Boulevard, Quezon City. It was originally part of a
larger piece of land designated as Lot No. 4-B-2-B of the subdivision plan
Psd-20172,[1] being a portion of Lot 4-B-2 of Plan SWO-16797, per original
survey for Valentin Afable, et. al. dated March 3, 1944. Lot No. 4-B-2-A of said
plan was in the name of Valentin Afable, while Lot No. 4-B-2-B of the same
plan was in the name of Eugenio Evangelista. Lot 4-B-2-B had an area of
8,371 square meters.[2]
Lot 4-B-2-B was later recorded in the names of the Heirs[3] of one Simeon
Evangelista under Transfer Certificate of Title (TCT) No. T-219636, issued on
June 22, 1976.[4] The title indicated that the land was originally registered
under Act No. 496 on October 3, 1927, in the registration book of the Register
of Deeds of Rizal, Vol. T-51, Page 218, pursuant to Decree No. 917, G.L.R.O.
Record No. 197.[5]
On December 4, 1978, the Heirs of Simeon Evangelista executed a deed
of sale with mortgage of Lot 4-B-2-B in favor of the spouses Nereo and Gloria
Paculdo, resulting in the cancellation of TCT No. 219636 and the issuance of
TCT No. 251175[6] in the names of the Paculdo spouses, with the mortgage
lien annotated thereon. For failure of the Paculdo spouses to pay their
obligation under the mortgage contract, the mortgage was extra-judicially
foreclosed and the land sold at public auction to the Heirs of Simeon
Evangelista. On August 7, 1981, on the basis of the Sheriffs Certificate of
Sale[7] executed in favor of the Heirs, TCT No. 251175 of the Paculdo spouses
was cancelled and TCT No. 279654[8] was issued in the name of the Heirs[9] of
Simeon Evangelista.
In 1982, an unsegregated portion measuring 906 square meters of Lot 4-
B-2-B was expropriated by the Government for the widening of Aurora
Boulevard. The unsegregated portion was designated as Lot 4-B-2-B-1. The
remaining portion of 7,465 square meters was designated as Lot 4-B-2-B-2,
the subject land. On May 23, 1983, the Heirs of Simeon Evangelista sold the
subject land, to respondent National Bookstore Inc. through a Deed of Sale
with Real Estate Mortgage.[10] Respondent took possession of the subject
land, declared the same for taxation purposes[11] and was issued TCT No.
300861[12] covering the subject land.
In 1994, petitioner Memoria G. Encinas, through her attorney-in-fact and
herein co-petitioner Adolfo Balboa, filed a Petition[13] for the administrative
reconstitution of her title, TCT No. 179854, which was supposedly burned in
the fire that razed the Registry of Deeds of Quezon City on June 11, 1988. To
support her petition, she presented a copy of her Tax Declaration No. B-040-
01639[14] for the year 1985 allegedly covering the subject property and a
certification[15] from the Acting Chief of the Revenue Collection Office of the
Quezon City Treasurer stating that the real property taxes on the said property
have been paid up to 1994 under Tax Declaration No. 1639. On October 20,
1994, the Administrator of the Land Registration Authority (LRA), after
investigation and verification that the titles to be reconstituted do not overlap
other properties, issued an order[16] reconstituting several transfer certificates
of title, including petitioner Encinas TCT No. 179854. Pursuant to the order,
the Registry of Deeds of Quezon City issued TCT No. RT-103022[17] in
petitioner Encinas name on November 9, 1994.
Petitioner offered the property covered by the reconstituted title for sale to
Alfredo C. Ramos, the president of respondent. It was then that respondent
discovered that its TCT No. 300861 and petitioners TCT No. RT-103022
referred to the same property, Lot No. 4-B-2-B-2.
On July 17, 1997, after conducting an investigation on titles alleged to
have been illegally reconstituted, the LRA Reconstitution Officer issued a
Supplemental Order dated July 17, 1997 and an Order dated June 8, 1999
which set aside the previous order of reconstitution dated October 20, 1994,
and in particular, directed the exclusion of the reconstitution of the original of
TCT No. T-179854.[18]
On February 28, 1996, respondent as plaintiff filed an action for quieting of
title before the Regional Trial Court of Quezon City, Branch 215, alleging that
it was the true and lawful owner of Lot 4-B-2-B-2 as evidenced by its TCT No.
300861. The complaint was docketed as Civil Case No. Q-96-26716.
Petitioner Encinas as defendant denied respondents allegations and
stubbornly claimed that she was the real and absolute owner in fee simple of
the subject property and neither she nor her predecessor-in-interest ever sold
the property to anybody. She relied on the legality and regularity of the
reconstitution of her title to the subject property.[19]
On June 21, 1999, the RTC decided in favor of respondent. The trial court
declared that while a reconstituted title has a prima facie appearance of
legality, the reconstitution of said title is subject to the proviso that no other
certificate of title covering the same parcel of land exists in the records of the
registry. A certificate of title considered lost or destroyed, if found or
recovered, prevails over the reconstituted title. In Civil Case No. Q-96-26716,
the original transfer certificate of title covering the property, TCT No. 300861
in respondents name, is on file with the Registry of Deeds of Quezon City and
is one of the titles which were not burned in the fire of June 1988. The owners
duplicate copy of the title is intact and in respondents possession.
Furthermore, respondent was able to show how it acquired the property from
its immediate predecessors and was able to account for the previous major
transactions involving the subject property until ownership thereof was
transferred to respondent.
Petitioner Encinas, on the other hand, failed to present any evidence to
show how she acquired ownership of the property. She merely alleged that
she was the owner in fee simple. To support her claim of ownership, she
presented a tax declaration covering the property. But it was shown that said
tax declaration was tampered with and apparently falsified. Petitioner Encinas
relied mainly on the presumption of validity of her reconstituted title. However,
as the trial court noted, the LRA Administrator eventually issued the
Supplemental Order of July 17, 1997 and Order of June 8, 1999 excluding
petitioner Encinas title from the reconstitution order. To the trial court, not only
was respondent able to prove its ownership of the subject property with
preponderant evidence, but the case had already become moot and academic
by virtue of the LRAs cancellation of petitioner Encinas reconstituted title.
Hence, it upheld respondents title to the subject property and ordered the
cancellation of petitioner Encinas reconstituted title.[20]
Petitioners promptly moved for reconsideration. On November 10, 1999,
the trial court granted the same and set aside its earlier Decision.[21] In a
complete reversal of its previous ruling, the trial court upheld the validity of
petitioner Encinas title. According to the trial court, petitioner Encinas title,
TCT No. 179854, was registered and issued on August 25, 1972 which should
have served as constructive notice to respondent whose title, TCT No.
300861, was issued only on June 6, 1983. The trial court also pointed out that
there is a manifest defect in respondents title as to its origin: respondents title
is a derivative of an original certificate of title issued pursuant to Decree No.
917, GLRO Record No. 197; however, said GLRO Record No. 197 referred to
a piece of land located in Bataan, not Quezon City. Respondents title referred
to a piece of land in Bataan and not the subject property. Hence, in
the Order dated November 10, 1999, the RTC nullified respondents title, and
declared petitioner Encinas reconstituted title valid.
Respondent appealed the RTC Order of November 10, 1999 to the Court
of Appeals. On October 27, 2003, the Court of Appeals reversed and set
aside the RTC Order and reinstated the RTC Decision of June 21,
1999.[22] The appellate court found that the antecedents leading to
respondents acquisition of the property were clearly shown in the records and
even annotated in its TCT No. 300861. On the other hand, petitioner Encinas
failed to describe the circumstances of her ownership or possession of the
land and to identify her predecessor-in-interest or the manner by which she
acquired the property. Petitioners again raised the argument that the
erroneous entry of the GLRO record number in respondents title is a fatal
defect which proves the titles invalid source. However, the appellate court
concluded that based on the testimony of petitioners own witnesses,[23] the
variance was merely a typographical or clerical error. The same witnesses
testified that in cases of such clerical errors, it is the technical description
which controls. The technical description in respondents title described the
subject property, Lot 4-B-2-B-2, located in Quezon City.
On the other hand, the technical description in petitioner Encinas title
refers to a different parcel of land. Her title describes a parcel of land which is
a portion of Lot 2-E-2 of plan SWO-16797, certainly not the subject property.
The Court of Appeals also observed that respondent was able to present
tax declarations and real property tax bill receipts in its name and in the name
of its immediate predecessor, the Evangelista clan. While petitioners also
presented a tax declaration and certification from the Revenue Collection
Office of Quezon City, upon closer scrutiny, said documents showed that
petitioners had declared Lot 4-B-2-B-1 for taxation purposes, and not Lot 4-B-
2-B-2, the property subject of this case.[24] It should be remembered that Lot 4-
B-2-B-1 refers to the portion which was expropriated by the government.
Petitioners timely filed a Motion for Reconsideration[25] of the appellate
courts decision but this was denied on March 12, 2004.[26] Hence, they filed
this Petition for Review on Certiorari, alleging that the Court of Appeals
committed grave abuse of discretion amounting to lack or in excess of
jurisdiction in upholding the validity of [respondents] purported TCT No.
300861 notwithstanding the abundance of competent evidence demonstrating
positively that said title is spurious and fake. Petitioners insist that the
variance in the entries in respondents TCT No. 300186 and GLRO Record
No. 197 is not a mere typographical or clerical error, but instead an indication
of the fraudulent nature of respondents title.
Petitioners submit that respondents evidence failed to show that it proved
its ownership of the subject property. In particular, petitioners take issue with
the Court of Appeals alleged disregard of its evidence which allegedly
demonstrates that respondents title to the subject property is fake and
spurious. Petitioners harp on the supposed incongruity between the entries in
the GLRO Record Numbers in respondents and petitioners respective titles to
the property.
Respondent, in its Comment, seeks to have the Petition dismissed on the
ground that it raises only questions of fact which this Court cannot entertain
via a petition for certiorari.[27]
Indeed, this Court has held that factual findings of the trial court, when
adopted and confirmed by the Court of Appeals, are final and conclusive and
may not be reviewed on appeal. However, there are several exceptions to the
rule, namely: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the finding
is grounded entirely on speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court; (8)
when the findings of fact are conclusions without citation of specific evidence
on which they are based; (9) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion; and (10) when the findings of
fact of the Court of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record. [28]
This case falls under one of the exceptions, as the factual conclusions of
the trial court and the appellate court are in conflict with each other. Hence,
although the petition raises questions of fact since it entails a review of the
evidence at hand, it may be entertained by this Court.
The issue before this Court is whether petitioners were able to discharge
their burden of proving the superiority of their title over the title of respondent.
The Court of Appeals upheld the initial Decision of the RTC and found the
quantum of evidence presented by petitioners insufficient. A review of the
evidence reveals no compelling reason to reverse the appellate courts ruling.
In civil cases, the party having the burden of proof must establish his case
by a preponderance of evidence. Preponderance of evidence is the weight,
credit, and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term greater weight of the evidence or
greater weight of the credible evidence. Preponderance of evidence is a
phrase which, in the last analysis, means probability of the truth. It is evidence
which is more convincing to the court as worthy of belief than that which is
offered in opposition thereto.29
Respondent as plaintiff was able to overcome the burden of proof and
prove by preponderant evidence that it has a superior right and title to the
subject property. In contrast, petitioners as defendants seem to rely only on
the alleged weakness of respondents evidence, without asserting any proof
other than her reconstituted title to the subject property.
From the evidence, respondent derived its title from the title of its vendor,
the Heirs of Simeon Evangelista, via a deed of sale. The Heirs obtained their
title from their predecessor-in-interest Simeon Evangelista. Prior to the
transfer of the title to respondent, the Heirs had sold the subject property to
the Paculdo spouses in whose names another title was issued. However, the
Heirs were able to reclaim the property upon the failure of the Paculdo
spouses to pay their mortgage obligation on the property. All these
transactions involving the property are well-documented.[29] From the time
respondent obtained the property, it protected its interest therein by fencing off
the property and designating security guards around its
perimeter. Respondent also exercised its obligation as owner by paying real
[30]

property taxes on the property it had acquired, evidenced by tax declarations

issued in its name by the Quezon City Assessors Office.[31]
In contrast, petitioner Encinas asserts her right to the subject property via
a reconstituted title, also presented in evidence. However, other than the
allegation in her Answer to respondents Complaint (for quieting of title) that
she is the owner in fee simple of the subject property, petitioner Encinas failed
to disclose before any of the judicial levels how she was able to acquire title to
the property. The trial court had intimated during the hearings that to get to the
truth of the matter, it is important to trace the origins or source of the titles of
the properties.[32] Counsel for petitioners had manifested time and again that
petitioner Encinas herself, who was then in Detroit, Michigan, would be
presented to testify on the acquisition of the property,[33] but the hearings
terminated without petitioner Encinas ever making an appearance. Neither
was her co-petitioner and attorney-in-fact Adolfo A. Balboa able to shed light
on the matter, as he clearly had no knowledge of the circumstances of
petitioner Encinas acquisition of the property.[34]
Petitioners also cannot rely on Tax Declaration No. B-040-01639 allegedly
issued in petitioner Encinas name, since a tax declaration with the same
number was also issued in the name of respondent. Indeed, according to
petitioners witness, Dante M. Veloria, Assistant City Assessor of Quezon City,
there are many cases of duplication of tax declaration numbers in their office,
and such duplication does not necessarily mean that the duplicate tax
declaration is spurious. The Assessors Office rectifies the duplication by
adjusting the tax declaration number and annotating the correction at the back
of the tax declaration and notifying the persons concerned. The same witness
noted that trouble arises when such duplications are not corrected, as in this
case.
Instead of presenting evidence to prove the superiority of petitioner
Encinas title, petitioners rely only on the apparent weakness of respondents
title, that is, the alleged fatal defect in GLRO Record No. 197 perpetuated in
the titles of respondent and its predecessors-in-interest.
Petitioners cite Lorenzana Food Corporation v. Court of Appeals[35] in
arguing that these errors cannot simply be qualified as mere typographical
errors. However, the facts of the cited case differ from the case at bar, and the
ruling thereon cannot be blindly applied to this case.
The Lorenzana case involved a large tract of land traversed by a railroad
and divided into two parcels designated as Lots 1 and 2, both parcels covered
by a reconstituted title Original Certificate of Title (OCT) No. (1020) RO-9. A
separate OCT for Lot 1, OCT No. (1898) RO-58 was issued, while Lot 2
remained covered by OCT No. (1020) RO-9. Lots 1 and 2 were subsequently
subdivided and titles to the resulting parcels of land were issued. However,
the TCTs covering the subdivided parcels of Lot 1, while correctly indicating
OCT No. (1898) RO-58 of Lot 1 as its source, contained the technical
description lifted from the OCT No. (1020) RO-9 covering Lot 2. Subsequent
transactions of the subdivided parcels of land of Lot 1 resulted in the issuance
of TCTs containing the incorrect technical description as well as the
inaccurate description of the location of the properties. The controversy arose
when Lorenzana, et al., learned that the same parcels were being claimed by
therein respondent B.E. San Diego, Incorporated, based on titles registered in
the latters name. The trial court found for respondent B.E. San Diego, as its
titles were not blemished by any defect and were regularly issued. The trial
court also considered in respondent B.E. San Diegos favor its open, adverse
and continuous possession of the disputed land since 1966 and its consistent
payment of taxes thereon. This Court upheld the ruling of the trial court. The
defects appearing on the titles of Lorenzana, et al. relating to the lots mother
title, technical descriptions and locationsjudicially admitted by Lorenzana, et
al.were too glaring that they could not be dismissed as clerical and harmless
in character. The discrepancies in Lorenzana, et al.s titles cannot be upheld
against the unblemished titles of B.E. San Diego.
The same cannot be said of the alleged defect in respondents title in the
case at bar. In Lorenzana, the erroneous entries were too numerous and
evident, and involved significant portions of the titles. On the other hand, the
claimed flaw in respondents title and the title of its predecessors-in-interest is
GLRO Record No. 197, which petitioners assert should be GLRO Record No.
917. It is obvious that such a defect involves only an interchanging of
numbers. It is certainly believable that such variance in the copying of entries
could be merely a typographical or clerical error. Furthermore, as the Court of
Appeals pointed out, petitioners own witnesses explained that the
inconsistency in the entries in the GLRO record number could be due to
clerical error, and in such case, the technical description in the title should
prevail over the record number.
It must be noted, too, that the original of respondents title still exists and is
with the Register of Deeds of Quezon City as it was not one of the titles that
were destroyed by the fire. Petitioner Encinas title, on the other hand, is a
reconstituted title, which was later withdrawn by the same office which issued
it, pursuant to the Supplemental Order dated July 17, 1997 and Order dated
June 8, 1999.[36]
Respondent has established by preponderant evidence that it is the
rightful owner of the subject property. Petitioners have not.
WHEREFORE, the Petition for Review on Certiorari is DENIED, no
reversible error on the part of the Court of Appeals having been adduced.
Costs against petitioners.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario,
JJ., concur.
THIRD DIVISION

[G.R. No. 115625. January 23, 1998]

ESMUNDO B. RIVERA, petitioner, vs. COURT OF APPEALS, AMY

ROBLES, PEREGRINO MIRAMBEL and MERLINA
MIRAMBEL, respondents.

DECISION
PANGANIBAN, J.:

In deciding this appeal, the Court relies on the rule that a party who has the burden
of proof in a civil case must establish his cause of action by a preponderance of
evidence.When the evidence of the parties is in equipoise, or when there is a doubt as
to where the preponderance of evidence lies, the party with the burden of proof fails and
the petition/complaint must thus be denied.

Statement of the Case

 The foregoing dictum is applied by this Court in denying this petition for review
on certiorari assailing the February 21, 1994 Decision[1] of the Court of Appeals[2] in CA-
G.R. SP No. 32360, which held:

ACCORDINGLY, the instant petition for review is hereby DISMISSED for lack
of merit. No pronouncement as to costs.

IT IS SO ORDERED. [3]

The petition for review dismissed by the Court of Appeals challenged the
decision[4] of the Regional Trial Court of Valenzuela, Branch 172,[5] which disposed as
follows:

The evidence on record presented by the plaintiff does not also show that his
parents and himself have prior possession of the land in question. The
evidence presented by the defendants, however, show that they have been
the caretaker of the said public land located at Malinta, Valenzuela and
adjacent to private lot of plaintiff since the year 1969 which was applied for by
their principal, Jose Bayani Salcedo under Miscellaneous Sales Application
No. (111-6) 131 now MLI (13-1) 33-2D.

It is very evident that the defendants are not squatters on the private land of
the plaintiff.

Accordingly, therefore, the Joint Decision of the Metropolitan Trial Court dated
March 18, 1993 is hereby set aside and the three complaints, Civil Case Nos.
5740, 5741 and 5742 of the Court a quo are hereby dismissed without
pronouncement as to costs.

IT IS SO ORDERED. [6]

The Antecedent Facts

The facts are narrated by Respondent Court of Appeals as follows:

On July 19, 1990, petitioner filed complaints for ejectment against private
respondents Amy Robles Peregrino Mirambel, and Merlina Mirambel,
docketed as Civil Case Nos. 5740, 5741 and 5742, respectively, before the
Metropolitan Trial Court of Valenzuela, Branch 81.

On August 8, 1990, movant Jose Bayani A. Salcedo filed an urgent motion for
intervention on the ground that he has a legal interest in the subject for he
applied for title of the public land under MSA No. (11-6) 131 (now MII [131-1]
33-D), which was denied on January 2, 1991.

On August 8, 1990, private respondents filed their answers, respectively.

After submission of their position papers, the (Metropolitan Trial Court)

rendered joint judgment in favor of the petitioner and against the private
respondents on March 18, 1993, the dispositive portion of which herein-below
quoted:

In fine, by evidence plaintiff has preponderably established his cause of

action.
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against each of the above-named defendants and any/all persons claiming
rights respectively under each of them, ordering the latter as follows:

1. In Civil Case No. 5740

a). To remove her house and to vacate plaintiffs land, together

with all persons claiming rights under her;

b). To pay plaintiff reasonable compensation for her use and

occupancy of the land from May 29, 1990 up to the time that she
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorneys fees in the sum of P3,500.00; and

d). To pay the costs of suit.

2. In Civil Case No. 5741

a). To remove his house and to vacate plaintiffs land, together

with all persons claiming rights under him;

b). To pay plaintiff reasonable compensation for his use and

occupancy of the land from May 29, 1990 up to the time that he
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorneys fees in the sum of P3,500.00; and

d). To pay the costs of suit.

3. In Civil Case No. 5742

a). To remove her house and to vacate plaintiffs land, together

with all persons claiming rights under her;

b). To pay plaintiff reasonable compensation for her use and

occupancy of the land from May 29, 1990 up to the time that she
actually vacates the same, at the rate of P500.00 a month;

c). To pay plaintiff attorneys fees in the sum of P3,500.00; and

d). To pay the costs of suit.

SO ORDERED.

Dissatisfied, private respondent filed an appeal before the (Regional Trial

Court) which rendered the assailed judgment on September 21, 1993
reversing and setting aside the decision of the (Metropolitan Trial Court).
[7]

Thereafter, petitioner appealed to Respondent Court of Appeals, raising the

following assignment of errors:
I
RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT RESPONDENTS
HOUSES ARE LOCATED ON THE PUBLIC LAND APPLIED FOR BY COL. ATTY.
JOSE BAYANI SALCEDO BASED MERELY ON A LETTER DATED JUNE 7, 1971
BY THE DISTRICT LAND OFFICER OF THE BUREAU OF LAND ADDRESSED TO
EULOGIO J. RIVERA, PETITIONERS FATHER.
 II
RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT PETITIONER AND
HIS PARENTS/PREDECESSOR-IN-INTEREST NEVER HAD PRIOR
POSSESSION OF THE LAND AND THAT INSTEAD IT WAS RESPONDENTS
WHO HAVE BEEN IN OCCUPANCY THEREOF SINCE 1969 AS CARETAKER OF
COL. ATTY. JOSE BAYANI SALCEDO.
III
RESPONDENT JUDGE GRAVELY ERRED IN FINDING THAT PETITIONERS
LAND ENCROACHED UPON THE PUBLIC LAND APPLIED FOR BY COL. ATTY.
JOSE BAYANI SALCEDO BY AN AREA OF MORE OR LESS 400 SQUARE
METERS DUE TO RESURVEYS MADE BY PETITIONER AND HIS PARENTS.[8]
As earlier noted, the Court of Appeals dismissed the petition for failure of petitioner,
as plaintiff before the trial court, to prove a cause of action. Hence, this petition for
review.[9]

Public Respondents Ruling

In dismissing the petition, the Court of Appeals ruled as follows:

Petitioner maintains that the respondent court committed grave abuse of

discretion in setting aside the decision of the trial court particularly in finding
that the lots where private respondents built their houses are outside of the
land owned by the petitioner, it appearing that such finding lacks evidentiary
basis.

In the case at bar, petitioner seeks to eject herein private respondents who
allegedly illegally constructed their house on his land. The Metropolitan Trial
Court ruled in favor of the petitioner and ordered the private respondents to
vacate the subject premises. On appeal, however, the respondent court
reversed the appealed judgment taking into consideration that the land where
the house of the private respondents stand is outside of the area owned by
the petitioner, hence, there was no cause of action.

The decisive issue in the case at bar is whether or not the lot where private
respondents constructed their abode within the land [owned] by the petitioner.

The trial court believes so while the respondent court ruled otherwise and
stated that the houses are located in a public land. After a careful scrutiny of
the decisions of the courts a quo, We find that both decisions are not
supported by substantial evidence. The decision of the trial court stated
that: The evidence on hand indubitably (sic) show however that a title on the
property has been issued to herein plaintiff (petitioner herein). The claim of the
defendants therefore that they are occupying a public land cannot be taken as
gospel truth. It must be noted, however, that there is no showing that the
evidence on hand showed that the lot on which private respondents
constructed their abode are [sic] located in the titled property of the
petitioner. The decision of the trial court disclosed that its Order dated August
12, 1991, directing the Land Management Bureau to conduct a field survey
and to submit a report thereof to enable the Court to determine whether the
land subject matter of these cases is a public or private land, was never
implemented. It can be seen that there is no certainty that the houses of the
private respondents are located on the lot owned by the petitioner. Nor was
there an ocular inspection sanctioned by the court where the parties were duly
represented. The Court cannot rely solely on the survey commissioned by one
party for it may be self-serving absent a thorough verification thereof.
The respondent courts reliance of a letter dated June 7, 1971 of the District
Land Officer Jesus B. Tabao to petitioners predecessor-in-interest informing
him that his application cannot be given due course because of the prior
application of Jose Bayani Salcedo (June 26, 1969) is misplaced for it does
not proved anything. The abovementioned observations as pertaining to the
trial courts finding that the private land of the petitioner and his parents
encroached upon the subject land of the public domain to an area of more or
less 400 square meters due to re-survey made by the plaintiff and his parents.

In fine, We find that the courts a quo failed to make a definitive ruling on the
issue of whether or not the houses constructed by the private respondents are
within the private land owned by the petitioner or a public land. The parties
should have conducted a field survey directed by the court below or to have
an ocular inspection of the subject premises.

Verily, it appears that petitioner, as plaintiff failed to establish a cause of action, hence,
the complaint must perforce be dismissed.[10]

The Issue

In his Memorandum dated February 22, 1996, Petitioner Esmundo B. Rivera

formulated the issue as follows: whether private respondents houses lie inside
petitioners land, and whether petitioner was able to prove that fact. [11] Put differently, the
issue for resolution is whether or not petitioner proved his cause of action.

The Courts Ruling

The petition is unmeritorious.

Proof Required in Civil Cases

Basic is the rule in civil cases that the party having the burden of proof must
establish his case by a preponderance of evidence.[12] By preponderance of evidence is
meant simply evidence which is of greater weight, or more convincing than that which is
offered in opposition to it.[13] In the present ejectment case, petitioner (as plaintiff) has the
burden of proving that the houses of private respondents were located within his titled
land. To justify a judgment in his favor, petitioner must therefore establish a
preponderance of evidence on this essential fact.
Petitioner points out that the field survey, verification and measurement of his land
by his privately hired geodetic engineer, Ildefonso Padigos, found that private
respondents houses are situated inside the same.[14] Insisting on the findings of this
private survey, petitioner assails the Respondent Court of Appeals for considering the
same undeserving of credence and belief and insufficient to prove his case.[15]
This Court is not persuaded. The extant records of this case support the finding of
the Court of Appeals that the aggregate of evidence submitted by both parties was
insufficient to determine with certainty whether the private respondents houses were
inside the petitioners titled property. As noted by Respondent Court, private
respondents claim that their houses were built on public land, which Attorney Salcedo
applied for, is not convincing because petitioner has a transfer certificate of title over the
same parcel of land. Likewise unconvincing is the private survey commissioned by the
petitioner himself to prove that the houses of private respondents encroached on his
property. The reliability of the survey would have been indubitable had it been properly
authenticated by the Bureau of Lands or by officials thereof.[16]
 Moreover, the field survey ordered by the Metropolitan Trial Court was never
conducted. Neither was an ocular inspection of the premises held in the presence of
both parties. As correctly concluded by the Court of Appeals, the absence of both
processes precluded the final determination of the main issue.
Where the evidence on an issue of fact is in equipoise or there is doubt on which
side the evidence preponderates[,] the party having the burden of proof fails upon that
issue.[17]Therefore, as neither party was able to make out a case, neither side could
establish its cause of action and prevail with the evidence it had. They are thus no
better off than before they proceeded to litigate, and, as a consequence thereof, the
courts can only leave them as they are. In such cases, courts have no choice but to
dismiss the complaints/petitions.[18]
In any event, we are here called upon essentially to review the public respondents
assessment of the weight of the evidence presented by both parties. This factual
question, however, may not be raised in a petition for review under Rule 45 of the Rules
of Court. This rule is subject to well-recognized exceptions,[19] but petitioner failed to
prove that this case falls under one of them. If for this reason alone, the petition should
be denied.
WHEREFORE, the petition for review on certiorari is hereby DENIED, with costs
against petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

DIVISION

[ GR No. 126480, Aug 10, 2001 ]

MARIA TIN v. PEOPLE +

DECISION

415 Phil. 1

QUISUMBING, J.:
This petition assails the decision of the Court of Appeals dated July 24,
1996, affirming the decision of the Regional Trial Court of Manila, Branch
40, dated May 5, 1993, finding the accused (now petitioner) Maria Tin @
"Maria Ty" @ "Maria Dy" guilty of estafa and sentencing her to suffer
imprisonment of six years and one day of prision mayor as minimum to 20
years of reclusion temporal as maximum and to pay the private
complainant, Dr. Francisca M. Santiago, the amount of P280,000.00 plus
12 percent interest per annum from the filing of the information and
P40,000.00 as attorney's fees.

Petitioner was charged in an Information which reads:

That, on or about February 8, 1980, in the City of Manila, Philippines, the

said accused did then and there willfully, unlawfully and feloniously
defraud one FRANCISCA M. SANTIAGO in the following manner, to wit:
the accused received in trust from said Francisca M. Santiago several pieces
of jewelry with an estimated value of more than P220,000.00 as collateral
to the loan in the amount of P220,000.00 which the latter obtained from
the accused, under the express obligation of returning the said pieces of
jewelry to said Francisca M. Santiago immediately upon demand for
redemption, but the said accused once in possession of the said pieces of
jewelry far from complying with her aforesaid obligation, failed and
refused, and still fails and refuses to do so despite repeated demands made
upon her to that effect and with intent to defraud the said accused denied
having received the said pieces of jewelry to the damage and prejudice of
the said Francisca M. Santiago.

CONTRARY TO LAW.[1]

On arraignment, petitioner pleaded not guilty.

At the trial, private complainant Dr. Francisca Santiago testified that on

February 8, 1980, she and Aurora Jose went to Mady's Pawnshop owned by
petitioner to pawn some pieces of jewelry. She initially asked for
P250,000.00 but petitioner offered only P220,000.00, P200,000.00 first
and then the P20,000.00 a week later. A list of the jewelries was
typewritten by a helper of the petitioner. This list was signed by petitioner
as evidence of her receipt of the said jewelries.[2] Dr. Santiago also averred
that from 1980 to 1982, she made 19 payments of various amounts totaling
P95,600.00.[3] She said that the loan was under a "white-paper" system
where there is no maturity/expiration date and where the jewelry can be
redeemed anytime provided the interests were paid.[4]

On February 1, 1984, Dr. Santiago said, she went to the pawnshop with a
certain Mrs. Dava and a Mrs. Zuñiga to redeem her jewelry. She brought
with her the amount of P450,000.00 to settle her loan. However, petitioner
told her that the jewelries were already sold.[5] This prompted Dr. Santiago
to consult Atty. German Abaya Sipin, who wrote to Maria Tin[6] asking her
to allow Dr. Santiago to redeem the pieces of jewelry. On March 2, 1984,
petitioner replied through her counsel, Atty. Marcelo T. Dy, confirming that
Dr. Santiago has an unsettled obligation of P220,000.00 and demanding
payment. The letter also stated that no jewelries were received as collateral
for the loan.[7] In a handwritten letter dated March 7, 1984, Dr. Santiago
pleaded for the redemption of her jewelries.[8] Maria Tin, also in a
handwritten letter dated March 16, 1984, replied that she merely acted as
guarantor of the loan and since she was made to pay the loan she now was
demanding payment therefor.[9] In said letter, Tin narrated the
circumstances behind the loan, and alleged that it was another person who
gave the loan and received the jewelry as collateral.

Petitioner testified that the real parties to the loan were Dr. Santiago and
her daughter-in-law, Mia Chan. She merely introduced them to one another
and it was Mia Chan who signed the acknowledgment receipt and who
actually received the pieces of jewelry.[10]

Mia Chan, for her part, corroborated the testimony of petitioner, her
mother-in-law. She stated that she was the one who extended the loan to
Dr. Santiago and that she merely asked petitioner to appraise the pieces of
jewelry for her. She also requested petitioner to collect payments from Dr.
Santiago. According to Mia Chan, the loan was for a three-month term with
14 percent interest per annum. She stated she signed the receipt upon
request of Dr. Santiago.[11]
On May 5, 1993, the trial court rendered a decision finding petitioner guilty.
The dispositive portion of the said decision reads:

From the foregoing, the court finds MARIA TIN, alias MARIA TY or
MARIA DY, the accused, GUILTY beyond reasonable doubt of the crime of
ESTAFA. Accused is hereby sentenced to suffer an imprisonment of six (6)
years and one (1) day of prision mayor as minimum to twenty (20) years of
reclusion temporal as maximum.

Accused is hereby ordered to pay Dr. Francisca M. Santiago the amount of

P280,000.00 plus 12% interest per annum from the filing of the
Information and P40,000.00 as Attorney's Fees.

Dr. Francisca M. Santiago is required to pay the docket fees of the civil
aspect of this case.

SO ORDERED.[12]

Petitioner appealed with the Court of Appeals which affirmed the trial
court's decision. Her Motion for Reconsideration was denied.

Hence, this petition. Petitioner avers that the appellate court erred in:

I. … NOT FINDING THAT THE PROSECUTION'S EVIDENCE IS FULL OF

LOOPHOLES AND SELF-CONTRADICTIONS, APART FROM BEING
INHERENTLY INCREDIBLE, AND HENCE GROSSLY INSUFFICIENT
FOR CONVICTION.

II. … RELYING ON WHAT IT PERCEIVED TO BE WEAKNESSES OF THE

DEFENSE RATHER ON THE STRENGTH OF THE PROSECUTION'S
CASE.

III. … NOT UPHOLDING ACCUSED-APPELLANT'S CONTENTION (A)

THAT SANTIAGO LIED WHEN SHE SAID THAT IT WAS ONLY WHEN
SHE ARRIVED AT MADY'S PAWNSHOP THAT SHE CAME TO KNOW
FROM WHOM SHE WAS GOING TO OBTAIN A LOAN AND THAT IT
WAS SANTIAGO WHO TYPED AND PREPARED EXH. "A" AND (B) THAT
DRA. SANTIAGO HERSELF PREPARED EXH. "A" AND WROTE THE
NAME "MARIA TIN" AS THE LENDER.

Essentially, in our view, petitioner raises issues of fact by assailing the

credibility of witnesses. As a general rule, this Court in a petition under
Rule 45 of the Rules of Court will review only errors of law. It is not the
function of this Court to weigh the evidence on factual issues all over
again.[13] However, there are certain exceptions to this rule, one of which is
when the judgment is based on misapprehension of facts.[14] In this case,
the decisions of both the trial court and the Court of Appeals are allegedly
based on misapprehensions of vital facts, making their review necessary.

A conviction in this case for estafa depends on three facts: (1) that accused
was the one who extended the loan; (2) that accused was the one who
received the pieces of jewelry as collateral for the loan she extended; and
(3) that the loan was for an indefinite term. These factual circumstances
must relate directly to the elements of the crime of estafa with abuse of
confidence under Article 315 (1) (b) of the Revised Penal Code.[15]

Both trial and appellate courts held that it was petitioner who extended the
loan and who actually received the jewelries from Dr. Santiago. Their
conclusion stemmed from the following circumstances:

(1) In a letter she wrote to Fiscal Jumino, one Aurora Jose who had
allegedly introduced Dr. Santiago to Maria Tin and who was present when
the transaction took place, corroborated Dr. Santiago's testimony;

(2) The signature of appellant [petitioner] appears on the

document[16] acknowledging receipt of the pieces of jewelry;

(3) Receipts evidencing payments made by Dr. Santiago and which

appeared to be signed by the petitioner were not denied by the latter;

(4) Petitioner did not deny that she sent a note (Exh. "M-2") to Dr. Santiago
reminding her to update her payments, or else she would auction the pieces
of jewelry.

A careful review of the records, however, reveals that, first, it was erroneous
for the Court of Appeals to consider in evidence the letter which a certain
Aurora Jose sent to Fiscal Jumino.[17] Aurora Jose was never presented to
testify on the veracity of said letter, much less its contents. A private
certification is hearsay where the person who issued the same was never
presented as a witness.[18] The same is true of letters. They are hearsay
evidence. Here, Aurora Jose's alleged letter is obviously hearsay. While
hearsay evidence may be admitted because of lack of objection by the
adverse party's counsel, it is nonetheless without probative value.[19]

Second, the signature appearing in the receipt, Exhibit "A", apparently

differs from the specimen signatures provided by petitioner Maria Tin in
open court.[20] But it has striking and obvious similarities to Mia Chan's
specimen signatures.[21] The differences and similarities are so obvious to
the eye. They could not be casually disregarded. Expert handwriting
analysis is probably useful here, but it is not indispensable.[22] As said
in People vs. Pagpaguitan, 315 SCRA 226:

When a writing in issue is claimed on the one hand and denied upon the
other to be the writing of a particular person, any other writing of that
person may be admitted in evidence for the purpose of comparison with the
writing in dispute. It is also recognized that a comparison of writing is a
rational method of investigation; similarities and dissimilarities thus
disclosed have probative value in the search for truth. Thus, it has been
held that, where a comparison is permissible, it may be made by the court,
with or without the aid of expert witnesses. The court may, in the exercise
of its sound discretion, order a party to write or sign his signature as a basis
for comparison. For, the handwriting of a person is characteristic of the
person himself. Once admitted, the genuineness of other offered writings
alleged to be the work of the same writer becomes a question for the trier of
fact who may, but need not, be assisted in this task by experts.[23]

In the present case, the prosecution bears the burden of proving that the
signature in Exhibit "A" was the petitioner's, not Mia Chan's. This the
prosecution did not do.

Third, petitioner did not deny that she received payments and made
demands for payment from private complainant. They do not show,
however, that she was the one who extended the loan and accepted the
jewelries. Note that even Mia Chan received certain payments from Dr.
Santiago, as shown by Exhibits "8", "8-A", "10" and "10-A". A certain
"Viring" also received payment from Dr. Santiago.[24] These instances only
prove that a person who received payments from another is not necessarily
the person who extended the loan.

Fourth, Exhibit "M-2"[25] which the Court of Appeals considered proof that
petitioner was in possession of the jewelry, deserves serious scrutiny. Said
exhibit was not properly identified or introduced as evidence at the trial. It
was marked as an exhibit upon mere manifestation of counsel.[26] It was not
touched upon during the testimony of the private complainant nor listed in
the list of exhibits for the prosecution,[27] hence deemed inadmissible in
evidence.[28]

Fifth, Mia Chan's admission, that she was the one who extended the loan
and received the jewelries, deserves weighty consideration and could not be
ignored. That admission is one against self-interest, amounting to an
incriminatory statement, which the witness could not have volunteered if
not the truth.

Petitioner claims that the loan was for a three-month period only. But
private complainant averred that it was extended under a so-called "white-
paper" system, or a loan with an indefinite term. Petitioner presented her
daughter-in-law, Mia Chan, to establish that the loan was only for a three-
month period. Private complainant did not present evidence to substantiate
her claim, other than her self-serving testimony. Private complainant relied
on the acknowledgment receipt allegedly signed by petitioner in the
presence of two witnesses. However, the prosecution did not present
Aurora Jose, who allegedly witnessed the transaction. Nor did it present
Mrs. Dava and Mrs. Zuñiga who allegedly accompanied Dr. Santiago when
the latter tried to redeem her jewelries. While non-presentation of certain
witnesses is not a valid defense nor does it work against the prosecution's
cause,[29] this holds true only if the evidence of the prosecution is
sufficiently strong to overcome the presumption of innocence of the
accused. If the prosecution evidence is not strong, then it becomes
mandatory for the prosecution to present evidence which can help further
its case, or explain why such evidence is not presented. When the sole
testimony of the complainant is met by an equally credible evidence of the
defense, then the prosecution must present credible corroborative
witnesses to buttress its case. Its failure to present corroborative witnesses,
without any explanation why they were not produced, weakens the
testimony of the witness who named those corroborating witnesses in her
testimony.[30] In this case, the prosecution's failure to present the
corroborative witnesses, without any explanation for their non-appearance,
makes private complainant's testimony weak.

Further, since it was private complainant who asserted that the loan was for
an indefinite term under the so-called "white-paper system" of the
pawnshop, she had the burden of proving that fact as true. In this she
failed, and her failure undermines the case for the prosecution.

Faced with two conflicting versions, we are guided by the equipoise rule.
Under this rule, where the evidence on an issue of fact is in equipoise or
there is doubt on which side the evidence preponderates, the party having
the burden of proof loses.[31] The equipoise rule finds application 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, for then the evidence does not fulfill
the test of moral certainty, and does not suffice to produce a
conviction.[32] Briefly stated, the needed quantum of proof to convict the
accused of the crime charged is found lacking. And in this case, the
petitioner must be declared innocent and set free.

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

CR No. 14818, affirming that of the Regional Trial Court in Crim. Case No.
88-64598, is hereby REVERSED and SET ASIDE. Petitioner Maria Tin
is ACQUITTED of the charge against her under Article 315 (1) (b) of the
Revised Penal Code, for lack of evidence sufficient to sustain a finding of
guilt beyond reasonable doubt.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 117970 July 28, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ULYSSES M. CAWALING, ERNESTO TUMBAGAHAN, RICARDO DE LOS SANTOS, and

HILARIO CAJILO, accused-appellants.

PANGANIBAN, J.:

It is axiomatic that once an accused-appellant admits killing the victim, he bears the burden of
establishing the presence of any circumstance like self-defense, performance of a lawful duty or, for
that matter, double jeopardy, which may relieve him of responsibility, or which may mitigate his
criminal liability.1 If he fails to discharge this burden, his conviction becomes inevitable. In this
Decision, we also reiterate the following doctrines: (1) the regional trial court, not the
Sandiganbayan, has jurisdiction over informations for murder committed by public officers,
including a town mayor; (2) the assessment of trial courts on the credibility of witnesses and
their testimonies deserve great respect; (3) the equipoise rule cannot be invoked where the
evidence of the prosecution is overwhelming; (4) alibi cannot be believed in the face of
credible testimony identifying the appellants; and (5) conspiracy may be proven by
circumstantial evidence.
 The Case

Before us is an appeal from the 34-page Decision 2 dated October 21, 1994, promulgated by
the Regional Trial Court of Romblon in Criminal Case No. OD-269. Convicted of murder were
former Mayor Ulysses M. Cawaling and Policemen Ernesto Tumbagahan, 3 Ricardo De los
Santos and Hilario Cajilo.

Prior to the institution of the criminal case against all the appellants, an administrative
case 4 had been filed before the National Police Commission, in which Policemen Ernesto
Tumbagahan, Ricardo De los Santos, Hilario Cajilo (three of herein appellants) and Andres
Fontamillas were charged by Nelson Ilisan 5 with the killing of his brother Ronie 6 Ilisan. On
April 6, 1986, Adjudication Board No. 14 7 rendered its Decision which found Tumbagahan, De
los Santos, Cajilo and Fontamillas guilty of grave misconduct and ordered their dismissal
from the service with prejudice. 8 On June 26, 1986, the Board issued a
resolution, 9dismissing the respondents' motion for reconsideration for lack of merit.

Subsequently, on June 4, 1987, Second Assistant Provincial Fiscal Alexander Mortel filed,
before the Regional Trial Court (RTC) of Odiongan, Romblon, 10 an Information for
murder 11 against the appellants and Andres Fontamillas. The accusatory portion reads:

That on or about the 4th day of December 1982, at around 9:00 o'clock in the
evening, in the Poblacion, [M]unicipality of San Jose, [P]rovince of Romblon,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, with intent to kill, conspiring, confederating and mutually helping one
another, did then and there, by means of treachery and with evident
premeditation and taking advantage of their superior strenght [sic] willfully,
unlawfully and feloniously attack, assault and shoot RONIE ILISAN, with the
use of firearms, inflicting upon the latter multiple mortal injuries in different
parts of his body which were the direct and immediate cause of his death.

Accused Tumbagahan, De los Santos, Cajilo and Fontamillas, with the assistance of their
lawyers Atty. Abelardo V. Calsado and Juanito Dimaano, pleaded not guilty when arraigned
on February 15, 1988; 12 while Accused Cawaling, assisted by Counsel Jovencio Q. Mayor,
entered a plea of not guilty on March 16, 1988. 13

After due trial, 14 the court a quo 15 rendered its Decision dated October 21, 1994, 16 the decretal
portion of which reads:

WHEREFORE, this Court finds the accused (1) ULYSSES M. CAWALING, (2)
ERNESTO TUMBAGAHAN, (3) RICARDO DELOS SANTOS, (4) HILARIO CAJILO,
AND (5) ANDRES FONTAMILLAS GUILTY beyond reasonable doubt of the
crime of MURDER under the Information, dated June 4, 1987, and sentences
each of them to suffer the penalty of reclusion perpetua, with the accessory
penalties of the law.

The accused, jointly and severally, are ORDERED to pay Nelson Elisan the sum
of P6,000.00 as actual damages and the heirs of the deceased Ronie Elisan the
sums of P116,666.66 by way of lost earnings and P50,000.00 as indemnity for
death, without subsidiary imprisonment in case of insolvency, and to pay the
costs.

The bail bonds of all the accused are ORDERED CANCELLED and all said
accused ORDERED immediately confined in jail.

The slug (Exh. A); the .38 caliber revolver (with 3 empty shells and 3 live
bullets) (Exh. G); and the slug of bullet (Exh. H) are confiscated in favor of the
government.

After the judgment has become final, the Officer-in-Charge, Office of the Clerk
of Court, this Court, is ordered to deliver and deposit the foregoing Exhibits A,
F, G and H, inclusive, to the Provincial Director, PNP, of the Province of
Romblon properly receipted. Thereafter, the receipt must be attached to the
record of the case and shall form part of the record.

The period of preventive imprisonment the accused had undergone shall be

credited in their favor to its full extent pursuant to Article 29 of the Revised
Penal Code, as amended.
 The case against co-accused ALEX BATUIGAS who is at large is ORDERED
ARCHIVED pending his arrest. 17

Hence, this appeal. 18

The Facts

Version of the Prosecution

The trial court gives this summary of the facts as viewed by the prosecution witnesses:

The killing occurred on December 4, 1982 at around 9:00 o'clock in the evening
at the ricefield of Poblacion, San Jose, Romblon when the bright moon was
already above the sea at an angle of about 45 degrees, or if it was daytime, it
was about 9:00 o'clock in the morning (Imelda Elisan Tumbagahon, on direct
examination, tsn, Jan. 17, 1989, p. 5, and on cross examination, tsn, April 18,
1989, p. 22).

On December 4, 1982, about 8:00 o'clock or 8:30 o'clock in the evening, Vicente
Elisan and his elder brother Ronie Elisan, the victim, were drinking tuba at C &
J-4 Kitchenette of co-accused Andres Fontamillas in Poblacion, San Jose,
Romblon. When they stood up to go home, Luz Venus, the wife of Diosdado
Venus, told them not to go out because the accused were watching them
outside about three (3) meters from the restaurant. Diosdado Venus
accompanied them upon their request and they went out and walked towards
home. About a hundred meters from the restaurant, the six (6) accused, that is,
Mayor Cawaling, the four (4) policemen, namely, Hilario Cajilo, Andres
Fontamillas, Ernesto Tumbagahan and Ricardo delos Santos, and civilian Alex
Batuigas, the mayor's brother-in-law, flashlighted them and Diosdado Venus
ran going back. The two (2) brothers also ran towards home to the house of
their elder sister Imelda Elisan Tumbagahon. Co-accused Andres Fontamillas
and Hilario Cajilo blocked them on the gate of the fence of their sister's house.
Ronie Elisan ran towards the ricefield. The accused were chasing them.
Vicente Elisan saw his brother Ronie f[a]ll down on the ricefield while he ran
towards the bushes and la[y] on the ground. Ronie Elisan rose up by kneeling
and raising his two (2) hands. All the six (6) accused approached him with their
flashlights and shot him. Ronie fell down about twenty (20) meters from the
bushes where Vicente Elisan hid behind the coconut tree. Co-accused
Cawaling said ["]you left him, he is already dead.["] Mayor Cawaling was armed
with .45 caliber, policemen Andres Fontamillas and Hilario Cajilo were both
with armalites, Ernesto Tumbagahan and Ricardo delos Santos were both with
.38 caliber and so with civilian Alex Batuigas. They left towards the house of
Mayor Cawaling. After they were gone, Vicente Elisan ran towards the house of
his older brother Nelson Elisan. Upon seeing him, Vicente told Nelson that
Ronie was already dead. Nelson said nothing. While they were there, elder
sister Imelda Elisan Tumbagahon, who was crying came. She said: "Manong,
patay ron si Ronie." (Brother, Ronie is already dead). Nelson said ["]do not be
noisy; they might come back and kill all of us.["] Imelda stopped crying.

After a while, brothers Nelson and Vicente Elisan went to the house of
barangay captain Aldolfo Tumbagahon. The three (3) went to the townhall and
called the police but there was none there. Going to the house of the Chief of
Police Oscar Montero, they were told by his wife that Commander Montero was
in the house of Mayor Cawaling. They proceeded to the place where Ronie
Elisan was shot. The cadaver was brought to the house of Nelson Elisan.
Vicente Elisan found an empty shell of a .45 caliber about three (3) arm's length
from the body of the victim. They surrendered it to the Napolcom. 19

Dr. Blandino C. Flores described the gunshot wounds of the victim as follows:

Gunshot Wounds:

1. Shoulder:

Gun shot wound 1/2 x 1/2 inch in diameter

shoulder right 2 inches from the neck with
contussion [sic] collar s[u]rrounding the wound.

2. Right Axilla:
 Gun shot wound 1/4 x 1/4 inch in diameter, 2
inches below the right nipple with contussion
[sic] collar s[u]rrounding the wound.

3. Left Axilla:

Exit of the gun shot wound from the right axilla,

measuring 1/2 x 1/2 inch with edges everted, one
inch below the axilla and one inch below the level
of the nipple.

4. Back:

Gun shot wound measuring 1/4 x 1/4 inch, along

the vertebral column, right at the level of the 10th
ribs with contussion [sic] collar.

5. Leg, Left:

Gun shot wound measuring 1/4 x 1/4 anterior

aspect upper third leg with contussion [sic] collar,
with the exit 1/2 x 1/2 posterior aspect upper third
leg, left. 20

Based on the death certificate (Exhibit E) issued by Dr. Flores, Ronie Ilisan died of "severe
hemorrhage and gun shot wo[unds]." 21

Version of the Defense

Appellant Cawaling, in his 47-page Brief, 22 presented his own narration of the incident as
follows:

At around 7:00 in the evening of December 4, 1982, Ulysses Cawaling, then the
mayor of the [M]unicipality of San Jose in the [P]rovince of Romblon, arrived
aboard a hired motorized boat from Manila in the seashore of San Jose. From
the seashore, he immediately proceeded to his home. At around 7:30 in the
evening, Cawaling went to the municipal hall to check on administrative
matters that piled up in the course of his trip to Manila. He also went inside the
police station (located inside the municipal building) to be apprised of any
developments, after which he went out and joined Pfc. Tumbagahan and Pfc.
Cajilo who were standing near the flagpole in front of the municipal building.
The three engaged in a conversation. Cawaling learned that the two police
officers were the ones assigned for patrol/alert for that night. The three of them
went inside the INP office and there Cawaling informed the two policemen that
he received information from reliable persons that certain persons were
plotting to kill him and a member of the town's police force. It is to be noted
that this occurred at the height of the communist insurgency and political
violence in the countryside in the early 80's. Hence, such information was
taken very seriously, having been relayed by sources independent of each
other.

Cawaling, as town chief then empowered with supervisory authority over the
local police, accompanied Pfc. Tumbagahan and Pfc. Cajilo in conducting
patrol and surveillance operations around the small municipality. He usually
did this as routine since Romblon was then plagued with political
assassinations and armed conflict. On their way to the seashore, they passed
by C & J-4 Kitchenette, and chanced upon Ronnie Ilisan and his brother
Vicente Ilisan drinking liquor and discussing in very loud voices. They stopped
right in the front of the restaurant and there they heard Ronnie Ilisan state in a
every loud voice that he will kill a person that night. Inside the restaurant,
without the knowledge then of Cawaling and the two police officers, witness
Gil Palacio, who was buying cigarettes and Luz Venus, the cook/server of the
restaurant, saw Ronnie Ilisan, very drunk, brandishing in the air a .38 caliber
Smith and Wesson revolver with a protruding screw.

Initially dismissing Ronnie Ilisan's statement as just another hollow swagger of

an intoxicated person ("salitang lasing"), Cawaling and the two policemen
proceeded on their way. After the patrol, they returned to the municipal
building and stationed themselves in front. At around 8:30 in the evening,
 Ronnie Elisan passed by the municipal hall walking towards the direction of
the house of Nelson Ilisan, another brother, and shouted the challenge, "gawas
ang maisog", meaning THOSE WHO ARE BRAVE, COME OUT. Cawaling and
the two police officers again brushed aside [the] challenge as just another
foolish drunken revelry [o]n the part of Ronnie Ilisan, a well-known
troublemaker in the small municipality.

A few moments later, after Ronie Ilisan had passed by, they distinctly heard a
gunshot and hysterical female voices shouting, "pulis, tabang" meaning
POLICE! HELP! four times. Impelled by the call of duty, Cawaling and the two
policemen immediately ran in the direction of the gunshot and the desperate
female voices until they reached the house of Nelson Ilisan in San Jose Street.
At this point, they saw Ronnie Ilisan holding a .38 caliber revolver. They also
saw Vicente Ilisan, Francisco Tesnado, Fe Ilisan, the wife of Nelson and Delma
Ilisan, the wife of Vicente, the latter two being the same persons who cried
"pulis, tabang" four times. Cawaling then told Ronnie to surrender his gun but
the latter responded by pointing the gun at Cawaling and pulling the trigger.

At the precise moment that the gun fired, Cawaling warned the two policemen
to drop to the ground by shouting "dapa". Fortunately, Cawaling was not hit.
Ronnie Ilisan then turned around and ran towards the church. The two
policemen gave chase. Cawaling, still shaken and trembling after the
mischance was initially left behind but followed shortly. When Ronnie Ilisan
reached the church, he turned around and again fired at the pursuing Pfc.
Cajilo. Fortunately, the gun misfired. When they finally reached the ricefield,
Pfc. Cajilo fired two (2) warning shots in the air for Ronnie to surrender. Ronnie
responded by firing once again at Pfc. Tumbagahan but failed to hit the latter.
At that instance, Pfc. Cajilo counter-fired at Ronnie Ilisan hitting him. Pfc.
Tumbagahan also fired his weapon in the heat of exchange and also hit Ronnie
Ilisan. As a result of the gunshot wounds, Ronnie Ilisan later on succumbed.

Pfc. Tumbagahan picked up the gun still in the hand of the dead Ronnie Ilisan
and gave it to Pfc. Cajilo. The three, Cawaling, who subsequently caught up
with them after the incident, and the two police officers, then proceeded to the
police station located in the municipal building to formally report the incident
in their station blotter. 23

The "Brief for All of the Accused-Appellants" filed by Atty. Napoleon U. Galit and the "Brief
for Appellants Ernesto Tumbagahan and Hilario Cajilo" submitted by Atty. Joselito R.
Enriquez merely repeated the facts as narrated by the trial court.

Ruling of the Trial Court

Finding the prosecution witnesses and their testimonies credible, the court a quo convicted
the appellants. The killing was qualified to murder because of the aggravating circumstances
of abuse of superior strength and treachery. The trial court ruled that there was a notorious
inequality of forces between the victim and his assailants, as the latter were greater in
number and armed with guns. It further ruled that abuse of superior strength absorbed
treachery, as it ratiocinated:

"Certain cases," an authority wrote, "involving the killing of helpless victim by

assailants superior to them in arms or numbers, or victims who were
overpowered before being killed, were decided on the theory that the killing
was treacherous, when perhaps the correct qualifying circumstance would be
abuse of superiority. In these cases the attack was not sudden nor unexpected
and the element of surprise was lacking." (Id., I Aquino, pp. 423-424). In the
instant case, we earlier ruled that the qualifying treachery should be
considered as an exception to the general rule on treachery because it was not
present at the inception of the attack. The killing was not sudden nor
unexpected and the element of surprise was lacking. It is for this reason that
we hold that alevosia should be deemed absorbed or included in abuse of
superiority. Even assuming ex-gratia argumenti that it should be the other way
around, the situation will not be of help, penaltywise, to the accused. 24

The defenses raised by the appellants were dismissed and their witnesses declared unworthy
of belief for the following reasons:

1. It was highly improbable that Defense Witness Tesnado would not tell his
wife (Dory) and Bebelinia Ilisan Sacapaño about the incident he had allegedly
witnessed, more so when Sacapaño was the victim's first cousin.
 2. The spot report prepared by Station Commander Oscar M. Montero, the
testimonies of Cajilo and Tumbagahan and the medical findings of Dr. Flores
contradicted one another on the following details: the caliber of the gun used
in shooting the victim, the wounds inflicted and the whereabouts of Cawaling
during the shoot-out.

3. Cawaling and his men, armed with guns, could have immediately disarmed
the victim at the initial encounter. The court could not understand why the
victim was able to fire his gun, run, then stop and again fire his gun, without
being caught.

4. The positive identification made by the prosecution witnesses prevails over

the alibi posed by De los Santos and Fontamillas, a defense that was not
corroborated by any other witness.

5. The .38 caliber revolver, allegedly owned by the victim, was in fact owned
and used by Alex Batuigas.

6. The defense presented a photo and a sketch to prove that Imelda Ilisan
Tumabagahan had an obstructed view of the killing. The trial court ruled that
such evidence was misleading, because the window, from where said witness
allegedly saw the incident, was at the eastern side of her house, and thus
afforded a clear view of the incident, while the window referred to by the
defense was at the southern portion.

7. The questioned testimonies of Dr. Flores, Nelson Ilisan and Provincial

Prosecutor Pedro Victoriano, Jr., though not formally offered as evidence, may
be admitted because of the failure of the defense to object thereto at the time
they were called to testify.

8. The defense failed to prove that the prosecution witnesses had any ill motive
to testify falsely against the appellant.

9. Appellants had a motive to kill the victim. Nelson Ilisan testified that his
brother Ronie (the victim) had witnessed Bonifacio Buenaventura (a former
chief commander of the San Jose Police Force) kill a certain Ruben Ventura.
Cawaling, who was Buenaventura's first cousin, wanted Ronie dead, because
the latter had not followed his instruction to leave town to prevent him from
testifying in said case.

Assignment of Errors

The appellants, through their common counsel, Atty. Napoleon Galit, assign the following
errors to the lower court:

1. The trial court gravely erred in sustaining prosecutor's theory of conspiracy

and thus renders nugatory or has totally forgotten that policemen when in
actual call of duty normally operate in group but not necessarily in conspiracy.

2. The trial court gravely erred in believing the theory of the prosecution that
accused-appellant Ulysses Cawaling was one of the alleged co-conspirators in
the killing of the deceased Ronnie Elisan.

3. The trial court gravely erred in not believing the defense of accused-
appellant Ulysses Cawaling that he has nothing to do with the shooting
incident except to shout to arrest the accused[,] which prompted his co-
accused policemen to chase the accused and sho[o]t him when he resisted,
after he fired at Mayor Cawaling.

4. The trial court gravely erred in not giving weight to accused-appellant

policemen['s] testimonies which carry the presumption of regularity.

5. The trial court gravely erred in not acquitting all the accused-appellants by
applying "the equipoise rule" thereby resulting [i]n reasonable doubts on the
guilt. 25

In their joint brief, 26 Appellants Tumbagahan and Cajilo cite these other errors:
 1. The trial court gravely erred in relying on the theory of the prosecution that
accused-appellants Ernesto Tumbagahan and Hilario Cajilo were alleged co-
conspirators in the killing of the victim, Ronie Ilisan.

2. The trial court gravely erred in not believing the defense that herein
accused-appellants merely did a lawful duty when the shooting incident
happened which led to the death of Ronnie Ilisan.

3. The trial court gravely erred in not acquitting herein accused-appellants by

applying the equipoise rule, thereby resulting in reasonable doubt on their
guilt.

4. Prescinding from the foregoing, herein accused-appellants do press and

hold, that the lower court committed grave, serious and reversible error in
appreciating the qualifying circumstance of treachery (alevosia).

5. The lower court committed grave, serious and reversible error in convicting
both accused-appellants of murder, instead merely of homicide, defined and
penalized under the Revised Penal Code.

6. The lower court committed grave, serious and reversible error in

appreciating the qualifying circumstance of taking advantage of superior
strength.

7. The consummated crime being merely homicide, the mitigating

circumstance of voluntary surrender should be considered to lower the penalty
of homicide.

8. The lower court committed error in not considering double jeopardy.

9 The lower court committed error in not dismissing the case for want of
jurisdiction. 27

Appellant Cawaling imputes these additional errors to the court a quo:

1. The trial court gravely erred in not acquitting herein accused-appellant,

Ulysses M. Cawaling, considering that he had no part in the killing and the
prosecution failed to prove his guilt beyond reasonable doubt;

2. The trial court gravely erred in not finding the shooting incident a result of
hot pursuit and shoot-out between the deceased Ronnie Ilisan and the police
officers in the performance of their duty and self-defense, and in sustaining the
prosecution's conspiracy theory;

3. The trial court gravely erred in not acquitting Accused-Appellant Ulysses M.

Cawaling considering that there was blatant absence of due process in the
proceedings tantamount to mistrial. 28

This Court's Ruling

We affirm the conviction of the appellants. In so ruling, we will resolve the following issues:
(1) jurisdiction of the trial court, (2) double jeopardy, (3) credibility of prosecution witnesses
and their testimonies, (4) self-defense, (5) performance of lawful duty, (6) alibi, (7) conspiracy,
(8) rule on equipoise, (9) qualifying circumstances, (10) damages and (11) attending
circumstances as they affect the penalty.

We shall address the first two issues as important preliminary questions and discuss the
merits of the remaining ones, which we have culled from the errors cited by the appellants in
their aforementioned briefs.

First Issue:

Jurisdiction of the Trial Court

Appellants Tumbagahan and Cajilo argue that the trial court erred when it assumed
jurisdiction over the criminal case. They insist that the Sandiganbayan, not the regular
courts, had jurisdiction to try and hear the case against the appellants, as they were public
officers at the time of the killing which was allegedly committed by reason of or in relation to
their office.

We do not agree.

The jurisdiction of a court to try a criminal case is determined by the law in force at the time
of the institution of the action. Once the court acquires jurisdiction, it may not be ousted from
the case by any subsequent events, such as a new legislation placing such proceedings
under the jurisdiction of another tribunal. The only recognized exceptions to the rule, which
find no application in the case at bar, arise when: (1) there is an express provision in the
statute, or (2) the statute is clearly intended to apply to actions pending before its
enactment. 29

The statutes pertinent to the issue are PD 1606, as amended; 30 and PD 1850, as amended by
PD 1952 and BP 129.

Sec. 4 of PD 1606 31 reads:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

xxx xxx xxx

(2) Other offenses or felonies committed by public

officers and employees in relation to their office,
including those employed in government-owned
or controlled corporations, whether simple or
complexed with other crimes, where the penalty
prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or
a fine of P6,000.00: PROVIDED, HOWEVER, that
offenses or felonies mentioned in this paragraph
where the penalty prescribed by law does not
exceed prision correccional or imprisonment for
six (6) years or a fine of P6,000.00 shall be tried by
the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court and Municipal Circuit
Trial Court.

xxx xxx xxx

However, former President Ferdinand Marcos issued two presidential decrees placing the
members of the Integrated National Police under the jurisdiction of courts-martial. Section 1
of PD 1952, 32 amending Section 1 of PD 1850, reads:

Sec. 1. Court Martial Jurisdiction over Integrated National Police and Members
of the Armed Forces. Any provision of law to the contrary notwithstanding —
(a) uniformed members of the Integrated National Police who commit any
crime or offense cognizable by the civil courts shall henceforth be exclusively
tried by courts-martial pursuant to and in accordance with Commonwealth Act
No. 408, as amended, otherwise known as the Articles of War; (b) all persons
subjects to military law under Article 2 of the aforecited Articles of War who
commit any crime or offense shall be exclusively tried by courts-martial or
their case disposed of under the said Articles of War; Provided, that, in either
of the aforementioned situations, the case shall be disposed of or tried by the
proper civil or judicial authorities when court-martial jurisdiction over the
offense has prescribed under Article 38 of Commonwealth Act Numbered 408,
as amended, or court-martial jurisdiction over the person of the accused
military or Integrated National Police personnel can no longer be exercised by
virtue of their separation from the active service without jurisdiction having
duly attached beforehand unless otherwise provided by law:

PROVIDED FURTHER, THAT THE PRESIDENT MAY, IN THE INTEREST OF

JUSTICE, ORDER OR DIRECT, AT ANY TIME BEFORE ARRAIGNMENT, THAT A
PARTICULAR CASE BE TRIED BY THE APPROPRIATE CIVIL COURT.

As used herein, the term uniformed members of the Integrated National Police
shall refer to police officers, policemen, firemen, and jail guards.
On the other hand, the jurisdiction of regular courts over civil and criminal cases was laid
down in BP 129, the relevant portion of which is quoted hereunder:

Sec. 20. Jurisdiction in Criminal Cases. — Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of
any court, tribunal or body, except those now falling under the exclusive and
concurrent jurisdiction of the Sandiganbayan which shall hereafter be
exclusively taken cognizance of by the latter. 33

In relation to the above, Section 4-a-2 of PD 1606, as amended by PD 1861, quoted earlier,
lists two requisites that must concur before the Sandiganbayan may exercise exclusive and
original jurisdiction over a case: (a) the offense was committed by the accused public officer
in relation to his office; and (b) the penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or higher than a fine of six thousand pesos
(P6,000). 34 Sanchez vs. Demetriou 35 clarified that murder or homicide may be committed both
by public officers and by private citizens, and that public office is not a constitutive element
of said crime, viz.:

The relation between the crime and the office contemplated by the Constitution
is, in our opinion, direct and not accidental. To fall into the intent of the
Constitution, the relation has to be such that, in the legal sense, the offense
cannot exist without the office. In other words, the office must be a constituent
element of the crime as defined in the statute, such as, for instance, the crimes
defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal
Code.

Public office is not the essence of murder. The taking of human life is either
murder or homicide whether done by a private citizen or public servant, and
the penalty is the same except when the perpetrator, being a public
functionary, took advantage of his office, as alleged in this case, in which
event the penalty is increased.

But the use or abuse of office does not adhere to the crime as an element; and
even as an aggravating circumstance, its materiality arises, not from the
allegations but on the proof, not from the fact that the criminals are public
officials but from the manner of the commission of the crime.

Furthermore, the Information filed against the appellants contains no allegation that
appellants were public officers who committed the crime in relation to their office. The charge
was for murder, a felony punishable under Article 248 of the Revised Penal Code. As clarified
in Aguinaldo, et al. vs. Domagas, et al., 36 "[I]n the absence of such essential allegation, and
since the present case does not involve charges of violation of R.A. No. 3019 (the Anti-Graft
etc. Act), the Sandiganbayan does not have jurisdiction over the present case. (Bartolome vs.
People, 142 SCRA 459 [1986]) Even before considering the penalty prescribed by law for the
offense charged, it is thus essential to determine whether that offense was committed or
alleged to have been committed by the public officers and employees in relation to their
offices."

Jurisdiction is determined by the allegations in the complaint or information. 37 In the absence

of any allegation that the offense was committed in relation to the office of appellants or was
necessarily connected with the discharge of their functions, the regional trial court, not the
Sandiganbayan, has jurisdiction to hear and decide the case. 38

Second Issue:

Double Jeopardy

In seeking their acquittal, Appellants Tumbagahan and Cajilo also invoke their right against
double jeopardy. They argue that the first jeopardy attached when a criminal case for murder
was filed before the Judge Advocate General's Office (JAGO), which was allegedly dismissed
after several hearings had been conducted. 39 We are not persuaded.

There is double jeopardy when the following requisites are present: (1) a first jeopardy has
attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a
second jeopardy is for the same offense as that in the first. And the first jeopardy attaches
only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when
a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the
case was dismissed or otherwise terminated without his express consent. 40
For a better appreciation of appellants' argument, we must consider PD 39 41 and its
implementing rules, 42which prescribe the procedure before a military commission. A
summary preliminary investigation shall be conducted before trial for the purpose of
determining whether there is prima facie evidence to pursue trial before a military
commission. The investigation report shall contain a summary of the evidence, the acts
constituting the offense or offenses committed, and the findings and recommendations of the
investigating officer. Thereafter, the report shall be forwarded to the judge advocate general,
who shall determine for either the defense secretary or for the AFP chief of staff whether the
case shall be referred for trial to a military commission. 43 Where a prima facie case is found
against the accused, formal charges shall be signed by a commissioned officer designated
by the judge advocate general. 44 The accused shall then be arraigned, during which the
charge and specification shall be read and the accused shall enter his plea. 45After hearings, a
record of the trial shall be forwarded to the AFP chief of staff for proper action. 46

In the present case, the appellants have presented no sufficient and conclusive evidence to
show that they were charged, arraigned and acquitted in a military commission, or that the
case was dismissed therein without their consent. The defense merely offered as evidence
certain disposition forms 47 and a
letter, 48 dated March 8, 1983, recommending that the case against Appellants Tumbagahan,
Cajilo and De los Santos be dropped and considered closed. 49 No charge sheet and record of
arraignment and trial were presented to establish the first jeopardy.

As pointed out by the solicitor general, "appellants were never arraigned, they never pleaded
before the Judge Advocate General's Office, there was no trial, and no judgment on the
merits had been rendered." 50

Third Issue:

Credibility of Witnesses

As a general rule, the factual findings of trial courts deserve respect and are not disturbed on
appeal, unless some facts or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted, and would otherwise materially affect the disposition of
the case. 51 This rule, however, does not apply when the judge who penned the decision was
not the same one who had heard the prosecution witnesses testify, 52 as in the present case.
Nonetheless, we have carefully perused and considered the voluminous records of this case,
and we find no reason to alter the findings of the court a quo in regard to the credibility of the
prosecution witnesses and their testimonies.

Vicente Ilisan, the victim's brother, narrated before the trial court the circumstances relevant
to the crime:

Q. In the evening of December 4, 1982, at about 8:00 or 8:30,

where were you?

A. I was inside the restaurant of Andres Fontamillas.

xxx xxx xxx

Q. What were you doing there?

A. I was drinking tuba.

Q. When you were about to finish drinking tuba, what did you
do?

A. I stood up preparing to go home.

Q. Were you able to leave that restaurant actually?

A. No, sir.

Q. Why?

A. Luz Venus told us not to go out when [I] stood up to go home.

Q. Do you know why you were advise[d] not to go out?

A. Yes, sir.

Q. Why?

A. Because we were being watched by Mayor Cawaling, Andres

Fontamillas, Hilario Cajilo and Alex Bat[ui]gas.

xxx xxx xxx

Q. When you were informed by Luz Venus that you should not
go out because Mayor Cawaling and the persons you mentioned
were outside watching for you, what did you do?

A. We did not go out.

Q. Since you remained inside, what did you do?

A. I also viewed thru the window.

Q. Did you see them?

A. Yes, sir.

Q. How far were they from the restaurant?

A. About three meters.

Q. What were they doing outside the restaurant?

A. They were also viewing us.

Q. For how long did they remain there viewing you?

A. Just a short time.

Q. And later on, do you know where did they go? [sic]

A. No, sir. I went out from the restaurant and when I went out, I
did not see them anymore.

Q. Before you went out of the restaurant, what did you do?

A. Diosdado Venus accompanied us.

Q. Why did you ask Diosdado Venus to accompany you?

A. Yes, sir. Because we were aware that we were being watched

from outside so we asked to be accompanied by Diosdado
Venus.

Q. From the restaurant accompanied by Diosdado Venus, what

did you do?

A. Towards home.

Q. Were you able to reach home?

A. No, sir.

Q. Why, what happened on the way?

A. Diosdado Venus ran going back because we were lighted by a

flashlight.

Q. How many flashlight[s] were trimed [sic] to you?

A. Six.

Q. Did you come to know who trimed [sic] the flashlight towards
you?

A. Yes, sir.

Q. Who were they?

A. Mayor Cawaling, Andres Fontamillas, Hilario Cajilo, Ernesto

Tumbagahan, Ricardo delos Santos and Alex Batuigas.

Q. How were you able to recognize them when that was night
time?

A. Because the flashlight[s] were bright.

Q. When Diosdado Venus ran back to his restaurant, what did

your brother Ronie Elisan and you do?

A. We also ran towards home.

Q. To whose house?

A. That of my older sister Imelda [E]lisan.

Q. Were you able to reach that house?

A. No, sir.

Q. Why, what happened when you ran away?

A. Andres Fontamillas and Hilario Cajilo were blocking us on the

gate of the fence of my sister's house.

Q. Since your way was blocked, where did Ronie Elisan go?

A. We ran towards the ricefield.

Q. When you ran, what did Mayor Cawaling do?

A. They were chasing us.

Q. What about Alex Batuigas, what did he do?

A. He also followed helping chasing us. [sic]

Q. What about the four policemen, what did they do?

A. The same. They were also chasing us.

Q. About how far is that restaurant [from] the spot where you
were first lighted by the flashlight of the accused?

A. About one hundred meters.

Q. Now, according to you, you ran towards the ricefield, what

happened while you were running towards the ricefield?

A. I saw my brother fell [sic] down.

Q. Fell down where?

A. On the ricefield.
 Q. What about you, where were you when your brother fell down
in the ricefield?

A. I ran towards the bushes.

Q. What did you do upon reaching the bushes?

A. I la[y] on the ground with my belly touch[ing] on the ground

behind the coconut tree.

Q. When your brother according to you had fallen on the

ricefield, what did he do thereafter?

A. He rose up, [raised] his hands and surrender[ed] to them.

Q. In rising, what was his position?

A. He was rising like this. (Witness demonstrating by kneeling

[and] raising his two hands).

Q. While Ronie Elisan was kneeling and raising both of his

hands, what happened?

A. Mayor Cawaling approached him together with the four

policemen and his brother-in-law and they shot him.

Q. Do you know what weapon[s] were used in shooting your

brother?

A. Yes, sir.

Q. What weapon were used?

A. The weapon of Mayor Cawaling is .45 caliber and that of

Andres Fontamillas and Hilario Cajilo were both armalite and
that of Ernesto Tumbagahan, Alex Batuigas and Ricardo delos
Santos were .38 caliber.

Q. How were you able to identify their weapons?

A. Because the flashlight[s] were bright.

Q. Now, what happened to your brother when he was fired upon

by the accused in this case?

A. He fell down.

Q. And how far is that spot where your elder brother had fallen
down to the spot where Diosdado Venus left you when he
returned to the restaurant?

A. To my estimate it is about 300 meters.

Q. After your brother had fallen down, what did the accused do?

A. Mayor Cawaling said, ["]you left him, he is already dead.["]

Q. Where did they go?

A. They went towards the house of Mayor Cawaling. 53

Imelda Tumbagahan was at home feeding her child when she heard her brother Ronie
shouting for help. After getting a flashlight and looking through the window of her house, she
saw Cawaling and Alex Batuigas chasing Ronie who was running towards her house.
Tumbagahan and De los Santos prevented Ronie from entering the fence of her house, as a
result of which, her brother ran towards a rice field nearby. There, on bended knees and with
hands raised, Ronie was shot by Cawaling and his men. 54
Nelson Ilisan also heard his younger brother Ronie shouting for help while being chased by
the group of Cawaling. As Cajilo and Fontamillas blocked Ronie from entering the gate of
Imelda's house, the victim ran towards a rice field. Nelson stopped Cawaling and asked,
"Nong, basi guinalagas ninyo and acon hali?(Nong, why do you chase my brother?)" But the
mayor merely continued chasing Ronie. Thereafter, Nelson saw his brother, on his knees with
both hands raised, shot by appellants. 55

The three aforementioned witnesses narrated in detail the assault against their brother Ronie
and positively identified the appellants as the perpetrators. The trial court cannot be faulted
for relying on their testimonies and accepting them as true, 56 especially when the defense
failed, to prove any ill motive on their part. 57 In addition, family members who have witnessed
the killing of their loved one usually strive to remember the faces of the assailants. 58 Thus,
the relationship per se of witnesses with the victim does not necessarily mean that the former
are biased. On the contrary, it is precisely such relationship that would impel them to seek
justice and put the real culprit behind bars, rather than impute the offense to the innocent. 59

Appellant Cawaling submits that the prosecution witnesses tampered with the evidence by
cleaning the cadaver before an autopsy could be done. "Such irregular washing of the
cadaver by a close relative of the deceased, who is educated and who presumably knew
perfectly well the need to preserve it in its original state for the medico-legal examination[,] is
highly suspicious. It points to the fact that the relatives of the deceased wanted to hide, or
erase something that would bolster and assist the defense (that is, state of drunkenness,
powder burns or lack thereof, indicating the firing of a weapon or the proximity of the weapon
used on the deceased, etc.)." 60

Such contention is unavailing. First, Bebelinia Sacapaño merely cleaned the cadaver and
made no further examination. Second, appellants had an opportunity to have the body
examined again to determine or prove important matters, such as whether Ronie was drunk,
if he fired a gun, how many and what caliber of guns were used in shooting him; they did not,
however, avail themselves of this opportunity. As public officers, appellants knew that it was
within their power to request or secure from the court, or any other competent authority, an
order for another autopsy 61 or any such evidence as may affirm their innocence. Third, their
conviction lies in the strong and convincing testimonial evidence of the prosecution, not in
the corroborative testimony of Bebelinia Sacapaño.

Relying on the testimonies of Luz Venus and Gil Palacio, Appellant Cawaling also pointed out
that "[t]he power of observation of alleged eyewitness Vicente was severely affected by his
intoxication. It may be inferred that an intoxicated person's sense[s] of sight and hearing and
of touch are less acute than those of a sober person and that his observation are inexact as
to what actually occurred." 62

This argument is not persuasive. The evidence presented fails to show that Vicente was so
intoxicated that night as to affect his powers of observation and retrospection. Defense
Witness Palacio merely saw the witness drinking tuba on the night of the killing. 63 Meanwhile
the whole testimony of Luz on the matter mainly reveals that Ronie was the person she was
referring to as drunk, as shown by this portion: 64

Q When Ronie and Vicente both surnamed Ilisan entered the C &
J-4 kitchenette what if any did you observe?

A I saw them so dr[u]nk (Nakita ko sila lasing na lasing).

Q Who was lasing na lasing or so dr[u]nk?

A Ronie Ilisan sir.

Granting that Vicente was drunk, the conviction of the appellants is still inevitable in view of
the positive declarations of Witnesses Nelson and Imelda, who unequivocally identified
appellants as perpetrators of the senseless killing of their brother Ronie.

Appellant Cawaling also questions the trial court's reliance on the testimonies of Dr.
Blandino Flores, 65Nelson Ilisan 66 and Prosecutor Pedro Victoriano, Jr., 67 for failure of the
prosecution to offer them as evidence. In People vs. Java, 68 this Court ruled that the
testimony of a witness, although not formally offered in evidence, may still be admitted by the
courts, if the other party does not object to its presentation. The Court explained: "Section 36
of [Rule 132] requires that an objection in the course of the oral examination of a witness
should be made as soon as the grounds therefor shall become reasonably apparent. Since no
objection to the admissibility of evidence was made in the court below, an objection raised
for the first time on appeal will not be considered." In the present case, a cursory reading of
the stenographic notes reveals that the counsel for the appellants did not raise any objection
when said witnesses testified on the matters now being impugned. Moreover, they repeatedly
cross-examined the witnesses, which shows that they had waived their objections to the said
testimonies of such witnesses.

Lastly, Appellant Mayor Cawaling questions the motive of Prosecutor Pedro Victoriano Jr.
This contention is likewise bereft of merit. Unlike judges who are mandated to display cold
neutrality in hearing cases, 69prosecutors are not required to divest themselves of their
personal convictions and refrain from exhibiting partiality. In this case, there is reasonable
ground for Prosecutor Victoriano to believe that an offense has been committed and that the
accused was probably guilty thereof. 70 Under the circumstance, it is his sworn duty to see
that justice is served. 71 Thus, "[h]e may prosecute with earnestness and vigor — indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one." 72 Further,

Under the prevailing criminal procedure, the fiscal's sphere of action is quite
extensive, for he has very direct and active intervention in the trial, assuming
as the Government's representative the defense of society, which has been
disturbed by the crime, and taking public action as though he were the injured
party, for the purpose of securing the offender's punishment, whenever the
crime has been proved and the guilt of the accused as the undoubted
perpetrator thereof established. 73

Fourth Issue:

Self-Defense

To escape criminal liability, the appellants also invoke the justifying circumstances of self-
defense and lawful performance of duty. 74 Allegedly, Ronie was firing his gun and shouting.
"Guwa ang maisog! (Come out who is brave!)." Then the mayor and the policemen arrived at
the scene to pacify him. Ronie fired at them, which forced them to chase him and return fire.

We find this scenario bereft of plausibility.

Unlawful aggression on the part of the victim is a condition sine qua non for the successful
invocation of self-defense. 75 As factually found by the trial court, unlawful aggression did not
start with the victim, but rather with the appellants. Cawaling and his men proceeded to the C
& J-4 Kitchenette and waited for Ronie to come out. When the victim did, they chased and
shot him without giving him any opportunity to defend himself.

Granting arguendo the veracity of the defense's factual version, it is important to note that
appellants admitted that Ronie was running away from them when they chased and shot him.
Thus, unlawful aggression — assuming it was initially present — had ceased, and the
appellants no longer had any right to pursue the offender. Basic is the rule that when
unlawful aggression ceases, the defender no longer has the right to kill or even wound the
former aggressor. Upon the cessation of the unlawful aggression and the danger or risk to
life and limb, there should be a corresponding cessation of hostilities on the part of the
person defending himself. 76

Furthermore, the means employed to ward off the attack was unreasonably excessive. Being
armed, the appellants could have easily ordered the victim to surrender. Even the first shot at
his shoulder would have been sufficient to immobilize him, yet they fired a succession of
shots at him while he was in no position to put up a defense.

Jurisprudence teaches that when an accused admits having committed the crime but invokes
self-defense to escape criminal liability, the burden of proof is reversed and shifted to him.
He must then prove the elements of self-defense. 77 It necessarily follows that he must now
rely on the strength of his own evidence and not on the weakness of that of the prosecution;
for even if the latter evidence were weak, it could not be disbelieved after the accused has
admitted the
killing. 78 Thus, appellants must establish with clear and convincing evidence that the killing
was justified, and that they incurred no criminal liability therefor. 79 They failed to do so, and
their conviction thus becomes inevitable. 80

Fifth Issue:
 Lawful Performance of Duties

Appellants contend that the killing of Ronie resulted from the lawful performance of their
duties as police officers. However, such justifying circumstance may be invoked only after
the defense successfully proves that (1) the accused acted in the performance of a duty, and
(2) the injury or offense committed is the necessary consequence of the due performance or
lawful exercise of such duty. 81 These two requisites are wanting in this case.

The appellants, except Mayor Cawaling, were men in uniform who happened to be on duty
when they killed Ronie. The victim was nor committing any offense at the time. Killing the
victim under the circumstances of this case cannot in any wise be considered a valid
performance of a lawful duty by men who had sworn to maintain peace and order and to
protect the lives of the people. As aptly held in People vs. De la Cruz, 82"Performance of duties
does not include murder." That Ronie was a troublemaker in their town is not an excuse; as the
Court declared in the same case of People vs. De la Cruz, "Murder is never justified, regardless of
the victim."

Sixth Issue:

Alibi

We likewise brush aside the defenses of alibi and denial raised by Appellant De los Santos.
Prosecution witnesses positively identified him and Fontamillas as part of the group which
chased and shot Ronie Ilisan. It is elementary that alibi and denial are outweighed by positive
identification that is categorical, consistent and untainted by any ill motive on the part of the
eyewitness testifying on the matter. Alibi and denial, if not substantiated by clear and
convincing evidence, are negative and self-serving evidence undeserving of weight in law. 83

In fact, De los Santos failed to establish with clear and convincing evidence that it was
physically impossible for him to have been at the scene of the crime during its
commission. 84 The evidence he had presented demonstrated only that, at the time, he was
sleeping in his house, which was near the locus criminis.

Alibi is always considered with suspicion and received with caution, not only because it is
inherently weak and unreliable, but also because it is easily fabricated and concocted. 85 It is
therefore incumbent upon the appellant to prove that he was at another place when the felony was
committed, and that it was physically impossibie for him to have been at the scene of the crime at
the time it was committed. 86 This he failed to prove.

Seventh Issue:

Conspiracy

The trial court correctly appreciated the presence of conspiracy. Conspiracy exists when two
or more persons come to an agreement concerning the commission of a felony and decide to
commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their
lawless plans and plots. The agreement to commit a crime, however, may be deduced from
the mode and manner of the commission of the offense or inferred from acts that point to a
joint purpose and design, concerted action, and community of intent. 87It does not matter who
inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal
liability. 88 We concur with the trial court's elucidation:

All of the accused chased the victim and his brother; four (4) of whom blocked
their ways, first, to their elder brother Nelson Elisan's house and, second, to
their elder sister Imelda Elisan Tumbagahon's house. Having changed course
by proceeding to the ricefield in their desperate attempt to evade the accused,
all the six (6) armed accused continued their pursuit. Their victim, having fallen
on the rice paddy, and rising and kneeling on it with raised hands, all the said
accused with their flashlights beamed on their victim, in a united and
concerted manner, shot him. After Ronie Elisan had fallen down, co-accused
Mayor Cawaling was even heard as saying "(Y)ou left [sic] him, he is already
dead." . . . . 89

Eighth Issue:

Equipoise Rule

We reject appellants' position that the equipoise rule should apply to this case. 90 In People vs.
Lagnas, 91 the Court, through Mr. Justice Florenz D. Regalado, described this rule as follows:
 Once again, albeit in effect a supportive and cumulative consideration in view
of the preceding disquisition, the equipoise rule finds application in this case,
that is, 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.

In this case, the inculpatory facts point to only one conclusion: appellants are guilty. As
amplified in the discussion above, the Court agrees with the trial court that the guilt of the
appellants was proven beyond reasonable doubt.

Ninth Issue:

Murder or Homicide?

The Information alleges three qualifying circumstances: treachery, evident premeditation and
taking advantage of superior strength. If appreciated, any one of these will qualify the killing
to murder. However, Appellants Tumbagahan and Cajilo posit that there was no treachery,
reasoning that Ronie was not an unsuspecting victim, as he had been forewarned by
Diosdado Venus of the presence of the appellants inside the restaurant, and there had been a
chase prior to the killing. Further, they contend that abuse of superior strength is deemed
absorbed in treachery, and that "the addition of abuse of superior strength to qualify the case
to murder is nothing more than mere repetition — a legal chicanery, so to say. Similarly,
where treachery is not proved, there can be no abuse of superior strength, vice-versa." 92

We partly agree.

Treachery exists when the malefactors employ means and methods that tend directly and
especially to insure their execution without risk to themselves arising from the defense which
the victims might make. The essence of treachery is the sudden and unexpected attack
without the slightest provocation on the part of the person attacked. 93 While we do not
disregard the fact that the victim, together with his brother Vicente, was able to run towards a rice
field, we still believe that treachery attended the killing.

In People vs. Landicho, 94 we ruled that treachery might still be appreciated even when the victim
was warned of danger to his person, for "what is decisive is that the execution of the attack made
it impossible for the victim to defend himself or to retaliate."

The appellants waited for Ronie to come out of the restaurant. All of them chased the victim
and prevented him from seeking refuge either in the house of his sister Imelda or that of his
brother Nelson. All of them carried firearms and flashlights. They fired their guns at the victim
while he was on his knees with arms raised, manifesting his intention not to fight back.

We cannot appreciate the aggravating circumstance of abuse of superior strength, however,

as we have consistently ruled that it is deemed absorbed in treachery. 95

We also affirm the finding of the trial court that the prosecution failed to prove the attending
circumstance of evident premeditation. To prove this aggravating circumstance, the
prosecution must show the following: (1) the time when the offender determined to commit
the crime; (2) an act manifestly indicating that the offender clung to his determination; and (3)
a lapse of time, between the determination to commit the crime and the execution thereof,
sufficient to allow the offender to reflect upon the consequences of his act. 96Nothing in the
records shows how and when the plan to kill was hatched, or how much time had elapsed before
it was carried out.

Tenth Issue:

Damages

The trial court awarded the following: (a) P50,000.00, as civil indemnity; (b) P6,000.00, as
actual damages; and (c) P116,666.66, for lost earnings. In computing the latter, the trial court
used the following formula:

Total annual net income = 10% x total annual gross income

= .10 x P25,000.00

= P2,500.00.
 xxx xxx xxx

Loss of earning capacity of Ronie Elisan = 2/3 (90-20) x P2,500.00 =

P116,666.66. 97

Consistent with jurisprudence, we affirm the ruling of the trial court awarding the amount of
P50,000 as civil indemnity to the heirs of the victim. 98

We cannot do the same to the award of actual damages and lost earnings, however. The
award of actual damages has no basis, as no receipts were presented to substantiate the
expenses allegedly incurred. An alleged pecuniary loss must be established by credible
evidence before actual damages may be awarded. 99Similarly erroneous is the award for loss of
100
earning capacity, which should be computed as follows:

2/3 x [80 — age of victim at the time of death] x [reasonable portion of the
annual net income which would have been received as support by heirs]

As testified to by Nelson Ilisan, the deceased had been earning an average of P100 daily or
P3,000 monthly. 101 From this monthly income must be deducted the reasonable amount of P1,000
representing the living and other necessary expenses of the deceased. Hence, the lost earnings of
the deceased should be computed as follows:

= 2/3 x [80 - 22] x [P24,000]

= 2/3 x [58] x [P24,000]

= 2[P1,392,000]

= P2,784,000

= P928,000.

Eleventh Issue:

Aggravating and Mitigating Circumstances

Prior to the amendment of Section 248 of the Revised Penal Code, 102 the imposable penalty for
murder was reclusion temporal in its maximum period to death. In their Brief, Appellants Cajilo
and Tumbagahan argue for the imposition of the lower penalty of reclusion temporal, contending
that their filing of bail bonds/property bonds, before the order for their arrest was issued, should
be treated as voluntary surrender. 103

We cannot accept this contention. In the first place, it has no factual basis. The warrant for
the arrest of herein appellants was issued on August 18, 1987, 104 but appellants' counsel filed
the Urgent Motion for Bail only thereafter, on September 2, 1987. 105 In the second place,
appellants failed to prove the requisites for voluntary surrender, which are: (1) the offender has
not been actually arrested; (2) the offender surrenders himself to a person in authority or to the
latter's agent; and (3) the surrender is voluntary. 106 The records reveal that a warrant of arrest was
actually served on Tumbagahan and Cajilo 107 on September 2, 1987 and that they were in fact
detained. 108

In view of the absence of any other aggravating or mitigating circumstance, the trial court
correctly imposed reclusion perpetua.

WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED with the
following MODIFICATIONS: (1) the award of P6,000 as actual damages is DELETED, and (2)
the award for loss of earning capacity is INCREASED to P928,000. Costs against appellant.

SO ORDERED.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ. concur.

FIRST DIVISION
SPS. ALBERTO and JOCELYN G.R. No. 157593

AZANA,

Petitioners, Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

- v e r s u s - CORONA,

AZCUNA and
GARCIA, JJ.

CRISTOPHER LUMBO and

ELIZABETH LUMBO-JIMENEZ,

Respondents. Promulgated:

March 22, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CORONA, J.:

In this appeal by certiorari, spouses Alberto and Jocelyn Azana assail the
decision[1] dated September 17, 2002 and resolution[2] dated March 12, 2003 of
the Court of Appeals (CA) in CA-G.R. CV No. 60973. After a re-evaluation of the
evidence on record, the appellate court held that the trial courts factual findings
were contrary to the evidence presented and, on that basis, reversed the latters
ruling.

Originally, respondents filed an action for quieting of title[3] in the Regional Trial
Court (RTC) of Kalibo, Aklan. The subject matter of the action was a piece of real
property located in the island of Boracay, a prime tourist destination. It was
designated as Lot 64 during the national reservation survey of Boracay on April
14, 1976.

Respondents alleged that they were the owners of Lot 64. They claimed
that, in a deed of absolute sale dated December 1, 1996, the spouses Emilio and
Estela Gregorio sold Lot 64 to petitioners. This cast a cloud over their title.

To support their claim of ownership, respondents stated that Lot 64 was

originally part of the 8.0488-hectare land bought in a public auction by their
parents, which they inherited entirely; that such sale in the public auction was
evidenced by a final bill of sale dated September 18, 1939; that Lot 64 was
separately designated during the national reservation survey only because it was
also being claimed by the spouses Gregorio; and that, if Lots 63 and 64 were
combined, the boundaries of the resulting lot coincided with the boundaries of
the lot purchased under the final bill of sale.

For their part, petitioners claim that they purchased Lot 64 from the spouses
Gregorio in good faith; that the spouses Gregorio became the lawful owners of
Lot 64 by virtue of a deed of absolute sale dated March 25, 1976 executed by
Ignacio Bandiola in favor of Estela Gregorio whereby Bandiola transferred to
Gregorio a parcel of land with an area of 3.4768 hectares; and that Lot 64 was
part of this 3.4768-hectare land.

According to the RTC of Kalibo, Aklan, respondents failed to establish the identity
of the lot sold under the final bill of sale. Consequently, their claim of title over
Lot 64 also had to fail. In the words of the court a quo:

Assaying the evidence presented by the parties in relation to

their respective submissions, the Court noted that the land acquired by
[respondents] parents at the public auction is not solely bounded on
the North and East by [the] Visayan Sea, but also by Anunciacion Gelito
and Guillermo Sualog, respectively. Indeed, [respondents] own survey
 plan discloses that Lots 63 and 64 [are] bounded by Lot 62 and
seashore.

Hence, it is not clear that the land acquired by [respondents] parents at

an auction sale includes Lot 64. The Court could probably sustain
[respondents] theory if the said land is solely bounded on the North and
East by [the] Visayan Sea or seashore. There would be no space for any
intervening lot.[4] (citations omitted)

Finding equiponderance of evidence[5], the trial court ruled in favor of petitioners

and upheld the validity of the sale of Lot 64 to them.

On review, the CA arrived at a different conclusion. It declared respondents as

owners of Lot 64 and nullified the sale by the spouses Gregorio to petitioners. The
appellate court agreed with respondents that Lot 64 was part of the 8.0488-
hectare property described in the final bill of sale. As opposed to the findings of
the trial court, the appellate court was satisfied that the boundaries of the lot
resulting from the merger of Lots 63 and 64 coincided with the boundaries of the
8.0488 hectare property. Moreover, the CA noted that the areas of Lots 63 and 64
were 7.0300 hectares and 1.2012 hectares respectively, meaning that the area
resulting from the combination of the two lots was equivalent to 8.0000 hectares,
more or less, which [was] the total area being claimed by the [respondents].[6]

Aggrieved, the spouses Gregorio and the spouses Azana filed in this Court
separate petitions for review on certiorari under Rule 45 of the Rules of Court.
The petitions were separately docketed as G.R. No. 157617[7] and G.R. No.
157593, respectively. The Court instantly denied both petitions for essentially
raising questions of fact which are generally beyond our review.

Thereafter, both the Gregorios and petitioners filed their respective motions for
reconsideration. The Court denied the MR[8] of the spouses Gregorio, in effect
denying G.R. No. 157617 with finality.
 Meanwhile, the MR of the spouses Azana was granted. As a general rule,
it is not the Supreme Courts function to review, examine and evaluate or weigh

the probative value of the evidence presented.[9] The factual findings of the
trial and appellate courts are binding on this Court and are given great weight
and respect.[10] However, the rule is not absolute. In instances where there is

divergence in the findings and conclusions of the trial court, on one hand, and
the appellate court, on the other, the Court may give the petition due course
and re-examine the evidence on record.[11] Satisfied that the foregoing

exception applies to this case, the Court ordered the reinstatement of G.R. No.
157593 (this petition).

Respondents oppose the petition on the ground that it is already barred by prior
judgment. They argue that the dismissal of the Gregorios petition (G.R. No.
157617) was a final judgment constituting a bar to the institution of a similar
petition.

Respondents position is incorrect. Res judicata calls for the concurrence of the
following requisites: (1) there is final judgment or order; (2) the court rendering it
has jurisdiction over the subject matter and the parties; (3) the judgment or order
is on the merits and (4) there is, between the two cases, identity of parties,
subject matter and causes of action.[12] Here, the first requisite is absent. The
Courts resolution denying the spouses Gregorios petition is not the final judgment
contemplated by the first requisite. Rather, final judgment entails a decision
which perpetually settles the controversy and lays to rest all questions raised. At
that point, there was no final judgment because the spouses Azanas appeal of the
CA decision was still pending before us. Stated differently, there was yet no final
judgment which could be entered and executed.

We now proceed to consider the documents relied upon by the parties.

To prove their claim, petitioners submitted a deed of absolute sale of real

property[13] dated March 25, 1976 to show that Ignacio Bandiola sold to Estela
Gregorio 3.4768 hectares of land located in Manoc-Manoc, Malay, Aklan. The
property was particularly described as follows:

THE PORTION SOLD CONSISTS of 3.4768 hectares, more or less, located

at the southern side of the whole parcel and with the following
pertinent boundaries: on the North by Visayan Sea and Ernesto
Bandiola; on the East by Visayan Sea; on the South by Felicitas Lumbo,
D. Pelayo, and D. Magapi; and on the West by Teodorica Bandiola.[14]

They also presented the corresponding tax declaration[15] which reiterated the
same property boundaries.

Petitioners point out that a portion of this property was separately declared
for realty tax purposes under ARP/TD No. 93-011-1020/1021 as Lot 64 with an
area of 1.48 hectares.[16] The tax declaration indicated that the boundaries of Lot
64 were:

North: Visayan Sea South: Lot 63

West: lot 99-pt East: Visayan Sea

In the hope of strengthening their case, petitioners narrated the supposed

origin of the disputed property. They claimed that the 3.4768-hectare property
was taken from the consolidated lots owned by Ignacio Bandiola, i.e., three
contiguous parcels of land with individual areas of 8.7766 hectares, 6550 square-
meters and 4994 square-meters.[17] From this land mass, Ignacio Bandiola carved
out 3.4768 hectares and sold the same to Estela Gregorio. Allegedly, this portion
included Lot 64 which Estela Gregorio, in turn, sold to petitioners.

Granting for the sake of argument that petitioners preceding allegations are true,
it follows that Ignacio Bandiolas lots, if taken as one, must have extended to the
Visayan Sea in the east to have roped in Lot 64. It also follows that at least one of
the lots should have the Visayan Sea as its eastern boundary. However, this
conclusion is belied by the tax declarations petitioners themselves presented. Not
one of the tax declarations stated that any of Bandiolas lots was bound in the east
by the Visayan Sea. On the contrary, all the tax declarations stated that each of
the lots was bound in the east by a particular land mass:

Tax Declaration No. 3066

Land Area: 8.7766 hectares

Boundaries: North Visayan Sea

East Lorenzo Lumbo,

Vanancio Maming

West Conchita Tirol, Visayan Sea

South Moises Pelayo, Paula Gelito[18]

Tax Declaration No. 3087

Land Area: 0.6550 hectare

Boundaries: North Visayan Sea

East Felicitas Alag de Lumbo

West Felicitas Alag de Lumbo

South Quirica Lumbo[19]

Tax Declaration No. 3068

Land Area: 0.4994 hectare

Boundaries: North Ignacio Bandiola

 East Anunciacion Gelito and

F.A. Lumbo

West Ignacio Bandiola

South Gertrudes Casimero &

Salvador Magapi[20]

Petitioners strained to explain the discrepancy by pointing out that Lot 64 was but
a mere portion of the three parcels of land covered by the [three] tax
declarations. xxx. It [was] therefore, quite unlikely that Lot 64 would have the
exact same boundaries as any or all of these [three] parcels.[21]

We find their explanation wanting. If, indeed, Lot 64 was part of Ignacio Bandiolas
mass of properties it would have been in its south-east corner, occupying part of
its southern and eastern perimeter. [22] Therefore, the parcels of land covered by
the three tax declarations must reflect southern and/or eastern boundaries
similar to those of Lot 64. But, as explained earlier, none of the lots was enclosed
or partly enclosed in the east by the sea. It is highly unlikely that the corner
portion of the mother property would not have similar boundaries as those of the
latter on at least two sides.

The Court is not inclined to pronounce which of the documents presented

by petitioners is true and correct. It is enough to say that the evidence they
presented cast doubt on the validity of their claim. Petitioners failed to establish,
by preponderance of evidence, the exact perimeters of the land which they claim
as their own.

On the other hand, respondents anchor their claim over Lot 64 on a final bill of
sale[23] dated September 18, 1939. Apparently, the document was executed in
favor of Lorenzo and Felicitas Lumbo who bought an 8.0488-hectare property in a
public auction. It stated:
 That on September 30, 1937, the real property under Tax Declaration
No. 6523 was forfeited to the Government in the manner and form
prescribed by Act 3995 known as the Assessment Law, for non-payment
of land taxes corresponding to the years 1931 to 1937, inclusive, the
description of which follows:

A parcel of cocal land situated in the barrio of

Manocmanoc, municipality of Buruanga, province of Capiz,
Philippines, having an area of 80, 488 square meters more
or less. Bounded on the North by Visayan Sea; on the East
by the property of Guillermo Sualog and Visayan Sea; on
the South by the property of Moises Pelayo; and on the
West by the properties of Venancio Maming and Lucino
Gelito, and assessed at P1040.00. x x x.[24]

The trial court discredited the final bill of sale by highlighting the fact that the
property bought at the public auction was not solely bound on the north and east
by the Visayan Sea but also by the properties of Anuncion Gelito and Guillermo
Sualog, respectively. With this, the trial court deduced that there was an
intervening space which should not have been there if the lot referred to in the
document included Lot 64. Thus, the final bill of sale must pertain to a different
parcel of land.

We find the trial courts conclusion inaccurate. The Gelito and Sualog properties
were not located between the Visayan Sea and the disputed property. Otherwise,
the tax declarations and final bill of sale would have indicated that the Lumbo
property was solely bound in the north by the Gelito property and in the east by
the Sualog property. A cursory look at the survey map[25] reveals that the
perimeter of the Lumbo property ran along the Visayan Sea and Gelitos property
in the north, and the Visayan Sea and Sualogs property in the east. Naturally, the
tax declarations and final bill of sale included the two properties mentioned as
part of the boundaries of the Lumbo property.

Petitioners underscore the seeming irregularities in the description of the

property under the final bill of sale, a deed of sale dated May 20, 1939 and the tax
declarations for the years 1991 and 1993 in the names of respondents. They posit
that these irregularities negate respondents claim of legal or equitable title and
ultimately justify the resolution of the case in their favor.
A deed of absolute sale[26] was executed on May 20, 1939 between Pantaleon
Maming and the respondents parents, stipulating the sale to the Lumbos of an
approximate area of [five hectares], being a part of the land under Tax No. 6523
in the name of Pantaleon Maming.[27] Petitioners emphasize the fact that the
property sold under the final bill of sale was the same lot under Tax Declaration
No. 6523. This discrepancy supposedly blurred the identification of the property
claimed by respondents.

We disagree.

The CA sufficiently reconciled the difference in the land areas in the two
deeds:
xxx. It may be asked why there were two deeds of sale covering the
same property. We find credence in [respondents] explanation. The
public auction was held on 13 September 1938 and therefore Pantaleon
Maming had up to 13 September 1939 to redeem the property. Before
the expiration of the period of redemption, Lorenzo Lumbo bought
[five] hectares of the [eight]-hectare property in an attempt, as
[respondents] put it, to persuade Maming not to redeem the property.
This can be inferred from the price of P500.00 he paid for the [five]
hectares while in the auction sale held, he bought the entire 8.0488
hectares for only P56.78. xxx.[28]

Next, petitioners highlight the tax declarations filed by respondents for the years
1991[29] and 1993[30] covering Lot 63 only. In the absence of contrary evidence, tax
declarations, being official documents, enjoy a presumption of truth as to their
contents. Petitioners contend that, unlike them, respondents never actually
declared Lot 64 as theirs and cannot therefore claim ownership of the property.

Jurisprudence is consistent that tax declarations are not conclusive evidence of

ownership of the properties stated therein.[31] A disclaimer is even printed on
their face that they are issued only in connection with real property taxation [and]
should not be considered as title to the property. At best, tax declarations are
an indicia of possession in the concept of an owner.[32] However, non-declaration
of a property for tax purposes does not necessarily negate ownership.[33]

From the foregoing, the fact that both tax declarations in the names of
respondents covered Lot 63 only did not necessarily mean they did not own Lot
64 as they were in fact able to present a document evidencing ownership of both
properties ― the final bill of sale.

Clearly, respondents have been able to establish by preponderance of evidence

that they are the rightful owners of Lot 64.

When an owner of real property is disturbed in any way in his rights over the
property by the unfounded claim of others, he may bring an action for quieting of
title. The purpose of the action is to remove the cloud on his title created by any
instrument, record, encumbrance or proceeding which is apparently valid or
effective but is in truth and in fact invalid and prejudicial to his title.[34]

Here, the deeds of sale executed in favor of petitioners and the spouses Gregorio
were prima facie valid and enforceable. However, further scrutiny and
investigation established that petitioners predecessor-in-interest, Ignacio
Bandiola, could not have owned the disputed lot. Consequently, the subsequent
conveyances of Lot 64 to the spouses Gregorio and thereafter, to petitioners,
were null and void. Therefore, respondents, as the adjudged owners of Lot 64, are
entitled to have the aforementioned deeds of sale nullified to remove any doubt
regarding their ownership of the lot.

While the appellate court adequately explained its decision, it failed to

categorically declare the deeds of sale as null and void in its dispositive portion.
Since it is the dispositive portion of the decision which shall be carried out, it is
important that the status of the deeds of sale be clearly stated therein.

WHEREFORE, the petition is hereby DENIED. The decision dated September

17, 2002 and resolution dated March 12, 2003 of the Court of Appeals
are AFFIRMED with the MODIFICATION that the deed of absolute sale dated
March 25, 1976, in so far as it covers Lot 64, and the deed of absolute sale dated
December 1, 1996 are hereby declared null and void.

Costs against petitioners.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 115430 November 23, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELIZABETH GANGUSO Y DECENA, accused-appellant.

DAVIDE, JR., J.:

The accused-appellant appeals from the joint decision 1 of Branch 114 of the Regional Trial Court
(RTC) of Pasay City in Criminal Cases Nos. 92-1932 and 92-1933 convicting her of the violation of
Section 15, Article III of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended, and of illegal possession of firearms. This decision was rendered after a motion for new
trial on the ground of newly discovered evidence 2 was granted.3The earlier judgment of conviction
was set aside.4

The accusatory portions of the informations under which the appellant was tried and convicted read
as follows:

Criminal Case No. 92-1932

That on or about the 26th day of November, 1992 in Pasay City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused, Elizabeth
Ganguso y Decena, without authority of law did then and there wilfully, unlawfully
and feloniously sell and deliver to another Methamphetamine Hydrochloride (shabu),
a regulated drug.

Contrary to law. 5

Criminal Case No. 92-1933

That on or about the 26th day of November, 1992 in Pasay City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused, Elizabeth
Ganguso y Decena with intent to use, did then and there, wilfully, unlawfully and
feloniously have in her possession, custody and control a .38 cal (Paltik) revolver,
without the necessary license to possess the same.

Contrary to law.6

The evidence for the prosecution is summarized by the trial court as follows:

That at about 7:30 in the evening of November 26, 1992, Major Juvenile Sulapas,
Officer-in-charge, Dangerous Drugs Enforcement Section, Pasay City Police Station,
received confidential report from an informant about rampant trafficking of drugs by a
 certain "Beth Tomboy", who lives at house No. 2445, Celedonia Street, Pasay City;
that a buy-bust operation was planned by subject officer and a briefing conducted
wherein PO3 Dennis Vermug was to act as poseur-buyer, backed-up by SPO1
Lumapat, SPO1 Gabutin, PO3s Mendoza and Garcia with SPO3 Fucanan as team
leader; Major Sulapas provided PO3 Vermug with a P500.00 bill, the serial number of
which was entered in the police blotter. Proceeding to the target area aboard two (2)
tricycles at about 8:10 P.M., "Beth Tomboy" was pointed at by the informant to PO3
Vermug, who lost no time in offering to buy P500.00 worth of shabu, to the suspect
while the rest of the team members were observing from a distance; that "Beth
Tomboy", after accepting the money, went into an interior alley to get the stuff from a
man to whom she also handed the money; that as soon as she returned, she handed
an aluminum packet (Exh. "B-1-a") to PO3 Vermug who, upon executing a pre-
arranged signal to his companions arrested the suspect. When frisked subsequent to
the arrest by SPO2 Prudencio Lumapat, the suspect yielded a .38 caliber Paltik
revolver; that PO3 Vermug ran after the man in the alley to recover the buy-bust
money but failed to catch him. The suspect, who turned out to be Elizabeth Ganguso
y Decena, a tomboy, was brought to Headquarters and accordingly charged of drug
pushing and illegal possession of firearm. The testimony of PO3 Dennis Vermug was
corroborated in material points by SPO2 Prudencio Lumapat and SPO3 Dalmacio
Fucanan.

The prosecution marked and offered following documentary exhibits which the Court
admitted in evidence: For Criminal Case No. 92-1932: Exhibit "A", letter request for
laboratory examination; Exhibit "B", white letter envelope containing Exhibit "B-1",
transparent plastic bag and Exhibit "B-1-a", aluminum foil containing shabu; Exhibit
"C", certification and DDB Report No. DD 92-1439, which found the specimen
positive for Methamphetamine Hydrochloride; and, Exhibit "E", affidavit of arrest
(both for Crim. Cases No. 92-1932 and 92-1933). For Criminal Case No. 92-1933:
Exhibit "A", FEO Certification that accused is not a licensed firearm holder; Exhibit
"B", .38 caliber revolver; and Exhibit "C" and "D" live .38 caliber bullets.7

On the other hand, the appellant testified that at around 8:00 p.m., of 26 November 1992, she was
washing clothes by the side of her house at No. 2445 Celedonia Street corner Decena Street, Pasay
City. At that time, there were two other persons in her house, namely, her cousin Elvira de Leon and
her cousin's maid, Ligaya Rojas. Suddenly, seven police officers barged into her house and, in her
presence, searched the premises without a search warrant. They also searched her person. The
policemen found nothing illegal in the house nor did they find anything on her. She was made to
board a tricycle and was brought to the police station. At the station, a police officer by the name of
Carbonell asked her who was selling shabu in their place, but she could not give him any name as
she did not know. She denied selling shabu to PO3 Vermug. She also denied that a .38 caliber
revolver was recovered from her.8

At the new trial, the defense presented Elvira de Leon and Lilia Magallanes, who tried to show that
no firearm was confiscated from the appellant and that no buy-bust operation took place. Lilia
claimed that she saw the arrival of five policemen riding on two tricycles. The policemen entered the
house of the appellant without talking to anyone at the door. According to Elvira, she heard the
appellant and the policemen arguing inside the house, with the former asking the policemen whether
they had a warrant and the latter answering that they needed none as they were just going to ask
her a few questions.

The trial court considered as credible the narration by the police witnesses of the events which led to
the arrest of the accused. It disregarded the appellant's defense of alibi as well as the testimonies of
her witnesses at the new trial which it found as "untruthful and contradictory to each other on
material points."9 It then convicted the accused of both charges and sentenced her as follows: (1) in
Criminal Case No. 92-1932 — to suffer the penalty of life imprisonment and to pay a fine of
P30,000.00, plus costs; and (2) in Criminal Case No. 92-1933 — to suffer an indeterminate penalty
of ten years and one day of prision mayor, as minimum, to twelve years and one day, as maximum,
and to pay a fine of P17,000.00, plus costs.

In this appeal, the appellant urges us to acquit her because the trial court erred

IN FINDING THAT THE PROSECUTION HAS FULLY MET THE TEST OF MORAL
CERTAINTY AS TO THE GUILT OF THE ACCUSED ON BOTH CHARGES OF
VIOLATION OF SECTION 15, ARTICLE III OF REPUBLIC ACT 6425 AND
PESIDENTIAL DECREE NO. 1866;

II
 IN ADMITTING AS EVIDENCE THE .38 CALIBER [REVOLVER] (EXHIBIT "B")
AGAINST THE ACCUSED DESPITE THE ABSENCE OF A BUY-BUST
OPERATION JUSTIFYING WARRANTLESS ARREST UNDER SECTION 5, RULE
113 OF THE RULES OF COURT.

In the first assigned error, the appellant assails the testimonies of the prosecution witnesses as
inconsistent and unconvincing. She points out that both SPO2 Lumapat and SPO3 Fucanan could
not have seen the object of the transaction between her and PO3 Vermug, since they were watching
from a distance. She further asserts that the absence of prior surveillance and the non-presentation
of the marked money cast doubt on her guilt for the crime charged.

In her second assigned error, the appellant maintains that since her warrantless arrest did not come
under Section 5, Rule 113 of the Rules of Court, the same was unlawful; hence, the warrantless
search and seizure of the firearm, assuming that she had it, was also unlawful. Elsewise stated, if an
arrest without a warrant is unlawful at the moment it is made, nothing that happens or is discovered
afterwards can make it lawful, for the fruit of a poisoned tree is necessarily tainted.10

In its Brief, the Appellee, through the Office of the Solicitor General, submits that the trial court
committed no error in finding the appellant guilty beyond reasonable doubt of the crimes charged but
asks for a modification of the penalties imposed. It recommends that in the light of the amendments
introduced by R.A. No. 7659 to R.A. No. 6425, as amended, and of the decision of this Court
in People vs. Simon,11 the penalty to be imposed in Criminal Case No. 92-1932 should be an
indeterminate sentence of two to four years of prision correccional. 12 It, however, asks this Court to
review and clarify its ruling in Simon regarding the application of penalties and then submits that the
adoption in R.A. No. 7659 of the penalties in the Revised Penal Code does not make the offense
under the Dangerous Drugs Act punishable under the Revised Penal Code, and that the said Act as
thus further amended by R.A. No. 7659 remains a special law; hence, under the Indeterminate
Sentence Law, "the imposable penalty should be that whose minimum term should not be less than
the minimum prescribed by the special law (the Dangerous Drugs Act); i.e., not lower than six (6)
months and one (1) day of prision correccional." The Appellee also contends that the imposable
penalty in Criminal Case No. 92-1933 should be "seventeen (17) years, four (4) months and one (1)
day, as minimum, to twenty (20) years, both of reclusion temporal, respectively, pursuant to the first
paragraph of Section 1 of P.D. 1866."13

An accused has in his favor the presumption of innocence which the Bill of Rights
guarantees.14 Unless his guilt is shown beyond reasonable doubt,15 he must be acquitted. This
reasonable doubt standard is demanded by the due process clause of the Constitution which
protects the accused from conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged.16 The burden of proof is on the
prosecution, and unless it discharges that burden the accused need not even offer evidence in his
behalf, and he would be entitled to an acquittal.17 Proof beyond reasonable doubt does not, of
course, mean such degree of proof as excluding possibility of error, produces absolute certainty.
Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced
mind.18 The conscience must be satisfied that the accused is responsible for the offense charged.19

The evidence for the prosecution has established that when the poseur-buyer, PO3 Vermug, was
already in front of the appellant, the former asked her if he could buy P500.00 worth of "S" (shabu).
After she received the money, she went toward the interior where she met a man to whom she
handed the money. The man then gave her something. She returned to where Vermug was and
gave to him that something she received from the man. Thereupon, Vermug placed it in his pocket
and arrested the appellant. Thus:

Q So when you approached her, wearing a white t-shirt, what

happened next?

A I handed P500.00 to Beth.

Q You immediately handed to her P500.00 without telling her

anything?

A First, I talked to her and asked her if I could buy P500.00 worth
of "S".

Q How did you talk to her?

A I approached her and told her that I was going to buy P500.00
worth of "S" and handed to her the P500.00.

Q What are the exact words that you told her?

 A "Beth PABILI NG WORTH P500.00 NG "S".

Q What did Beth Tomboy say if any?

A She got the money.

Q Without telling you anything?

A By saying: "SANDALI LANG".

xxx xxx xxx

Q After Beth received the P500.00, what did she do, if any?

A She went inside an interior and talked with a man, a tall and well
built man.

Q How far was this man from your position?

A More or less five (5) meters away, sir.

Q After Beth approached this man, what happened next?

A That man gave something to Beth.

Q If you know what was that something handed down by the man to
Beth?

A The shabu we were buying.

Q After the man handed Beth something as you said the shabu, what
did Beth do, if any?

A She returned to me and delivered to me the stuff.

Q Did you receive the stuff?

A Yes, sir.

Q What did you do next?

A I held my head with my left hand, as our pre-arranged signal.

Q Where was Beth that time?

A Just in front of me.

Q What happened next?

A Immediately after delivering to me the stuff, I held my head and at

the same time introduced myself as police officer and held Beth, after
that, my companions arrived and took hold of Beth. On my part, I ran
after the man whom Beth talked to earlier.20

We cannot, even by any stretch of the imagination, say that the appellant was merely used by PO3
Vermug to buy shabu. In the first place, she was the target of the buy-bust operation, there having
been an information received at the police station that she was engaged in selling drugs. Second,
she did not know Vermug; hence, she could not be expected to oblige him by buying a dangerous
drug for him. Third, it was to her that Vermug's offer to buy was made.

The version offered by the prosecution is susceptible of two interpretations though. One of which is
that the appellant was engaged in the buy-and-sell of dangerous drugs. When Vermug offered to
buy P500.00 worth of "S" and the appellant got the money without asking what "S" meant, it was
apparent that she already understood what "S" stood for. There was, therefore, a meeting of minds
upon a definite object and upon the price. The appellant's acceptance of the payment was an
indication that she had given her consent to the contract of sale. It was a clear evidence that the
contract between her and Vermug was perfected and was even partially fulfilled and executed.21
The appellant did not, however, have in her possession or disposition the object of the sale. Article
1459 of the Civil Code provides in part that the vendor must have a right to transfer the ownership of
the subject sold at the time it is delivered. This means that the seller must be the owner of the thing
sold at the time of delivery. But, he need not be the owner at the time of the perfection of the
contract.22 There is no doubt that the appellant had already a right to dispose of the prohibited stuff at
the time she delivered it to Vermug, for ownership thereof was acquired by her from the moment it
was delivered to her by the man from the interior after her payment of the price therefor.23 Two
transactions were then consummated, viz., that between the appellant and Vermug, with the
appellant as the seller, and that between the appellant and the man from the interior, with the former
as the buyer.

The other interpretation is that the appellant was merely acting as an agent of the supplier or seller
of dangerous drugs. In either way, she is criminally liable. In the first interpretation, she is culpable
for selling dangerous drugs, and in the second, for delivering such drugs, Section 15 of R.A. No.
6425, as further amended by R.A. No. 7659, provides:

Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation, and

Distribution of Regulated Drugs. — The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed
upon any person who, unless authorized by law, shall sell, dispense, deliver,
transport or distribute any regulated drug. (emphasis supplied)

The fact that Vermug did not open the aluminum foil given by the appellant to him does not destroy
the evidence for the prosecution. It must be noted that when the man in the interior handed that
"something" to the appellant, Vermug believed that the same was shabu, thus:

Q After Beth approached this man, what happened next?

A That man gave something to Beth.

Q If you know what was that something handed down by the man to
Beth?

A The shabu we were buying.24

It was understandable that he did not bother to open that "something," as he was apparently in a
hurry to arrest the appellant and the man from whom the stuff was obtained. He kept the stuff in his
pocket, and upon reaching their office, he turned it over to Antonio Conlu, who then marked it with
his initials "AC." When the latter opened the foil, Vermug saw a crystalline substance which, upon
examination by the Forensic Chemist, gave a positive result for Methamphetamine Hydrochloride,
confirming therefore his belief that it was shabu.

The fact that SPO2 Lumapat and SPO3 Fucanan were not able to see at close range the object of
the transaction between the appellant and Vermug does not adversely affect the evidence for the
prosecution. Their testimonies regarding the buy-bust operation, being merely corroborative, are not
indispensable for the conviction of the appellant. Neither are prior surveillance and the presentation
in evidence of the marked money. It has been held that a prior surveillance is not a prerequisite for
the validity of an entrapment operation25 especially when the buy-bust team members were
accompanied to the scene by their informant.26 The absence of the marked money neither creates a
hiatus in the evidence for the prosecution so long as the sale of the dangerous drugs is adequately
proven27 and the drug subject of the transaction is presented before the court.28

There being proof beyond reasonable doubt that the appellant was caught in flagrante delicto in the
act of selling shabu, her conviction must stand.

The penalty imposed on her should, however, be modified in view of R.A. No. 7659. Notably, the trial
court's decision was rendered on 12 January 1994 and promulgated on 10 March 1994. R.A. No.
7659 took effect on 31 December 1993 yet. The trial judge must not have been aware of that law yet
or was hesitant to apply it to this case. Being patently favorable to the appellant, that amendatory
law should be applied retroactively to the instant case.

It is now settled that where the quantity of methamphetamine hydrochloride (shabu) is less than 200
grams, the penalty is prision correccional to reclusion temporal depending upon the quantity. The
shabu sold by and confiscated from the appellant weighs 0.1954 grams only. Applying R.A. No.
7659, the Indeterminate Sentence Law, and the People vs. Simon29 case, and there being neither
aggravating nor mitigating circumstances, the proper penalty should be that within the range
of arresto mayor in its medium period, as minimum, to prision correccional in its medium period, as
maximum.
The submission of the Appellee that the minimum term to be imposed on the appellant should not be
less than the minimum prescribed in R.A. No. 6425, as further amended by R.A. No, 7659, must be
rejected. This Court's ruling on this matter in the Simon case is clear. Thus:

It is true that Section 1 of [the Indeterminate Sentence Law], after providing for
indeterminate sentence for an offense under the Revised Penal Code, states that "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." We hold that this quoted portion of the section indubitably
refers to an offense under a special law wherein the penalty imposed was not taken
from and is without reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the "offense is punished" under
that law.

There can be no sensible debate that the aforequoted rule on indeterminate

sentence for offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or contemplated in
the scale of penalties in Article 71 of the Code, hence there could be no minimum
"within the range of the penalty next lower to that prescribed by the Code for the
offense," as is the rule for felonies therein. . . .

We repeat, Republic Act No. 6425, as now amended by Republic Act. No. 7659, has
unqualifiedly adopted the penalties under the Revised Penal Code in their technical
terms, hence with their technical signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have applied the provisions of the
amended Section 20 of said law to arrive at prision correccional and Article 64 of the
Code to impose the same in the medium period. Such offense, although provided for
a special law, is now in effect punished by and under the Revised Penal Code.
Correlatively, to determine the minimum, we must apply the first part of the aforesaid
Section 1 which directs that "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 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." (Emphasis ours.)

This Court, however, has serious doubts about the alleged confiscation of the firearm from the
accused. SPO2 Lumapat declared in a cavalier fashion that he just happened to touch the accused's
right waistline and felt something hard which turned out to be a rusty firearm with a string attached to
its handle, and when he remarked, "O may baril ka," the accused told him that the gun was not hers.
Thus:

Q After Dennis Vermug surrendered this person who looked like a

man to you, what did you do?

A After Dennis Vermug handed to me the person of the accused I

happened to touch something hard at the waistline of the suspect sir.

Q Which waistline did you touch?

A Right waistline sir.

Q After you were able to touched [sic] hard object on the right
waistline of the suspect, what did you do next?

A I did not release it anymore and I took it and I found it to be a gun

sir.

Q What did you see [sic] if any to the suspect after you got the said
gun from her right waistline?

A I was only able to utter "O may baril ka."

Q What was the reply of the suspect?

A According to her the gun was not hers sir.

Q Can you describe to us the gun which you recovered?

 A It was something rusty and the handle has a string sir.

Q What kind of gun is it?

A .38 caliber sir.30

Yet, team leader Fucanan testified on direct examination that it was only in their office that
he actually saw the gun and learned that it was a .38 caliber. Thus:

Q Why do you know that it is a .38 caliber?

A We saw it in our office.31

According to Lumapat, the gun is somewhat rusty with a string attached to the handle.
Absent any evidence of any derogatory report against her as a possessor of an unlicensed
firearm, this Court finds it incredulous for the appellant to keep in her waistline a rusty
firearm, the handle of which was merely tied or bound together by a copper wire. Then too,
she was not even investigated on the firearm and made to sign any paper wherein she
acknowledged that a firearm was taken from her. Neither did Lumapat issue her a receipt for
the firearm. She should therefore be acquitted, there being a reasonable doubt that she had
in her possession an unlicensed firearm at the time she was arrested.

WHEREFORE, the instant appeal is partly GRANTED, and the challenged decision in Criminal
Cases Nos. 92-1932 and 92-1933 of Branch 114 of the Regional Trial Court of Pasay City is hereby
MODIFIED. As modified, accused-appellant ELIZABETH GANGUSO Y DECENA is hereby
ACQUITTED in Criminal Case No. 92-1933 on ground of reasonable doubt. The penalty imposed on
her in Criminal Case No. 92-1932 is hereby reduced to an indeterminate sentence of three (3)
months of arresto mayor, as minimum, to three (3) years of prision correccional, as maximum.

Costs de oficio.

SO ORDERED.

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

DIVISION

[ GR No. 94187, Nov 04, 1992 ]

PEOPLE v. TIRSO GARCIA +

DECISION

G.R. No. 94187

DAVIDE, JR., J.:

Appellant Vicente Torrejas appeals from the decision, promulgated on 20
April 1990, of Branch 4 of the Regional Trial Court (RTC) of Bohol in
Criminal Case No. 5696 the dispositive portion of which provides:
"WHEREFORE, the Court finds that accused Vicente Torrejas is GUILTY
beyond doubt (sic) of the crime charged for which he is hereby sentenced to
life imprisonment and to pay the costs. He is also ordered to pay the heirs
of Flaviano Gonzales legal indemnity of P30,000.00 as well as
reimbursement of (sic) the stolen articles in the sum of P5,600.00.
SO ORDERED."[1]
Together with Tirso Garcia, appellant was charged with the crime of
robbery with homicide in an information which reads:
"The undersigned, Third Assistant Provincial Fiscal, hereby accuses Tirso
Garcia alias Mamerto, Meming, Ranny and Vicente Torrejas both of Kinan-
oan, Trinidad, province of Bohol, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, (sic) conspiring,
confederating and mutually helping with each other, with intent to gain and
by the use of violence or intimidation upon persons did then and there
willfully, unlawfully and feloniously enter the inhabited house of Flaviano
Gonzales and once inside the said house, did then and there willfully,
unlawfully and feloniously take, steal and carry away therefrom against the
consent of the owner thereof, money in cash in the amount of Five
Thousand Six Hundred Pesos (P5,600.00) Philippine Currency, and
assorted family documents on real properties belonging to and owned by
the said Flaviano Gonzales, and by reason or on occasion of the said
robbery the accused conspiring, confederating and mutually helping with
each other, with intent to kill and without justifiable cause, did then and
there willfully, unlawfully and feloniously assault attack and hit the victim
Flaviano Gonzales with the use of blunt instruments thereby inflicting
physical injuries or mortal wounds on the said victim which resulted to his
immediate death to the damage and prejudice of the heirs of the deceased
in an amount to be proved during the trial of the case.
Acts committed contrary to the provisions of Article 293 and 294 of the
Revised Penal Code in relation to Art. 48 of the same Code, with the
aggravating circumstances of abuse of superior strenght (sic) and disregard
of the respect due the offended party on account of his age, the latter being
already 78 years old at the time of the incident."[2]
Accused Tirso Garcia disappeared after the incident and remains at large.
Only appellant was arraigned; because of his plea of not guilty, trial on the
merits ensued. The version of the prosecution, as testified to by witnesses
Socorro Gonzales, Eusebio Nagulada and Dr. Dalmacio Javellana, is
summarized by the People in its Appellee's Brief as follows:[3]
"In the early morning of June 30, 1988, Socorro Gonzales left her house at
Kinan-oan, Trinidad, Bohol and proceeded to the market of Trinidad to sell
tobacco, as it was her town's market day (pp. 2-3, tsn, June 14, 1989). Her
79-year-old husband Flaviano Gonzales, also known as 'Falab,' who was
then not suffering from any serious illness, just stayed at their home (ibid).
Later that same morning, Eusebio Nagulada called at Flaviano's house at
Kinan-oan, Trinidad, Bohol to ask him the amount of P40.00 as payment
for services he rendered as errand boy and all-around helper of Flaviano
and his wife, which amount he intended to spend on the market (pp. 2-5,
tsn, June 13, 1989). Flaviano, however, handed to him the amount of
P100.00 (ibid.). Subsequently, Nagulada left Flaviano and proceeded to the
market at Trinidad, Bohol. After he had purchased what he needed, he gave
the P60.00 change of Flaviano to the latter's wife, Socorro, who was also at
the market. Socorro, instead, returned to him the amount of P26.00 and
requested Nagulada to buy rice, battery (sic), fish and sugar for delivery to
her husband (pp. 6-8, tsn, June 13, 1989). Nagulada complied and upon
completing his errand proceeded to the house of Flaviano to deliver the
articles purchased (pp. 7-8, tsn, June 13, 1989). When he arrived there at
past 2:00 o'clock P.M., he saw Tirso Garcia and appellant Vicente Torrejas
standing near the banana plants outside Flaviano's house (pp. 8-9, tsn,
June 13, 1992). Consequently, he greeted them. As neither of the two
answered him, he proceeded to call at the main door of Flaviano's house
but nobody answered so he just entered through the door, which was not
locked. Afterwards, he went to the kitchen and placed the articles he
purchased on top of an aparador (pp. 10-11, tsn, June 13, 1989). As he
turned to go out, he saw the dead body of Flaviano with his head partly
hidden under the stove where the fuel was placed (pp. 10-12, tsn, June 13,
1989). Shocked at this discovery, he rushed outside but Tirso Garcia and
appellant, who were still standing near the banana plants, saw him (pp. 11-
12, tsn, June 13, 1989). Subsequently, Tirso Garcia summoned him and told
him not to tell anybody about Flaviano's death or else, he would be the next
victim. At that time, appellant just stood looking at Nagulada and Garcia as
they were conversing about three (3) fathoms away (pp. 12-14, 15-16, tsn,
June 13, 1989).
Consequently, Nagulada, who felt scared of Garcia's threat, retraced his
steps, left the premises and proceeded to his house about 200 meters away
(pp. 14-15, tsn, June 13, 1989). He did not tell anyone, except his wife
Basilia, that Flaviano is (was) already dead (ibid).
Meanwhile, Socorro Gonzales left her stall at the market in Trinidad, Bohol
and just walked towards her home at about 3:30 P.M. (pp. 4-5, tsn, June 14,
1989). At about 4:00 o'clock P.M., she called at the main door of her house,
but no one answered her (ibid).Consequently, she went through the kitchen
door and thereupon found her husband, Flaviano, lying under the stove
with his head covered by a coconut husk. Forthwith, she set down the
things she brought with her and knelt down to massage her husband's chest
and stomach. Afterwards, she removed the coconut husk from his face and
there and then discovered that his ears had been smashed (pp. 4-13, tsn,
June 14, 1989). Consequently, she rushed outside shouting for help from
her neighbors. Subsequently, she saw Tibo Apao, a nine-year old boy, and
requested him to go to the store to inquire if persons there may have
witnessed what had happened to her husband. (ibid).
Immediately thereafter, she returned to her husbands's side and, in the
process, discovered that he had many wounds (pp. 5-6, tsn, June 14, 1989;
Exhs. "B", "B-1"). Near her husband's dead body lay a pestle, his cane which
was already broken, a 'buri' hat and a 'chako' (Exhs. "B", "D", "E", "F" and
"G"). Close examination thereof disclosed that the lower end of the pestle,
as well as of the chako, showed fresh blood stains. Socorro recognized the
'buri' hat as the one used by Tirso Garcia when he passed by their house
two (2) days before the incident, while the 'chako' was the same one owned
by Tirso Garcia's younger brother, Edilberto Garcia, which she had
previously seen Edilberto use before the incident (pp. 7-8, tsn, June 14,
1989). Socorro likewise discovered that their ceiling had been opened. She
did not see any revolver therein although her husband had previously
informed her that he kept there the .38 caliber revolver pledged to him by
Tirso Garcia as collateral for the P300.00 he (Flaviano) loaned to him (pp.
9-10, tsn, June 14, 1989). Furthermore, she saw that their two (2) wooden
trunks appeared to have been forcibly opened and land titles and cash of
about P5,000.00 out of their recent sales of coconuts, 'palay,' and cassavas
(sic) kept therein were already missing (pp. 9-13, tsn, June 14, 1989).
Subsequently, Dr. Dalmacio Javellana, Municipal Health Officer of
Trinidad, Bohol, upon request of the INP Station Commander of Trinidad,
Bohol, who was notified of the killing, conducted post-mortem (sic)
examination on Flaviano's body at about 7:30 o'clock in the evening of June
30, 1988 (pp. 2-3, tsn, May 26, 1989; Exh. "A"; p. 5, rec.). Dr. Javellana
placed the time of the victim's death between 2:00 to 3:00 o'clock in the
afternoon, or five hours before the post-mortem examination. His findings
indicated (sic) asfollows:
'A male individual in cadaveric spasm showing severe contusion of the right
ear with concomittant (sic) fracture of the parietal bone with blood coming
out from the ears (,) nose and mouth, hands raised and flexed with semi-
clinched (sic) fist (,) with laceration of the skin at the postero-distal part of
the right arm "2" x 4, contusion of the left and right supra orbital regions.'
(Exh. A, p. 5, rec.)
Thereafter, Dr. Javellana issued a Medico-Legal Post-Mortem Report which
stated the cause of the victim's death as follows:
'Cause of death: Cerebro-Vascular Accident Secondary to Cerebro
Hemorrhage; Skull Fracture; Cerebral Concussion.'
(Ibid); pp. 2-6, tsn, May 26, 1989; Exhs. "B", "B").
As a result of Flaviano's death, Socorro incurred expenses for his funeral.
On July 11, 1988, Nagulada gave his statement before the police station at
Trinidad, Bohol regarding the incident which, among others, declared that
he saw Tirso Garcia and appellant outside the house of the deceased
Flaviano at about 2:00 o'clock in the afternoon of June 30, 1988 and that
Garcia warned him that if he would tell anybody about the death of
Flaviano, he will be the next person to be killed, while appellant merely
looked at them some three (3) fathoms away (Exh. "C"; pp. 8-14, 15-16, 21-
22, June 13, 1989)."
The appellant's version, on the other hand, as summarized by the People in
its Brief, is based on the testimonies of the appellant himself and his
witnesses, namely Roberto Infuesto, Pedro Daclan and Francisco
Gonzales:[4]
"Appellant is a resident of Tugas, Jetafe, Bohol. On June 11, 1988, he
brought his sick father to the house of his brother-in-law Pedro Daclan at
Kinan-oan, Trinidad, Bohol. On the same occasion, he met Roberto
Infuesto, his former co-worker at the logging company of one Quirino
Gonzales (pp. 2-4, tsn, June 19, 1989; pp. 2-3, tsn, June 15, 1989). In the
early morning of June 30, 1988, he (appellant) and Allan Daclan went to
select good cassavas (sic) of Pedro Daclan at Sitio Katipunan, Trinidad,
Bohol, one kilometer away from Pedro Daclan's house, which were (sic)
intended for delivery to Philstarch. They finished the task at past 1:00
o'clock in the afternoon. Afterwards, he and Allan went to Daclan's house.
His brother-in-law later commanded him to get a sack of corn grits and a
sack of fertilizer from the store of Nena Daclan and load it on the cart.
Accordingly, he went to the store and did as he was told. Upon reaching the
store, appellant took the sacks of corn grits and fertilizer and loaded them
on the cart. On his way to Daclan's house, he saw Infuesto plowing his field.
He arrived at Daclan's house at past 2:00 o'clock and saw Daclan talking to
Francisco Gonzales, who has (sic) just arrived. When Gonzales saw
appellant, he attempted to borrow money from the latter but he told him
that he has mortgaged his property. Francisco Gonzales chatted with them
until past 3:00 o'clock when he returned to the poblacion (pp. 2-4, tsn,
June 15, 1988; pp. 2-4, tsn, June 19, 1989). At around 4:00 o'clock in the
afternoon, appellant, his wife, and Daclan heard shouts apparently coming
from the house of Flaviano Gonzales, which prompted Daclan to
investigate. Daclan came back at past six in the afternoon and informed
appellant and his companions that Flaviano had died in his house (p. 5, tsn,
June 15, 1989; pp. 2-4, tsn, June 19, 1989).
During the trial, appellant testified that he has (sic) never met Nagulada
prior to his (appellant's) imprisonment at the municipal jail of Trinidad,
Bohol, (pp. 6-8, 13, tsn, June 15, 1989)."
We find the foregoing summary to be amply supported by the evidence
adduced by the parties.
The conviction of the appellant is based solely on the trial court's
observations that (a) there existed no previous misunderstanding between
him and the prosecution witness Eusebio Nagulada; it is the
latter who testified having seen the appellant and Tirso Garcia together a
few meters from the house of the victim at past 2:00 o'clock in the
afternoon of the day of the incident; (b) the appellant left for Jetafe, Bohol
on the day after the incident; (c) the appellant lied when he claimed that he
did not know the victim; and (d) at the time the victim was killed, the
appellant was, as he had testified, in the house of his brother-in-law, Pedro
Daclan, a mere 100 meters from the house of the victim; it was, therefore,
not physically impossible for the appellant to be at the crime scene when
the crime was committed.
In his Brief,[5] appellant submits the following assignment of errors:
"I
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT
VICENTE TORREJAS BASED SOLELY ON CIRCUMSTANTIAL
EVIDENCE.
II
THE TRIAL COURT ERRED IN FINDING VICENTE TORREJAS GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH
HOMICIDE."
Appellant contends that he was convicted on the basis of a single
circumstance which does not even clearly implicate him, namely his having
been seen, by witness Nagulada, with co-accused Tirso Garcia at past 2:00
o'clock in the afternoon of the day of the killing near the house of the
victim, Flaviano Gonzales. There was no eyewitness to the crime. Otherwise
stated, appellant avers that the circumstantial evidence presented did not
prove his guilt beyond reasonable doubt.
In a gesture of utmost objectivity and fairness, which is but proper and to
be expected of it under all circumstances, the Office of the Solicitor General,
in the Brief for the Appellee,[6] concurs with the appellant and recommends
the reversal of the appealed decision and acquittal of the appellant.[7] In
support thereof, it contends that the only circumstance that can be
appreciated against appellant is the statement of prosecution witness
Eusebio Nagulada that he saw Tirso Garcia and the appellant standing near
the banana plants about five (5) and fifteen (15) meters away, respectively,
from the house of Flaviano minutes before he (Nagulada) discovered that
the latter had been killed; the appellant remained in the same place and
watched as Garcia warned him (Nagulada) not to tell anyone that Flaviano
was dead or else he would be the next victim.
The Solicitor General opines that appellant should be convicted only if it
could be proven that he had conspired with his co-accused Tirso Garcia. In
view of the rule obtaining in this jurisdiction that conspiracy must be
established by positive and conclusive evidence, appellant's mere presence
at the place of the incident, absent any other corroborating circumstance,
cannot be considered as sufficient to establish his having conspired with
Tirso Garcia to kill and rob Flaviano.[8]
We find merit in the appeal and do not hesitate to acquit the accused for the
sheer failure of the prosecution to present evidence that would establish
guilt beyond reasonable doubt. We note at the same time, to Our dismay,
the failure of the trial court to accord with profound reverence the solemn
mandate of the Constitution that an accused is presumed innocent until the
contrary is proven and to remain faithful to the firmly settled doctrine that
in order to overcome said presumption, nothing but proof beyond
reasonable doubt must be established by the prosecution. Save in certain
circumstances, as where the accused admits the commission of the imputed
criminal act but interposes justifying circumstances, that burden is never
shifted to the accused or diminished by the weakness of the defense. For
indeed, unless the prosecution discharges that burden, the accused need
not even offer evidence in his behalf. He would be entitled to an acquittal.
As We stated in People vs. Dramayo:[9]
"Accusation is not, according to the fundamental law, synonymous with
guilt. It is incumbent on the prosecution to demonstrate that culpability
lies. Appellants were not even called upon then to offer evidence on their
behalf. Their freedom is forfeit (sic) only if the requisite quantum of proof
necessary for conviction be in existence. Their guilt must be shown beyond
reasonable doubt. To such a standard, this Court has always been
committed. There is need, therefore, 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 his 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. The conscience must be satisfied that
on the defendant could be laid the responsibility for the offense charged;
that not only did he perpetrate the act but that it amounted to a crime.
What is required then is moral certainty."
We have this dictum not only because the accused "faces the full panoply of
state authority with all 'The People of the Philippines' arrayed against him,"
hence the need "to equalize the positions of the prosecution and the defense
by presuming the innocence of the accused until the state is able to refute
the presumption by proof of guilt beyond reasonable doubt,"[10] but also for
the cogent reasons that "[t]he accused during a criminal prosecution has at
stake interests of immense importance, both because of the possibility that
he may lose his liberty upon conviction and because of the certainty that he
would be stigmatized by the conviction. Accordingly, a society that values
the good name and freedom of every individual should not condemn a man
for commission of a crime when there is reasonable doubt about his guilt. x
x x Moreover, use of the reasonable doubt standard is indispensable to
command the respect and confidence of the community in applications of
the criminal law. It is critical that the moral force of the criminal law not be
diluted by a standard of proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our free society that every
individual going about his ordinary affairs have confidence that his
government cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost certainty."[11]
This reasonable doubt standard has constitutional stature for
the Due Process Clause protects the accused against conviction except upon
proof beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged.[12]
Absolute certainty as to the guilt of the accused is, of course, not
required.[13] Only moral certainty, or that degree of proof which produces
conviction in an unprejudiced mind, is needed.[14]
In the instant case, nobody witnessed the taking of the property subject of
the robbery and the killing of the victim. There is no evidence to show that
either or both deeds took place inside the house, specifically in the kitchen
where the victim's dead body was discovered. The only circumstance that
could possibly link the appellant to the incident is his alleged presence near
the victim's house at the time of the commission of the crime. Conceding, ex
gratia, such presence to have been adequately proven -- although such
averment was vigorously denied by appellant -- thereby effectively
according full faith and credit to the testimony of prosecution witness
Eusebio Nagulada, such testimony provides a single circumstance only. In
order that circumstantial evidence may sustain a conviction, there must
exist, inter alia, more than one circumstance. Section 4, Rule 133 of the
Rules of Court provides:
"SEC. 4. Circumstantial evidence, when sufficient. -- Circumstantial
evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt."
The lone allegation that appellant was standing near the victim's house
minutes after the offense was committed, unsupported by any other
credible or competent evidence, can not even engender a belief that he
committed a crime. At most, one would merely suspect. Suspicion is not
proof. Of course, as correctly observed by the Office of the Solicitor General,
it would have been entirely different if conspiracy between the appellant
and Tirso Garcia was established. The rule is well settled that the same
degree of proof is required to support a finding of the presence of
conspiracy, that is, it must be shown to exist as clearly and as convincingly
as the commission of the offense itself.[15] Direct proof, however, is not
essential; it may be shown by acts and circumstances from which may
logically be inferred the existence of a common design among the accused
to commit the offense charged.[16] In the instant case, the prosecution
miserably failed to show other facts and circumstances, except the
appellant's supposed presence near the house of the victim, from which it
may be reasonably and logically inferred that both appellant and Tirso
Garcia had agreed to rob and kill the victim and actually decided to commit
it. Mere passive presence at the scene of the crime does not make a person
liable therefor.[17]
We note the trial court's attempt to supply the missing piece, so to speak, to
the prosecution's evidence by taking into account the appellant's departure
on the day after the incident and the weakness of his defense of alibi. As to
the first, the court relied on the rule that flight is indicative of guilt.
Indeed, as written in the literature of the Old Testament, "the wicked man
flees though no one pursues, but the righteous is as bold as the
lion."[18] Unfortunately, however, no such flight could be ascribed to the
appellant. The trial court lost sight of the fact that the appellant was then a
resident of Tugas, Jetafe, Bohol and that he happened to be in Kinan-oan,
Trinidad, Bohol on 11 June 1988 because he brought his sick father to the
house of his brother-in-law, Pedro Daclan. Flight, in order to be considered
as an indication of guilt, presupposes that a person escapes from the
authorities to evade prosecution. It does not contemplate a situation where
the accused, like the appellant in the case at bar, returns to his home where
at any time, he may be picked up for questioning in connection with or
arrested for having committed a crime. If there is anyone upon whom flight
can be appreciated against, it is Tirso Garcia who remains at large.
As to alibi, the trial court should have disregarded the same altogether
because reliance on it is entirely unnecessary. The prosecution having
miserably failed to prove appellant's guilt beyond reasonable doubt, the
weakness of his defense should not have been even made to come into the
picture. The weakness of his alibi could not strengthen the prosecution's
case, for settled is the rule that the prosecution must rely on the strength of
its evidence and not on the weakness of the defense.
No court, when confronted with issues that affect the life and liberty of
citizens in a free society, should treat flippantly the latter's constitutional
guarantees and supply deficiencies in the evidence for the prosecution with
its own bias, suspicion or speculation.
All told, Our minds cannot rest easy upon the certainty of guilt on the part
of the appellant on the basis of the scant and unreliable evidence presented
by the prosecution.
One final word. The trial court imposed the penalty of life imprisonment on
the appellant. Under the first paragraph of Article 294 of the Revised Penal
Code, the penalty for robbery with homicide is reclusion perpetua to death.
In view of the first paragraph of Section 19, Article III of the 1987
Constitution, only reclusion perpetua may be imposed. This penalty is not
the same as life imprisonment. We have reiterated this time and
again[19] and admonished judges to employ the proper legal terminology in
the imposition of imprisonment penalties because of their different
accompanying legal accessories and effects. Failure to heed this
pronouncement can no longer be excused.
WHEREFORE, for lack of proof beyond reasonable doubt, the appealed
decision of Branch 4 of the Regional Trial Court of Bohol in Criminal Case
No. 5696 is REVERSED and appellant VICENTE TORREJAS is hereby
ACQUITTED. His immediate release from detention is hereby ordered,
unless he is being held for another lawful cause.
Costs de oficio.
SO ORDERED.

Gutierrez, Jr., (Chairman), Bidin, Romero, and Melo, JJ., concur.

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 178202

Plaintiff-Appellee,
Present:

CORONA, J., Chairperson,

- versus - VELASCO, JR.,
PERALTA,
BERSAMIN,* and
MENDOZA, JJ.
NORMAN SITCO and
RAYMUNDO BAGTAS (deceased), Promulgated:
Accused-Appellants.
May 14, 2010
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

This is an appeal from the October 19, 2006 Decision of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 00038 entitled People of the Philippines v. Norman
Sitco y De Jesus and Raymundo Bagtas y Caparas, which affirmed the Decision of
the Regional Trial Court (RTC), Branch 72 in Malabon, in Criminal Case Nos.
19456-MN to 19459-MN for violation of Sections 15 and 16 of Republic Act No.
(RA) 6425 or The Dangerous Drugs Act of 1972. The affirmed RTC decision
adjudged accused-appellants Raymundo Bagtas and Norman Sitco guilty in Crim.
Case No. 19456-MN for drug pushing and sentenced them to reclusion
perpetua. For illegal possession of drugs, Bagtas was sentenced to two months and
one day of arresto mayor, as minimum, to one year and one day of prision
correccional, as maximum, in Crim. Case No. 19458-MN, andreclusion
perpetua in Crim. Case No. 19459-MN. While the RTC convicted Sitco in Crim.
Case No. 19457-MN, the CA would later overturn his conviction in this case.

The Facts

In Crim. Case No. 19456-MN, Sitco and Bagtas were charged with drug pushing in
an information reading:

That on or about the 11th day of May 1998, in Navotas, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, being private persons and without authority of law,
conspiring[,] confederating and mutually helping with one another, did
then and there willfully, unlawfully and feloniously sell and deliver, in
consideration of the sum of P2,000.00+, most of which were boodle or
 fake money to a poseur buyer[,] two (2) heat-sealed transparent plastic
bags containing white crystalline substance with net weight of 108.40
grams and 105.84 grams respectively, which substance when subjected
to chemistry examination gave positive result for Methamphetamine
Hydrochloride, otherwise known as Shabu, a regulated [drug].[1]

The other informations for illegal possession of drugs that were separately filed
against either Sitco or Bagtas read as follows:

Crim. Case No. 19457-MN against Sitco (illegal possession)

That on or about the 11th day of May 1998, in Navotas, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, being [a] private person and without authority of law, did then
and there willfully, unlawfully and feloniously have in [his] possession,
custody and control One (1) heat-sealed transparent plastic bag,
containing white crystalline substance with net weight of 20.29 grams,
which substance when subjected to chemistry examination gave positive
result for Methamphetamine Hydrochloride otherwise known as Shabu,
a regulated drug.[2]

Crim. Case No. 19458-MN against Bagtas (illegal possession)

That on or about the 11th day of May 1998, in Navotas, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, being [a] private person and without authority of law, did then
and there willfully, unlawfully and feloniously have in his possession,
custody and control One (1) heat-sealed transparent plastic bag,
containing white crystalline substance with net weight of 1.31 grams,
which substance when subjected to chemistry examination gave positive
result for Methamphetamine Hydrochloride otherwise known as Shabu,
a regulated drug.
Crim. Case No. 19459-MN against Bagtas (illegal possession)

That on or about the 11th day of May 1998, in Navotas, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, being [a] private person and without authority of law, did then
and there willfully, unlawfully and feloniously have in his possession,
custody and control One (1) brick of suspected marijuana with net
weight of 887.01 grams, which is a regulated drug.[3]

During the arraignment, both accused-appellants entered a not guilty plea to

all the charges. A joint trial then ensued.

Version of the Prosecution

From the testimony of the prosecution witness, Police Officer 3 (PO3) Alex Buan,
the following version is gathered:

Acting on a tip from an informant, Senior Inspector Gatlet of the Navotas

Police Station ordered the conduct of a buy-bust operation against accused-
appellants, who were allegedly selling illegal drugs on Espina St. in Navotas,
Metro Manila. The team consisted of Buan, as poseur-buyer, a confidential
informant, and several police operatives as back-up. Marked money, consisting of
four (4) PhP 500 bills for a total of PhP 2,000 and boodles or fake money
amounting to PhP 196,000, was prepared.

On May 11, 1998 at 11:15 in the evening, the team proceeded to a house in
the target place where Bagtas answered the knocking of the door. Thereupon, the
confidential informant introduced him to Buan who, then and there, expressed his
desire to buy shabu. Bagtas replied that he did not have enough supply of shabu,
but manifested that marijuana was available. Buan, however, insisted on buying
only shabu.[4]

Bagtas informed Buan that someone would be delivering more shabu. After
waiting for a few minutes, a man, who turned out to be Sitco, arrived. After the
usual introductions, Sitco told Buan to follow him to his motorcycle. He asked for
the payment and took out a bag with two plastic bags of shabu inside. Buan
examined the contents, then identified himself as a police officer, and arrested
Sitco. The back-up officers joined the scene and frisked Sitco and Bagtas. Sitco
was found to have in his possession a loaded caliber .38 paltik revolver, the buy-
bust money, and more shabu. Bagtas had in his possession marijuana and shabu.[5]

The seized items were sent to Forensic Chemist Grace N. Eustaquio for laboratory
examination and were found positive for shabu and marijuana per Physical
Science No. D-411-98.

During trial, Buan identified accused-appellants, the four (4) PhP 500-bill marked
money used, the shabu confiscated from both accused-appellants, and
the marijuanaseized from Bagtas. Buan explained during his testimony that the
boodle money placed in-between the genuine marked money the buy-bust team
used was unavailable as it had been confiscated by a policeman named Barlin
when he himself (Buan) was arrested for violating Sec. 27 of the Dangerous Drugs
Act.[6]

Version of the Defense

The evidence for the defense consists of the testimonies of Sitco and Bagtas.

Bagtas branded as fabricated the accusations against him and Sitco. According to
him, on the day of the alleged buy-bust operation, he was busy cleaning his
motorcycle when, all of a sudden, policemen, led by Buan, entered his house. Buan
came armed with an armalite rifle and a .45 caliber pistol, but did not show any
document to justifying the police officers entry into his (Bagtas) home. The
intruders pointed guns at Bagtas, his common-law wife, his nephew, a certain Boy
Macapagal, a certain Malou, a helper in his store, a girl applying for work as a
househelper, and Sitco, who was visiting Buan at the time. They were ordered to
lie face down as Bagtas house was being searched. He was told that he was a
suspect in the killing of a Navotas policeman named Ira. After the search was
done, no illegal drugs were found. Yet the police officers took his camera, tape
recorder, and the cash from his stores sales. The pieces of jewelry they were
wearing, including his ring and necklace, were also confiscated. Afterwards, all of
them were handcuffed and asked to board the police officers vehicles. Two
motorcycles belonging to Sitco and Bagtas were also seized.[7]
At the police headquarters, Buan and the other police officers demanded payment
for the release of Bagtas group. After some haggling, the group relented and paid
some amount for their freedom. Sitco and Bagtas, however, were detained. Instead,
they were handcuffed to a steel post after being blindfolded by the police. [8] Bagtas
overheard the police officers dividing the jewelry among them. He was then beaten
along with Sitco to extort money for their release. The police officers eventually
told them to pay a reduced amount, which they still could not afford to give.
Complaints were thus filed against them, with the police officers manufacturing
the evidence used by the prosecution. Bagtas ended his testimony with a
declaration that he was filing complaints against the police officers once he was
released from detention.[9]
Sitco corroborated Bagtas testimony, adding that Buan had already been dismissed
from the service.[10] He testified that the police officers frisked him and confiscated
his wallet, watch, ring, and motorbike. He was told that they were suspects in the
killing of a Navotas policeman. At the headquarters, he claimed being tortured.
Eventually, he fell asleep. When he woke up, he saw Buan with two others
sniffing shabu. He declined Buans invitation to join the session. The police officer
likewise instructed him to produce PhP 100,000 for his release. Sitco informed
Buan that he could not afford the amount. The next day, May 12, Buan took
some shabu from the cabinet and told Sitco that the charge against him would push
through if he did not pay. Sitco was also warned about the difficulty of posting bail
once charged. Since he could not raise the money, the police officers brought him
to the prosecutors office for inquest where manufactured evidence allegedly taken
from him and Bagtas were shown to the fiscal.[11] On cross-examination, he
admitted to having been previously arrested for possession of shabu and violation
of Presidential Decree No. 1866.[12]

Ruling of the Trial Court

The RTC gave full credence to the testimony of Buan and, mainly on that basis,
convicted Bagtas and Sitco of the crimes charged.

The dispositive portion of the RTC Decision[13] reads:

WHEREFORE, premises considered, judgment is hereby rendered

finding the two accused, namely Norman Sitco y de Jesus and
Raymundo Bagtas y Caparas guilty beyond reasonable doubt of the
offenses charged against them in these cases. In the absence of any
mitigating or aggravating circumstances and applying the provisions of
the Indeterminate Sentence Law (where applicable), the two accused are
hereby sentenced as follows:

1) In Crim. Case No. 19456-MN: for drug pushing under Section 15,
Article III, RA 6425, as amended by RA 7659, involving more than 200
grams of shabu, for each of them to suffer imprisonment of reclusion
 perpetua and for each of them to pay a fine in the amount of
Php500,000.00;

2) In Crim. Case No. 19457-MN against Sitco only for illegal possession
of 20.29 grams of shabu under Section 16, Article III, RA 6425, as
amended by RA 7659, to a prison term ranging from SIX (6) MONTHS
of arresto mayor as minimum, to SIX (6) years of prision correccional,
as maximum;

3) In Crim. Case No. 19458-MN against Bagtas only for illegal

possession of 1.31 grams of shabu under Section 16, Article III, RA
6425, as amended by RA 7659, to a prison term ranging from TWO (2)
MONTHS and ONE (1) DAY of arresto mayor, as minimum, to ONE
(1) YEAR and ONE (1) DAY of prision correccional, as maximum;

4) In Crim. Case No. 19459-MN against Bagtas only for illegal

possession of 887.01 grams of marijuana under Section 8, Article II, RA
6425, as amended by RA 7659, said accused is sentenced to suffer the
prison term of reclusion perpetua and to pay a fine of P500,000.00.

Since the death penalty was imposed, the case came to this Court on automatic
review. In accordance with People v. Mateo,[14] however, we ordered the transfer
of the case to the CA for intermediate review.

Pending CA review of the case, or on May 5, 2006, Bagtas died at

the National Bilibid Prison Hospital.

Ruling of the Appellate Court

Before the CA, Sitco argued against the credibility of Buan as witness, the latter
having been involved in drug-related activities and was in fact dismissed from the
service in March 1999. He also claimed that the alleged drug sale involving him
was improbable as no one would sell drugs to a stranger.

On October 19, 2006, the CA acquitted Sitco of illegal possession of drugs but
affirmed his conviction of the other offenses charged. It reasoned that Buans
testimony was focused only on the two (2) plastic bags of shabu which were the
object of the buy-bust; no attempt was made to make a distinction between the said
bags and the additional bag of shabu supposedly recovered from Sitco when he
was frisked. The quantum of proof necessary to sustain a conviction for illegal
possession of shabu was, thus, not met. However, as to the other charges, the CA
ruled that the factual findings of the trial court on Buans credibility must be
respected and upheld.

The fallo of the CAs Decision[15] reads:

WHEREFORE, premises considered, the assailed Joint Decision
dated August 26, 1999 of the RTC of Malabon, Metro Manila, Branch
72 in Criminal Case Nos. 19456-MN to 19459 is
hereby AFFIRMED with modification ACQUITTING accused-
appellant Norman Sitco y De Jesus in Criminal Case No. 19457-
 MN for violation of Sec. 16, Art. II of RA 6425, as amended by RA
7659, on the basis of reasonable doubt. The rest of the Joint Decision
stand[s].

SO ORDERED.
On November 14, 2006, Sitco filed his Notice of Appeal of the appellate courts
Decision.

On September 24, 2007, this Court required the parties to submit supplemental
briefs if they so desired. The People, represented by the Office of the Solicitor
General, manifested that it was submitting the case for decision based on the
records previously submitted. In his Supplemental Brief, Sitco submits that PO3
Buan is not a credible witness given his arrest on drug charges and dismissal from
the service.

The Issue

WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING

ACCUSED-APPELLANTS CONVICTION ON THE BASIS OF AN
UNRELIABLE WITNESS.

The Ruling of the Court

We find sufficient compelling reasons to acquit the surviving accused-appellant

Sitco.

Credibility of Buan as Witness

We start with the credibility of the lone prosecution witness, Buan, whose
testimony Sitco has assailed at every turn. Sitco insists and with reason that Buan
cannot competently make a plausible account of something of which he himself
was equally culpable.
Sitcos assault on the credibility of Buan is well-taken. As it were, Buans
involvement as a police officer in illegal drug activities makes him a polluted
source and renders his testimony against Sitco and Bagtas suspect, at best. It is like
a pot calling a kettle black.

To be believed, testimonial evidence should come only from the mouth of a

credible witness.[16] Given his service record, Buan can hardly qualify as a witness
worthy, under the limited confines of this case, of full faith and credit. And lest it
be overlooked, Buan is a rogue cop, having, per his own admission, been arrested
for indulging in a pot session, eventually charged and dismissed from the police
service. [17] It would appear, thus, that Buans had been a user. His arrest for joining
a pot session only confirms this undesirable habit.

The Court, to be sure, has taken stock of the well-settled rule that prosecutions
involving illegal drugs depend largely on the credibility of police buy-bust
operators, and that the trial courts finding on the police-witness credibility deserves
respect. Juxtaposed with this rule, however, is the postulate that when confronted
with circumstances that would support a reasonable doubt in favor of the accused,
then acquittal or the least liability is in order. Buans involvement in drugs and his
alleged attempt to extort money from appellant Sitco in exchange for his freedom
has put his credibility under a heavy cloud.

The imperative of proof beyond reasonable doubt has a vital role in our
criminal justice system, the accused, during a criminal prosecution, having a stake
interest of immense importance, both because of the possibility that he may lose
his freedom if convicted and because of the certainty that his conviction will leave
a permanent stain on his reputation and name.[18] As articulated in Rabanal v.
People:

Law and jurisprudence demand proof beyond reasonable doubt

before any person may be deprived of his life, liberty, or even property.
Enshrined in the Bill of Rights is the right of the petitioner to be
presumed innocent until the contrary is proved, and to overcome the
presumption, nothing but proof beyond reasonable doubt must be
established by the prosecution. The constitutional presumption of
innocence requires courts to take a more than casual consideration
of every circumstances or doubt proving the innocence of
petitioner.[19] (Emphasis added.)

Chain of Custody

But over and above the credibility of the prosecutions lone witness as ground for
acquittal looms the matter of the custodial chain, a term which has gained traction
in the prosecution of drug-related cases.

In prosecutions involving narcotics and other illegal substances, the substance itself
constitutes part of the corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt.[20] Of chief concern in drug
cases then is the requirement that the prosecution prove that what was seized by
police officers is the same item presented in court. This identification, as we have
held in the past, must be established with moral certainty[21] and is a function of the
rule on chain of custody. The chain of custody requirement is essential to ensure
that doubts regarding the identity of the evidence are removed through the
monitoring and tracking of the movements of the seized drugs from the accused, to
the police, to the forensic chemist, and finally to the court.[22]

The procedure to be followed in adhering to the chain of custody requirements is

found in Sec. 21 of RA 9165:

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:

(1) The apprehending 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
thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of

dangerous drugs, plant sources of dangerous drugs, controlled precursors
and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment, the same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination.
The trial court summarized the chain of custody over the evidence as follows:

x x x [Sitco] asked for the money and then took from a covered
part of the motorcycle a plastic bag inside [of] which were two plastic
bags with shabu which Sitco gave to Buan. Buan examined the same and
upon being satisfied that it was really shabu, identified himself as a
policeman and arrested Sitco. Buans companions then approached and
Sitco and Bagtas were frisked. Found from Sitco was a caliber .38 paltik
revolver with six bullets, the buy-bust money and additional shabu. The
marijuana earlier shown to Buan by Bagtas was also recovered along
with the additional shabu found in the motorcycle of Bagtas which was
parked nearby.

The buy-bust shabu, the marijuana and the confiscated additional shabu
from Sitco and Bagtas were sent to a Forensic Chemist for laboratory
examination (Exhibit A) and were found to be positive for being shabu
and marijuana, respectively, by examining PNP Forensic Chemist Grace
N. Eustaquio under an initial laboratory report (Exhibit B) and a final
report (Physical Science No. D-411-98) marked as Exhibit C.[23]

From this narration and an examination of the records, a number of disturbing

questions arise as to the identification and handling of the prohibited drugs seized.
It is unclear at the outset whether Buan himself made the inventory of the seized
items. There is no detail as to who brought the specimens to the forensic laboratory
and who received it prior to the examination by the forensic chemist. It is also
uncertain who took custody of the specimens before they were presented as
evidence in court. There are, thus, glaring gaps or missing links in the chain of
custody of evidence, raising doubt as to the identity of the seized items and
necessarily their evidentiary value. This broken chain of custody is especially
significant given that what are involved are fungible items that may be easily
altered or tampered with.[24]

It cannot be over-emphasized that pertinent provisions of RA 9165 require that the

seized illegal items shall, after their inventory, be photographed in the presence of
the drug dealer, representatives of media, the Department of Justice, or any elected
public official who participated in the operation. The records do not yield an
indication that this particular requirement has been complied with.

The Court reiterates that, on account of the built-in danger of abuse that it carries, a
buy-bust operation is governed by specific procedures on the seizure and custody
of drugs, separately from the general law procedures geared to ensure that the
rights of persons under criminal investigation and of the accused facing a criminal
charge are safeguarded.[25] To reiterate, the chain of custody requirement is
necessary in order to remove doubts as to the identity of the evidence, by
monitoring and tracking custody of the seized drugs from the accused, until they
reach the court. We find that the procedure and statutory safeguards prescribed for
compliance by drug enforcement agencies have not been followed in this case. A
failure to comply with the aforequoted Sec. 21(1) of RA 9165 implies a
concomitant failure on the part of the prosecution to establish the identity of the
seized illegal items as part of the corpus delicti.[26]

Although the non-presentation of some of the witnesses who can attest to an

unbroken chain of custody of evidence may, in some instances, be excused, there
should be a justifying factor for the prosecution to dispense with their
testimonies.[27] In People v. Denoman,[28] the Court discussed the saving
mechanism provided by Sec. 21(a), Article II of the Implementing Rules and
Regulations of RA 9165.[29] Denoman explains that the aforementioned provision
contains a saving mechanism to ensure that not every case of non-compliance will
permanently prejudice the prosecutions case. The saving mechanism applies when
the prosecution recognizes and explains the lapse or lapses in the prescribed
procedures.[30] In this case, the prosecution did not even acknowledge and discuss
the reasons for the missing links in the chain.

To reiterate, in prosecutions involving dangerous drugs, the substance itself

constitutes the key part of the corpus delicti of the offense and the fact of its
existence is vital to sustain a judgment of conviction beyond reasonable
doubt.[31] Taken with the uncorroborated testimony of Buan, the broken chain of
custody over the marijuana and shabu in the instant case creates reasonable doubt
on accused-appellants guilt.

In a string of cases,[32] 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 it was finally offered in court, fatally conflicts with every
proposition relative to the culpability of the accused.

As in People v. Partoza,[33] this case suffers from the failure of the prosecution
witness to provide the details establishing an unbroken chain of
custody. In Partoza, the police officer testifying did not relate to whom the custody
of the drugs was turned over. The evidence of the prosecution likewise did not
disclose the identity of the person who had the custody and safekeeping of the
drugs after its examination and pending presentation in court.
Given the prosecutions failure to abide by the rules on the chain of custody, the
evidentiary presumption that official duties have been regularly performed cannot
apply to this case. This presumption, it must be emphasized, is not conclusive. Not
only is it rebutted by contrary proof, as here, but it is also inferior to the
constitutional presumption of innocence.[34] On this score, we have held that while
an accuseds defense engenders suspicion that he probably perpetrated the crime
charged, it is not sufficient for a conviction that the evidence establishes a strong
suspicion or probability of guilt. It is the burden of the prosecution to overcome the
presumption of innocence by presenting the quantum of evidence required. [35] This
quantum of evidence has not been met in the instant case.

WHEREFORE, the assailed CA Decision in CA-G.R. CR-H.C. No. 00038

is REVERSED and SET ASIDE. Accused-appellant Norman Sitco y De Jesus
is ACQUITTED on reasonable doubt and is ordered
immediately RELEASED from detention, unless he is confined for any other
lawful cause. 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.

THIRD DIVISION

ROLITO RABANAL, G. R. No. 160858

Petitioner,

Present:

QUISUMBING, J.,

Chairman,

- versus - CARPIO,

CARPIO MORALES, and

TINGA, JJ.

PEOPLE OF THE PHILIPPINES Promulgated:

and HON. COURT OF APPEALS,

Respondents.

February 28, 2006

 x------------------------------------------------------------------------------------x

DECISION

TINGA, J.:

Before us is a petition for certiorari under Rule 45 of the Rules of Court filed
by Rolito Rabanal (petitioner) impugning the (1) Decision [1] of the Court of
Appeals dated 31 March 2003 in CA-G.R. CR No. 14772, affirming the
Decision[2] of the Regional Trial Court (RTC) of Quezon City, Branch 97
convicting petitioner of homicide and (2) its Resolution[3] dated 11
November 2003 denying his motion for reconsideration.

In Criminal Case No. Q-48913, petitioner, along with Salvador Impistan alias
Ador and Eloy Labatique (Eloy) were charged with homicide in an
Information which reads:

That on or about the 16th day of November, [sic] 1986, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused conspiring together, confederating with [and] mutually
helping each other, with intent to kill, with evident premeditation and
treachery, and without any justifiable cause, did then and there willfully,
unlawfully and feloniously attack, assault and employ personal violence
upon the person of FELIPE SALES Y NACHOR by then and there stab[b]ing
him with a bladed weapon hitting the victim on different parts of his body
thereby inflicting upon him serious and mortal wou[n]ds which were the
direct and immediate cause of his death, to the damage and prejudice of
the [heirs] of the said FELIPE SALES Y NACHOR in such amount as may be
awarded under the provisions of the Civil Code.

CONTRARY TO LAW.[4]

Eloy remained at large. On arraignment, Ador and petitioner pleaded

not guilty. Trial on the merits ensued.
As culled from the testimony of the lone eyewitness Dionisio Javier (Javier)
and the medico-legal report, the evidence of the prosecution established
the following facts:

In the evening of 16 November 1986, Javier was watching a card game

of pusoy inside the chapel in Seminary Road, Sitio Maligaya, Quezon
City when Ador and Eloy arrived. Ador reportedly uttered, Kung sino ang
matapang dito, ako lang ang harapin, kung sino ang manggugulo, ako lang
ang harapin. Thereafter, the duo left. Johnny Sibayan (Mang Johnny), the
Barangay Tanod, came and asked the children to leave, after which he
followed suit.

Ador and Eloy returned to the chapel. Ador suddenly boxed Javier on the
right side of his head, causing the latter to move backward. When Javier
asked Bakit?Eloy collared him and dragged him to a corner of the chapels
room. Eloy punched him again on the head and at the back while Javier was
cowering to cover his face. At that instance, Mang Johnny came back and
tried to pacify the assailant by saying, Tama na yan, tama na yan. Mang
Johnny subsequently ordered Javier to leave.

Instead of leaving, Javier went out to look for a stone to hurl back at
Ador. However, Javier failed to find one; he instead stood beside the
door. Peeping through a window, Javier saw the victim Felipe Sales putting
his right foot over a chair while holding on to iron railings.

Suddenly, Javier saw petitioner appear from the back of the

chapel. Petitioner leaned against the wall and pulled out a knife measuring
seven (7) inches in length.He stabbed the victim with an upward thrust at his
right armpit. Javier also saw Ador stab the victim near the chest, after which
the latter groaned, Aray. The victim retaliated with a blow to Ador, who
simultaneously stabbed him at the front side of his body near the chest. Eloy
entered the scene and likewise stabbed the victim. Javier saw Ador stab the
victim several times until he fell down. Ador continued stabbing the victim
several times at the back while he was lying flat on the floor.

At this moment, Javier ran away. On his way home, he met one of his friends
and told him about the incident.
Dr. Florante Mendoza was on duty at the Quezon City
General Hospital on 16 November 1986. He examined a patient named
Felipe Sales who was declared dead on arrival. He testified that the victim
suffered several stab wounds on the left upper arm, in the forearm, and at
the back, which possibly caused his death.[5]

Dr. Desiderio Moraleda, on the other hand, testified that as per autopsy
result, the cause of the victims death was cardio arrest due to respiratory
shock and hemorrhage secondary to multiple stab wounds. The wounds
totaled twenty-six (26), twenty-three (23) of which were located in the
dorsal side, chest, forearm and back. He said that there was no wound at
the right armpit. Based on his examination of the wounds, he opined that
the assailants had been in motion, although he also said that it was possible
that there could have been only one assailant.[6]

The evidence for the defense consists of the testimonies of Raymundo

Buenaventura (Raymundo) and petitioner himself.

Raymundo was inside the chapel when he saw Ador and Eloy stab the victim
several times. After the assailants left, the victim was brought to the
hospital in a tricycle. He belied the testimony of witness Javier that
petitioner was the first to stab the victim. According to Raymundo,
petitioner was not present at the scene of the crime.

Petitioner testified on his behalf. He claimed that he was then working at

the Quezon City General Hospital on 16 November 1986 from 7:00
a.m. to 4:00 p.m.He went to the wake in the chapel after work. After being
informed by Mang Johnny and Raymundo of the stabbing incident, he went
home to avoid trouble. He denied stabbing the victim and further denied
having known the victim prior to 16 November 1986.

The case against Ador was dismissed on demurrer to

evidence. However, petitioner was eventually convicted of homicide in a
Decision[7] dated 12 January 1993.

The trial court gave credence to the testimony of the prosecution

witness, despite some apparent inconsistencies on his part. The RTC opined
that the prosecution was able to overcome the presumption of innocence of
petitioner. The trial court sentenced petitioner to a penalty of imprisonment
with a minimum term of ten (10) years and four (4) months and one (1) day
to fifteen (15) years and ordered him to indemnity the heirs of the victim in
the amount of P30,000.00.[8]
Petitioner appealed his conviction to the Court of Appeals. In his Brief, he
capitalized on the inconsistency of Javiers testimony relative to the physical
evidence as shown by the medical and autopsy findings to exculpate himself
from criminal liability. Petitioner claimed that he could not be faulted for the
death of the victim in the absence of credible proof of injury he caused to
the victim.[9]

The appellate court dismissed petitioners contention by holding that [t]he

location of the stab wounds at the cadaver is inconsequential in a homicidal
attack. As long as the intent to kill is present, the requirement of the law for
conviction is satisfied.[10] The Court of Appeals gave full faith to the positive
identification by the lone witness Javier of petitioner as the assailant in
sustaining the latters conviction.[11]

In a Decision dated 31 March 2003, the appellate court affirmed the

trial courts judgment of conviction with a clarification of the nomenclature
of the penalty pertaining to the minimum and maximum terms of the
indeterminate sentence, thus: ten (10) years and four (4) months and one
(1) day of prision mayor, as minimum, to fifteen (15) years of reclusion
temporal, as maximum.[12]

Petitioner moved for reconsideration, but his motion was denied in a

Resolution dated 11 November 2003. The Court of Appeals remained
steadfast in its original action for conviction, thus:

Even assuming, ex argumenti, that the witness account of the location of

the stab wound is disputatious, it will not warrant a reversal of Our ruling
in light of the positive, categorical and consistent identification of
appellant as the assailant.[13]

Aggrieved, petitioner interposed the instant petition anchored on the

primordial issue of whether or not the guilt of petitioner was proven beyond
reasonable doubt for the crime charged.[14]
 It is a well-entrenched rule that the findings of fact of the trial court
and its conclusions based on the said findings are accorded by this Court
high respect, if not conclusive effect, especially when affirmed by the Court
of Appeals. This is because of the unique advantage of the trial court of
having been able to observe, at close range, the demeanor and behavior of
the witnesses as they testify.[15]

Our jurisdiction in cases brought to us from the Court of Appeals is

limited to the review and revision of errors of law allegedly committed by
the appellate court, as its findings of fact are deemed conclusive. We are not
duty-bound to analyze and
weigh all over again the evidence already considered in theproceedings
below. However, such rule is not without

exceptions.[16] Such findings may be reviewed if there appears in the record

some fact or circumstance of weight which the lower court may have
overlooked, misunderstood or misappreciated, and which, if properly
considered, would alter the result of the case.[17] Where, as in this case, the
weight and sufficiency of evidence is crucial to the question of innocence or
guilt of petitioner, a thorough reevaluation of the evidentiary basis for
conviction is imperative.

The prosecution relied heavily on the testimony of its lone eyewitness

to establish the participation of petitioner in the crime. Javier positively
identified petitioner as one of those who stabbed the victim inside the
chapel. In fact, the rulings of the lower courts rest primarily on his testimony
to warrant petitioners conviction. Thus, it becomes evident that Javiers
testimony is pivotal in the determination of the guilt of petitioner.

Although the well-entrenched rule is that the testimony of a single

witness is sufficient on which to anchor a judgment of conviction, it is
required that such testimony must be credible and reliable.[18]

We shall now examine Javiers version of the stabbing incident. In his

earlier statement made before the police taken on 17 November 1986, he
made the following declaration:

T: Isalaysay mo nga ang buong pangyayari?

 S: Ganito po iyon, ng gabing [sic] ay nagpunta ako sa kapilya dahil
nga may na aburol [sic] na patay, inabutan ko doon sina FELIPE, DELFIN at
maraming tao na nanood din ng sugal. Habang magkakatabi [sic] kami nina
FELIPE at DIONISIO ay dumating si ADOR na kasama si BOY BUWING at isa
pa na hindi ko kilala. Bigla akong sinuntok ni ADOR sa mukha tapos niyan
ay hinila ako sa aking t-s[h]irt ng kasama nila at nilayo, buti na lang at
naawat ni JOHNNY kaya hindi na ako nasaktan. Lalabas sana ako ng kapilya
pero nakita ko na sinaksak ni BOY BUWING si FELIPE, tapos niyon ay
sinaksak din siya ni ADOR, hinawakan pa ni ADOR si FELIPE sa damit at
pinagsasaksak [sic] sa katawan. Ang ginawa naman nina BOY BUWING at
ng kasama nila ay pinagsasaksak din si FELIPE. Tumakbong palabas ng
kapilya si FELIPE pero sinundan nina ADOR, BOY BUWING at ng kasama xxx
nila. Nakahiga na sa lupa si FELIPE at sinusaksak [sic] pa nila. Nagtakbuhan
na sina ADOR, BOY BUWING at kasama niya, si FELIPE naman ay dinala na
sa hospital.[19]

Javier made these statements while the events were still fresh on his
mind. It can thus be inferred that there were three people who allegedly
attacked the victim, namely, Boy Buwing (petitioner), Ador, and one other
person whose identity was not known to the witness at that time. Javier also
stated that the trio arrived together at the chapel.

On direct examination, or two months after the incident, Javier gave

the following answers to the questions propounded by the private
prosecutor:

Q- Now do you recall of [sic] any unusual incident that happened on that
prcised [sic] date and time?

A- There was.

Q- And will you please relate to this Court what that incident was all
about?

A- Yes sir.

Q- Kindly relate please?

A- Yes sir.
 xxxx

A- Then, Ador and Roy Labatique arrived.

Q- And what happened after [sic] arrival of these two?

A- Ador told everyone present that if there is someone who will make
trouble.

xxxx

A- Sabi po nila, kung sino ang matapang dito ako lang ang harapin, kung
sino ang manggugulo, ako lang ang harapin.

xxxx

Q- And after those words being uttered at by Ador, what happened next, if
you remember?

A- After they uttered those words, they left.

Q- And after having left the place if they left as you said, what happened
next?

A- The Barangay Tanod, Mang Johnny came.

xxxx

A- Mang Johnny told the children to get out.

xxxx

A- After he asked the children to leave, he also left.

 xxxx

Q- After that, what happened?

A- Then, Ador and Elloy suddenly arrived.

Q- Where were you positioned at when these Ador and Elloy arrived at the
chapel?

A- I was inside the chapel near the place where we were playing pusoy.[20]

Based on the foregoing testimony, Javier clearly stated that Ador and Eloy
arrived together at the chapel and left abruptly after issuing a vague
threat. The Barangay Tanod came and asked the children to leave. When
Ador and Eloy came back, they chanced upon Javier.

Upon seeing Javier, Ador boxed him. Eloy, on the other hand, dragged
him to a corner of the chapel and continuously hit him at the back and
head. This mauling went on until he was pacified by the Barangay
Tanod. Standing by the door of the chapel, Javier witnessed the killing. He
positively declared that petitioner then stabbed victim once:

xxxx

Q- You said that this Rolito Rabanal arrived, where did you see him when
he arrived?

A- He came from behind the chapel.

Q- Why do you know that he came from behind the chapel?

xxxx

A- It is because I saw him.

 Q- And what happened next after you saw him came from behind the
chapel?

A- Dumikit siya sa pader at bumunot ng patalim. (witness demonstrating)

xxxx

Q- After having seen [sic] the petitioner with that knife, what happened
next?

A- Then he stabbed Felipe by an upward thrust while Felipe was holding

on to the grill.

(witness demonstrating the sudden upward thrust towards the left

armpit)

Q- Left armpit of who?

A- While Felipe was holding on to the grill, Rolito Rabanal stabbed him
upwards near the right armpit. The thrust of the knife was upwards.
(witness demonstrating an upward thrust on his right armpit under
the armpit side of the right body just under the left armpit)

Q- And where was the petitioner positioned at in relation to the

deceased Felipe Sales when Felipe Sales as you said was stabbed on
the right armpit?

A- Boy Buwing was on the right side of the Felipe Sales and the latter
did not know that he was there because he just came from behind
the chapel.[21]

According to Javier, the first stab wound was inflicted by petitioner, who came
from behind the chapel. While the victim was holding on to the grill and unaware
of the presence of petitioner, the latter allegedly stabbed him near his right
armpit.

Then, Javier recounted the participation of Ador in the stabbing of Sales.

 xxxx

Q- Now after you said Felipe Sales was stabbed by the petitioner, what
happened next?

A- Then I looked at Felipe Sales, Ador hit him near the chest with a knife,
and then, after Felipe Sales was stabbed, he said, aray, after that,
he boxed Ador who was in front of him and then he simultaneously
Ador stabbed him also near the front side of his body near the
chest. I do not know the exact location.

Q- And this Ador you are referring to, would you be able to describe him?

A- He is a small man but he has a robust body.

xxxx

Q- Now after Ador whom you stated gave a thrust at the chest of the
victim, what happened next?

A- After a simultaneous boxing by Felipe Sales and Ador was also stabbing
him, then, this Ador stabbed him, when he was about to ran [sic] a
little backward, Ador held him by the collar (witness indicating with
his left hand the holding of the collar) and then stabbed him again,
and then, Ador held him [by] the collar of his neck.After Felipe Sales
boxed Ador, Ador stabbed him and when he moved a little
backward, Ador followed him and held him by the collar on his
neck, and then, Boy Buwing arrived and also stabbed Felipe Sales,
and then Felipe Sales fell down to the ground, and then
simultaneously, Elloy Labatique and Ador entered.[22]

Upon his cross-examination, however, Javier made a surprising

turnaround.

Q- How about Salvador Impistan, did he stab Felipe Sales?

A- After boxing me, a Barangay Tanod pacified us and I was sent out of the
chapel by the Barangay Tanod.
 Q- So, in short, you did not see whether or not Salvador Impistan stab
Felipe Sales?

A- Because I was sent out by the Barangay Tanod.

Q- I will repeat my question for the last time. Did you see Salvador
Impistan stab Felipe Sales?

A- No sir. I did not see. I only saw Rolito Rabanal.[23]

While Javier was very explicit in recounting Adors participation in the

crime in his sworn statement and during the direct examination, he
retracted during the cross-examination when he expressly denied seeing
Ador stab the victim. Presumably, the dismissal of the case against Ador on
demurrer was grounded on this inconsistent, yet categorical statement of
Javier.

The trial court disregarded these apparent inconsistencies and upheld

the general credibility of the witness who appeared to be sincere. [24] We are
well aware of the rule that minor inconsistencies and contradictions do not
destroy the credibility of the witness. In fact, they even tend to strengthen
rather than weaken ones credibility by erasing any suspicion of a rehearsed
testimony.[25]

However, these inconsistencies and contradictions in Javiers testimony

cannot be characterized as minor or be dismissed as trivial. If at all, these
inconsistencies reflect his uncertainty as to the identity of the
malefactors. He was categorical in describing Adors participation in stabbing
the victim during the direct examination and even earlier in his sworn
statement, only to retract during the cross-examination and deny having
seen Ador stab the victim. This turnaround bears relevance to the
identification of the assailants so as to create a reasonable doubt as to their
culpability.

It is a well-established principle that when the identification is

doubtful, inconclusive, or unreliable, an acquittal is called for. The doubtful
identification of petitioner herein, when taken with the absence of any
other evidence showing his guilt, justifies his acquittal.[26]
 Corroborative evidence may be resorted to when there are reasons to
warrant the suspicion that the witness falsified the truth or that his
observations had been inaccurate.[27]
Javier had unequivocally testified that petitioner stabbed victim on the
right armpit.[28] This does not correspond with the autopsy report. Of the
twenty-six (26) stab wounds, not a single wound was found at the right
armpit.

Physical evidence is a mute but eloquent manifestation of truth and

rates highly in the hierarchy of trustworthy evidence. It enjoys a far more
superior probative weight than corroborative testimonies.[29] In the instant
case, the autopsy report negates the lone witnesss account of the
participation of petitioner in the stabbing of the victim.

The inconsistency between the positive testimony of Javier and the

physical evidence, particularly the autopsy report, further diminishes the
credibility of the lone eyewitness.

The Court has ruled that when serious and inexplicable discrepancies
in important details are found in a witness's testimony, his/her testimony
may be disregarded. Also, when discrepancies pervade the testimonies of
prosecution witnesses such that the totality of the prosecution evidence
fails to constitute a coherent account, the conviction of petitioner cannot be
justified. In this case, where the testimony of the lone witness may be the
sole basis for conviction, the serious discrepancies in his testimony hardly
lend credence to his supposed positive testimony and cast a serious doubt
as to the credibility of his charge.[30]

There are other circumstances extant from the record that likewise
support reasonable doubt in favor of petitioner. His own witness,
Raymundo, asserted that petitioner was not present at all at the scene of
the crime. The medico-legal officer conceded that it was possible that only
one person inflicted all the stab wounds on the victim, thus it is also possible
that any one of the several people mentioned by Javier could have, on his
own, perpetrated the crime. The gaps and inconsistencies in Javiers tale give
rise to a plausible alternative version, supported by petitioners witness and
unrebutted by the physical evidence, that petitioner was not present at the
scene of the crime, or otherwise did not participate in the stabbing of the
victim. When confronted with variant though equally plausible version of
events, the version that is in accord with the acquittal or the least liability of
the accused should be favored.[31]

Law and jurisprudence demand proof beyond reasonable doubt

before any person may be deprived of his life, liberty, or even property.
Enshrined in the Bill of Rights is the right of the petitioner to be presumed
innocent until the contrary is proved, and to overcome the presumption,
nothing but proof beyond reasonable doubt must be established by the
prosecution. The constitutional presumption of innocence requires courts to
take "a more than casual consideration" of every circumstance or doubt
proving the innocence of petitioner.[32]

The lower courts committed reversible error in ruling that the positive
identification of petitioner-appellant by the complainant as the lone
eyewitness presented by the prosecution established his guilt to a moral
certainty. In this case, the testimony of Javier is dubious; hence, stark of
probative weight.

A conviction in a criminal case must be supported by proof beyond

reasonable doubt, which means a moral certainty that petitioner is
guilty.[33] The prosecution failed to establish the identity of the assailant
beyond reasonable doubt. Hence, we cannot sustain petitioners conviction.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No.

14772 is REVERSED and SET ASIDE. Petitioner is on reasonable doubt, and is
ordered immediately released unless he is being held for some other valid or
lawful cause. The Director of Prisons is DIRECTED to inform this Court of the
action taken hereon within five (5) days from receipt hereof.

SO ORDERED.
FIRST DIVISION
JULIUS AMANQUITON, G.R. No. 186080

Petitioner,

Present:

PUNO, C.J., Chairperson,

CARPIO,

- v e r s u s - CORONA,

DE CASTRO and
BERSAMIN, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

August 14, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CORONA, J.:

Petitioner Julius Amanquiton was a purok leader of Barangay Western Bicutan,

Taguig, Metro Manila. As a purok leader and barangay tanod, he was responsible
for the maintenance of cleanliness, peace and order of the community.

At 10:45 p.m. on October 30, 2001, petitioner heard an explosion. He, together
with two auxiliary tanod, Dominador Amante[1] and a certain Cabisudo, proceeded
to Sambong Street where the explosion took place. Thereafter, they saw
complainant Leoselie John Baaga being chased by a certain Gil Gepulane. Upon
learning that Baaga was the one who threw the pillbox[2] that caused the
explosion, petitioner and his companions also went after him.

On reaching Baagas house, petitioner, Cabisudo and Amante knocked on the

door. When no one answered, they decided to hide some distance away. After
five minutes, Baaga came out of the house. At this juncture, petitioner and his
companions immediately apprehended him. Baaga's aunt, Marilyn Alimpuyo,

followed them to the barangay hall.

Baaga was later brought to the police station. On the way to the police station,
Gepulane suddenly appeared from nowhere and boxed Baaga in the face. This

caused petitioner to order Gepulanes apprehension along with Baaga. An incident

report was made.[3]

During the investigation, petitioner learned Baaga had been previously mauled by
a group made up of a certain Raul, Boyet and Cris but failed to identify two

others. The mauling was the result of gang trouble in a certain residental
compound in Taguig City. Baagas mauling was recorded in a barangay blotter
which read:

10-30-201

Time: 10-15 p.m.

RECORD purposes

Dumating dito sa Barangay Head Quarters si Dossen[4] Baaga is Alimpuyo

16 years old student nakatira sa 10 B Kalachuchi St. M.B.T. M.M.

Upang ireklamo yong sumapak sa akin sina Raul[,] Boyet [at] Cris at yong

dalawang sumapak ay hindi ko kilala. Nang yari ito kaninang 10:p.m. araw ng

[M]artes taong kasalukuyan at yong labi ko pumutok at yong kabilang mata ko

 ay namaga sa bandang kanan. Ang iyong kaliwang mukha at pati yong likod ko

ay may tama sa sapak.

Patunay dito ang aking lagda.

Dossen Banaga (sgd.)

Thereafter, an Information for violation of Section 10 (a), Article VI,

RA[5] 7160[6] in relation to Section 5 (j) of R.A. 8369 was filed against petitioner,
Amante and Gepulane. The Information read:

The undersigned 2nd Assistant Provincial Prosecutor accuses Julius Amanquiton,

Dominador Amante and Gil Gepulane of the crime of Violations of Section 10 (a) Article

VI, Republic Act No. 7610 in relation to Section 5 (j) of R.A. No. 8369 committed as

follows:

That on the 30th day of October, 2001, in the Municipality of Taguig, Metro Manila,

Philippines and within the jurisdiction of this Honorable Court, the above-named

accused in conspiracy with one another, armed with nightstick, did then and there

willfully, unlawfully and feloniously attack, assault and use personal violence, a form of

physical abuse, upon the person of Leoselie John A. [Baaga], seventeen (17) years old, a

minor, by then and there manhandling him and hitting him with their nightsticks, thus,

constituting other acts of child abuse, which is inimical or prejudicial to childs

development, in violation of the above-mentioned law.

CONTRARY TO LAW.

On arraignment, petitioner and Amante both pleaded not guilty. Gepulane

remains at-large.
During the trial, the prosecution presented the following witnesses: Dr. Paulito
Cruz, medico-legal officer of the Taguig-Pateros District Hospital who attended to

Baaga on October 30, 2001, Baaga himself, Alimpuyo and Rachelle Baaga
(complainants mother).

The defense presented the testimonies of petitioner, Amante and Briccio Cuyos,
then deputy chief barangay tanod of the same barangay. Cuyos testified that the

blotter notation entered by Gepulane and Baaga was signed in his presence and
that they read the contents thereof before affixing their signatures.

On May 10, 2005, the RTC found petitioner and Amante guilty beyond reasonable

doubt of the crime charged.[7] The dispositive portion of the RTC decision read:

WHEREFORE, in view of the foregoing, this Court finds the accused JULIUS

AMANQUITON and DOMINADOR AMANTE GUILTY beyond reasonable doubt for

violation of Article VI Sec. 10 (a) of Republic Act 7610 in relation to Section 3 (j) of

Republic Act 8369, hereby sentences accused JULIUS AMANQUITON and DOMINADOR

AMANTE a straight penalty of thirty (30) days of Arresto Menor.

Both accused Julius Amanquiton and Dominador Amante are hereby directed to pay

Leoselie John A. Banaga the following:

1. Actual damages in the amount of P5,000.00;

2. Moral Damages in the amount of P 30,000.00; and

3. Exemplary damages in the amount of P 20,000.00.

The case against the accused Gil Gepulane is hereby sent to the ARCHIVES to be

revived upon the arrest of the accused. Let [a] warrant of arrest be issued against him.

SO ORDERED.
 Amanquitons motion for reconsideration was denied.[8]

Petitioner filed a notice of appeal which was given due course. On August
28, 2008, the CA rendered a decision[9] which affirmed the conviction but

increased the penalty. The dispositive portion of the assailed CA decision read:

WHEREFORE, in view of the foregoing the Decision appealed from

is AFFIRMED with MODIFICATION. The accused-appellant is sentenced to suffer the

penalty of four (4) years, two (2) months and one (1) day of prision

correccional maximum up to eight (8) years of prision mayor minimum as maximum. In

addition to the damages already awarded, a fine of thirty thousand pesos (P30,000.00)

is hereby solidarily imposed the proceeds of which shall be administered as a cash fund

by the DSWD.

IT IS SO ORDERED.

Petitioners motion for reconsideration was denied.[10]

Hence, this petition. Petitioner principally argues that the facts of the case as
established did not constitute a violation of Section 10 (a), Article VI of RA 7160
and definitely did not prove the guilt of petitioner beyond reasonable doubt.

The Constitution itself provides that in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved.[11] An accused is
entitled to an acquittal unless his guilt is shown beyond reasonable doubt.[12] It is

the primordial duty of the prosecution to present its side with clarity and
persuasion, so that conviction becomes the only logical and inevitable conclusion,
with moral certainty.[13]

The necessity for proof beyond reasonable doubt was discussed in People v.

Berroya:[14]
[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution,

the State is arrayed against the subject; it enters the contest with a prior inculpatory

finding in its hands; with unlimited means of command; with counsel usually of

authority and capacity, who are regarded as public officers, as therefore as speaking

semi-judicially, and with an attitude of tranquil majesty often in striking contrast to that

of defendant engaged in a perturbed and distracting struggle for liberty if not for life.

These inequalities of position, the law strives to meet by the rule that there is to be no

conviction where there is reasonable doubt of guilt. However, proof beyond reasonable

doubt requires only moral certainty or that degree of proof which produces conviction

in an unprejudiced mind.

The RTC and CA hinged their finding of petitioners guilt beyond reasonable doubt
(of the crime of child abuse) solely on the supposed positive identification by the

complainant and his witness (Alimpuyo) of petitioner and his co-accused as the
perpetrators of the crime.

We note Baagas statement that, when he was apprehended by petitioner and

Amante, there were many people around.[15] Yet, the prosecution presented only

Baaga and his aunt, Alimpuyo, as witnesses to the mauling incident itself. Where
were the other people who could have testified, in an unbiased manner, on the
alleged mauling of Baaga by petitioner and Amante, as supposedly witnessed by

Alimpuyo?[16] The testimonies of the two other prosecution witnesses, Dr. Paulito
Cruz and Rachelle Baaga, did not fortify Baagas claim that petitioner mauled him,
for the following reasons: Dr. Cruz merely attended to Baagas injuries, while
Rachelle testified that she saw Baaga only after the injuries have been inflicted on
him.

We note furthermore that, Baaga failed to controvert the validity of the barangay

blotter he signed regarding the mauling incident which happened prior to his
apprehension by petitioner. Neither did he ever deny the allegation that he
figured in a prior battery by gang members.

All this raises serious doubt on whether Baagas injuries were really inflicted by
petitioner, et al., to the exclusion of other people. In fact, petitioner testified
clearly that Gepulane, who had been harboring a grudge against Baaga, came out

of nowhere and punched Baaga while the latter was being brought to the police
station. Gepulane, not petitioner, could very well have caused Baaga's injuries.

Alimpuyo admitted that she did not see who actually caused the bloodied
condition of Baagas face because she had to first put down the baby she was then

carrying when the melee started.[17] More importantly, Alimpuyo stated that she
was told by Baaga that, while he was allegedly being held by the neck by
petitioner, others were hitting him. Alimpuyo was obviously testifying not on

what she personally saw but on what Baaga told her.

While we ordinarily do not interfere with the findings of the lower courts
on the trustworthiness of witnesses, when there appear in the records facts and
circumstances of real weight which might have been overlooked or
misapprehended, this Court cannot shirk from its duty to sift fact from fiction.

We apply the pro reo principle and the equipoise rule in this case. Where
the evidence on an issue of fact is in question or there is doubt on which side the
evidence weighs, the doubt should be resolved in favor of the accused.[18] If
inculpatory facts and circumstances are capable of two or more explanations, one
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 will not
justify a conviction.[19]

Time and again, we have held that:

Republic Act No. 7610 is a measure geared towards the implementation
of a national comprehensive program for the survival of the most
vulnerable members of the population, the Filipino children, in keeping
with the Constitutional mandate under Article XV, Section 3, paragraph
2, that The State shall defend the right of the children to assistance,
including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development. This piece of legislation supplies the
inadequacies of existing laws treating crimes committed against
children, namely, the Revised Penal Code and Presidential Decree No.
603 or the Child and Youth Welfare Code. As a statute that provides for
a mechanism for strong deterrence against the commission of child
abuse and exploitation, the law has stiffer penalties for their
commission, and a means by which child traffickers could easily be
prosecuted and penalized. Also, the definition of child abuse is
expanded to encompass not only those specific acts of child abuse
under existing laws but includes also other acts of neglect, abuse,
cruelty or exploitation and other conditions prejudicial to the childs
development.[20]

However, this noble statute should not be used as a sharp sword, ready to be
brandished against an accused even if there is a patent lack of proof to convict
him of the crime. The right of an accused to liberty is as important as a minors
right not to be subjected to any form of abuse. Both are enshrined in the
Constitution. One need not be sacrificed for the other.

There is no dearth of law, rules and regulations protecting a child from any and all
forms of abuse. While unfortunately, incidents of maltreatment of children
abound amidst social ills, care has to be likewise taken that wayward youths
should not be cuddled by a misapplication of the law. Society, through its laws,
should correct the deviant conduct of the youth rather than take the cudgels for
them. Lest we regress to a culture of juvenile delinquency and errant behavior,
laws for the protection of children against abuse should be applied only and
strictly to actual abusers.
The objective of this seemingly catch-all provision on abuses against children will
be best achieved if parameters are set in the law itself, if only to prevent baseless
accusations against innocent individuals. Perhaps the time has come for Congress
to review this matter and institute the safeguards necessary for the attainment of
its laudable ends.

We reiterate our ruling in People v. Mamalias:[21]

We emphasize that the great goal of our criminal law and procedure is
not to send people to the gaol but to do justice. The prosecutions job is
to prove that the accused is guilty beyond reasonable doubt. Conviction
must be based on the strength of the prosecution and not on the
weakness of the defense. Thus, when the evidence of the prosecution is
not enough to sustain a conviction, it must be rejected and the accused
absolved and released at once.

WHEREFORE, the petition is hereby GRANTED. The August 28, 2008 decision and
January 15, 2009 resolution of Court of Appeals are REVERSED and SET ASIDE.
Petitioner Julius Amanquiton is hereby ACQUITTED of violation of Section 10 (a),
Article VI of RA 7160.

SO ORDERED.

THIRD DIVISION

[G.R. No. 122487. December 12, 1997]

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

REYNALDO BERROYA, SPO4 JOSE VIENES and FRANCISCO
MATEO, accused-appellants.

DECISION
ROMERO, J.:

On May 11, 1993, Chou Cheung Yih, alias Jack Chou, a Taiwanese national, was
kidnapped in Multinational Village, Paraaque, Metro Manila. He was kept captive for
seven days until his family paid a ransom of P10 Million. Only then was he set free.
Thereafter, accused-appellants Reynaldo Berroya, SPO4 Jose Vienes, Francisco
Kit Mateo and thirteen (13) others, were charged with the crime of kidnapping in an
Information dated September 22, 1993 which reads as follows:
 That on or about 11 May 1993 at about 12:30 o clock in the afternoon and
until 17 May 1993 along Sucat Road near Multinational Village, Paraaque,
Metro Manila and within the jurisdiction of this Honorable Court, the above
named accused conspiring, confederating, mutually helping one another and
grouping themselves together, did then and there, by force, intimidation and
the use of firearms, wilfully, unlawfully and feloniously take, carry away,
kidnap and deprive Chou Chu (sic) Yih alias Jack Chou, a Taiwanese
investor, of his liberty and thereafter brought and detained him in a safehouse
in Paraaque, Metro Manila, Philippines, against his will and consent for the
purpose of extorting ransom for his release which was effected after payment
of the amount of HK$ 2,963,962.00 or its equivalent of P10 M thereafter
divided by and among the accused themselves; to the loss, damage and
prejudice of said Chou Chu (sic) Yih alias Jack Chou.

CONTRARY TO LAW. (Record, p.1)

On July 28, 1993, Branch 148 of the Regional Trial Court of Makati, presided over
by the Honorable Oscar B. Pimentel, rendered judgment in this wise, convicting
accused-appellants Berroya, Vienes, and Mateo:

WHEREFORE, premises considered:

1. With respect to accused Chief Superintendent Dictador Alqueza for

insufficiency of evidence and serious doubt as to his guilt he is hereby
ACQUITTED and his release from confinement is hereby ordered unless he
is being detained for some other legal cause or causes or by virtue of a legal
order.
2. With respect to Lt. Col. Danilo Sta. Clara likewise for insufficiency of
evidence and for reasons of reasonable doubt he is likewise ACQUITTED.
His immediate release from confinement is hereby ordered unless he is being
detained for some other legal cause or causes or by virtue of a legal order.
3. With respect to accused Lavinia Mateo, for insufficiency of evidence and
for reasons of reasonable doubt, she is hereby ACQUITTED and her
immediate release from confinement is hereby ordered unless she is being
detained for some other legal cause or causes or by virtue of a legal order.
The acquittal of these three (3) accused does not necessarily mean that before
their God and their conscience, they have not committed the crime. Only,
there is lacking in evidence (sic) to support their convictions. Had there been
sufficient evidence against them, they will be convicted.
4. AND FINDING SENIOR SUPERINTENDENT REYNALDO
BERROYA, SPO4 JOSE VIENES AND FRANCISCO MATEO guilty
beyond reasonable doubt of the crime of kidnapping defined and penalized
under Art. 267 of the Revised Penal Code and as the crime was committed
prior to the effectivity of Republic Act 7659, the aforesaid accused Senior
Superintendent Reynaldo Berroya, SPO4 Jose Vienes and Francisco Mateo
alias Kit are hereby sentenced to suffer the penalty of Reclusion
Perpetua with all the accessories of the law.

Further, the three (3) accused are hereby ordered to pay Chou Cheng Yih alias Jack
Chou, a Taiwanese businessman, jointly and severally

1. TEN MILLION PESOS (P10,000,000.00) which is the unrecovered ransom money.

2. ONE MILLION PESOS (P1,000,000.00) for actual damages.

3. TWO MILLION PESOS (P2,000,000.00) for and as moral damages.

4. The amount of ONE MILLION PESOS (P1,000,000.00) for exemplary damages,

and;

5. The amount of P400,000.00 for and as attorneys fees.

No civil liability is incurred by accused Chief Superintendent Dictador Alqueza, Lt.

Col. Danilo Sta. Clara and Lavinia Mateo.

With costs against Senior Superintendent Reynaldo Berroya, SPO4 Jose Vienes and
Francisco Kit Mateo.

The immediate confinement of Senior Superintendent Reynaldo Berroya, SPO4 Jose

Vienes and Francisco Kit Mateo to the Bureau of Corrections, Muntinlupa, Metro
Manila is hereby ordered.

SO ORDERED. [1]

Parenthetically, not one of the prosecution witnesses saw the actual abduction. All
the evidence concerning accused-appellants participation in the crime is circumstantial.
The main issue in this appeal is therefore: Whether or not the circumstantial evidence
linking the accused-appellants to the kidnapping is sufficient to sustain a judgment of
conviction beyond reasonable doubt.
The facts, as culled from the record, are as follows:
Chou Cheung Yih, a Taiwanese national, was abducted by four (4) men in
Multinational Village, Paraaque, Metro Manila on May 11, 1993. His abductors seized
his cellular phone (No. 3061859) and other personal effects. The following day, his
father, Chou Cheng Fu, who was in Taipei City, was reached via telephone by the
kidnappers. They demanded a ransom of US$ 5 Million, but after several phone calls
and a protracted negotiation, they agreed upon P10 Million. The money was to be
remitted to the Fu Wa San Company, a Hongkong firm, through a jewelry store in
Taiwan.
On May 17, 1993, Chou Cheng Fu remitted the money, using a check, to Hongkong
through the aforesaid jewelry store. Chou Cheung Yih was consequently released in the
afternoon of that same day. When presented on the witness stand, Chou Cheung Yih
failed to identify anyone of the accused.
Prescinding from the foregoing, the prosecution presented Chief Inspector Wilfredo
Reyes, who testified that on April 21, 1993, an informer of his, a certain Michael
Evasco, [2]approached him and informed him of Francisco Kit Mateos invitation to join a
kidnap for ransom operation. Reyes knew Kit as an acquaintance of Col. Berroya, as
the former used to visit the latter at his office in 1992 and 1993. Reyes and Berroya
were then assigned to Task Force Gemini and Task Force Lawin. Reyes signifying
willingness to join the operation, asked for the name of the possible victim, but Evasco
declined.
The next morning, Reyes went to Col. Panfilo Lacson to inform him about the
kidnapping scheme. Thereupon, he was designated to go undercover to infiltrate the
group of Kit Mateo.
On April 30, 1993, C/Insp. Reyes was introduced by Evasco to Kit Mateo. Kit Mateo
told him, Okey, tutal Sir, pare-pareho naman tayong mga bata ni Berro saka ni Barako,
okey lang, sige puwede kang sumama. It was understood by Reyes that Berro referred
to accused-appellant while Barako referred to General Alqueza. Doubtful of Kit Mateos
sincerity, Evasco told the former, Pare, itong sa atin ay pera-pera lang, wala tayong
hulugan dito. Kit Mateo responded: Hindi, totoo ito. Totoo itong gagawin natin. Ang mga
taong kasama natin dito ay si Colonel Berroya, si General Alqueza, ang classmate ni
Col. Berroya na si Colonel Danilo Sta. Clara Again the subject of the kidnap operation
remained undivulged.
 On May 7, 1993, Reyes together with Evasco, met with Kit Mateo at the latters
office, Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila.
Several other persons, including appellant Jose Vienes and William Teng, a criminal
known to Reyes, were present thereat. Kit Mateo held a meeting were they were given
their respective assignments. Michael Evasco was to lead the group who would conduct
the actual abduction. Two back-up teams were designated, with SPO4 Vienes heading
one of the two teams. Reyes was tasked to remain at Camp Crame to monitor the
activities of the operating units. As Evasco still evinced some signs of apprehension,
Mateo instructed his wife, Vinia Mateo, to call accused-appellant Berroya. She, in turn,
passed it on to Lenny Pagtakhan, one of the persons present, who later informed Kit
that wala pa si Berro, pero nagpapa return call ako. Moments later, Pagtakhan advised
Kit Mateo that Berroya was already on the line. Kit Mateo talked over the phone and
afterwards gave a thumbs up sign saying Okey na pare, at ito pala ay may clearance na
kay Barako.
On May 10, 1993, Reyes again went to the office of Kit Mateo. It was then that he
met and was introduced to accused-appellant Berroya, with Kit Mateo saying to
Berroya Sir, ang bata nyo ni Barako, kasama rin natin yan. In response, Berroya
said: Willy, pagbutihin nyo lang, ito naman ay alam ni Barako. Thereafter, they talked of
other things, allegedly because Reyes was ashamed to discuss the kidnap operation
with Berroya, who was his superior.
It was only on May 20, 1993 when Reyes came to know of the Chou kidnapping,
when Col. Lacson told him about it and ordered him to verify whether Kit Mateos group
was responsible. That evening, he met with Evasco, who made known to him how the
group kidnapped Chou. Evasco also told him that Berroya sent Kit Mateo and William
Teng to Hongkong to collect the ransom money. He was given a black paper bag
containing money. That same night, he turned over the money to Sr./Supt. Basilio
Lucero, who issued to him an unofficial handwritten receipt for P50,000.00.
In addition to C/Insp. Reyes testimony, the prosecution also presented Lenny
Pagtakhan, a comadre of Kit Mateo and his wife. Pagtakhan testified that she was
present the whole day of May 7, 1993 at Kit Mateos office. There were several persons
present, including appellant Vienes and William Teng. With Kit Mateo presiding, the
group had a meeting regarding the intended abduction of a Taiwanese national. Michael
Evasco was charged with taking the Taiwanese while SPO4 Jose Vienes and Kit Mateo
were to act as back-up.During the meeting, Kit told his wife, Vinia Mateo, to call Berro,
referring to Sr/Supt. Reynaldo Berroya. She in turn instructed Pagtakhan to call
Berro. She called Berro up but as he was not there at his office, she paged him through
his beeper. After a time, Berroya returned the call. Receiving the call, she informed
Mateo that Berro was on the line. As the two conversed, she listened through the
extension line, thus she overheard Mateo say Sir, I have already given instructions to
the group. Accused-appellant Berroya told Mateo to call him the next day or that they
should meet on Monday. Mateo replied in the affirmative.
On May 10, 1993, the whole group, including Mateo, Vienes and Teng, held another
meeting to discuss the plan to kidnap a Taiwanese national. Kit Mateo initially presided
over the meeting. However, accused-appellant Berroya took over when he arrived. He
was accompanied by C/Insp. Wilfredo Reyes. The meeting lasted until midnight. She
overheard Berroya say: O sige kailangan malinis ang pagkuha ng tao.
Pagtakhan further testified that in the afternoon of May 11, 1993, Kit Mateo and his
group, including appellant Vienes and Teng, but without accused-appellant Berroya and
Reyes, arrived at the office. They were excited, with Vinia Mateo telling her that the
Taiwanese was already downstairs. She, however, did not get to see the victim.
A week or two later, she was with appellants Mateo and Vienes when the latter
distributed the ransom money. They went to an undisclosed motor shop in Quezon City
where Mateo and Vienes, after conversing with Berroya, gave several bundles of money
to the latter (which as far as she knew was P1 Million).
On the other hand, after the kidnapping incident, an investigation was conducted by
the Presidential Anti-Crime Commission, through Col. Panfilo Lacson and C/Insp.
Michael Aquino, in coordination with Taiwanese and Hongkong authorities, Piltel and
the Philippine Long Distance Telephone Company. Based on the record of phone calls
provided by Piltel and the Royal Hongkong Police, a phone call was placed on May 11,
1993 from Chou Cheung Yihs cellular phone (No. 3061859) to Telephone No. 79-37-85,
the telephone number of Mateos Le France office. Then, on May 14, 1993, another call
was made from the same cellular phone to Telephone No. 78-35-72, a telephone
registered under the name of Samuel Abellera, a neighbor of accused-appellant at
Masbate Street, Project 4, Quezon City.
On the same day, Telephone No. 882-27-70 (Hongkong), registered under the
name of Lee Kim Jok, called 817-20-39, the direct line to the Office of the Chief of
Special Operations Group, Southern Police District Command, Fort Bonifacio, Makati,
Metro Manila. At that time, the Chief of said office was accused-appellant. On the same
day, Cellular Phone No. 305-44-65 registered under accused-appellant Berroyas name
placed a call to Telephone No. 79-37-85, the number of Kit Mateos office.
On the other hand, the aforesaid Tel. No. 79-37-85 made nine calls to Tel. No. 882-
27-70 (Hongkong); one on May 14; one on May 15; four on May 17; and another three
on May 18, 1993 during the ransom negotiations for the release of Chou Cheung Yih
and one day after his release.
Conversely, Tel. No. 882-27-70 (Hongkong) called appellant Mateos office on May
14, 15 and 16, 1993 also during the period of ransom negotiation.
Tel. No. 882-27-70 (Hongkong) also made four calls on May 15, 1993, and three
calls on May 17, 1993 to Chou Cheng Fu, father of the kidnap victim.
Tel. No. 882-27-70 (Hongkong) was traced to Flat B, 8th Floor, Hyde Park Mansion,
53 Peterson Street, Hongkong, which apartment was found to be registered in the name
of Lee Kim Jok and Emil Ong alias William Teng or Reynaldo Manio.
On May 14, 1993, appellant Mateo and William Teng went to Hongkong.
On May 17, 1993, William Teng collected in Hongkong the ransom money paid by
Chou Cheng Fu. This was evidenced by the fax message of Hung Chee Co. in Taipei,
to the Fu Wa San Co. dated May 17, 1993, as well as the check stub dated May 17,
1993 in the name of Reynaldo Manio. The check amounted to HK$ 2,962,963.00.
Against this factual backdrop, the Court a quo found accused-appellants Berroya,
Vienes, and Mateo guilty, as conspirators in the kidnapping of Chou.
Hence, accused-appellants recourse to this Court, wherein they raise several errors
of the lower court, summarized as follows:
1. THAT THE LOWER COURT ERRED IN ACCEPTING THE VERSION OF
PROSECUTION WITNESSES LENNY PAGTAKHAN AND CHIEF INSPECTOR
WILFREDO REYES, DESPITE THE CLEAR SHOWING THAT THESE WITNESSES
ARE NOT POSSESSED OF THE REQUIRED CREDIBILITY AND
TRUSTWORTHINESS TO OVERCOME THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE IN FAVOR OF ACCUSED-APPELLANTS.
2. THAT THE LOWER COURT ERRED IN HOLDING THAT THERE WAS
CONSPIRACY BETWEEN ACCUSED-APPELLANTS.
3. THAT THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANTS
DESPITE THE ABSENCE OF SUFFICIENT CIRCUMSTANTIAL EVIDENCE TO
ESTABLISH PROOF BEYOND REASONABLE DOUBT OF THE GUILT OF THE
ACCUSED-APPELLANTS.
We find the petition to be impressed with merit.
Section 14(2), Article III of the 1987 Constitution provides that (i)n all criminal
prosecutions, the accused shall be presumed innocent until the contrary is proved
Given this presumption, the State must thus prove the guilt of the accused beyond
reasonable doubt, and this presumption prevails unless overturned by competent and
credible proof. The State is required, in the discharge of the burden imposed upon it, to
establish by proof all the essential elements of the crime with which the defendant is
charged in the indictment, and to establish beyond a reasonable doubt that the accused
is guilty of said crime. In the absence of such a degree of proof of the defendants guilt,
he is entitled to an acquittal, regardless of whether his moral character is good or bad. It
is not sufficient that the preponderance or the weight of the evidence points to the guilt
of the accused, x x x as evidence showing a mere possibility of guilt is insufficient to
warrant a conviction.[3]
The necessity for proof beyond reasonable doubt lies in the fact that (i)n a criminal
prosecution, the State is arrayed against the subject; it enters the contest with a prior
inculpatory finding in its hands; with unlimited means of command; with counsel usually
of authority and capacity, who are regarded as public officers, and therefore as
speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast
to that of defendant engaged in a perturbed and distracting struggle for liberty if not for
life. These inequalities of position, the law strives to meet by the rule that there is to be
no conviction when there is a reasonable doubt of guilt. [4]
However, proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Suffice it to say that the law
requires only moral certainty or that degree of proof which produces conviction in an
unprejudiced mind.[5]
Granted that the evidence adduced by the State to prove the guilt of the accused is
purely circumstantial, would the same amount to such as to prove beyond reasonable
doubt that the accused-appellants committed the crime charged?
The following principles must be borne in mind. First, crimes are not usually
intended to be accomplished under the direct gaze of witnesses; nor is the planning
thereof done in public. Hence, the necessity of circumstantial evidence to prove the
same. But for circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be 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. [6] Thus, for circumstantial evidence to be
sufficient for conviction, the following requisites must concur: (i) there must be more
than one circumstance to convict; (ii) facts on which the inference of guilt is based must
be proved; and (iii) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
While it is true that no general rule has been formulated as to the quantity of
circumstantial evidence which will suffice, the Solicitor General believes that in the
instant case the prosecution has failed to overthrow the constitutional presumption of
innocence in favor of appellant Berroya.
We agree. Furthermore, as regards appellant Vienes, we find that the State has
also failed to adduce the quantum of proof necessary to convict him.
We shall discuss the evidence and our findings as the same pertain to each of the
appellants.
With respect to accused-appellant Berroya, the trial court implicated him as a
principal, allegedly through his conspiracy with the group which kidnapped Chou
Cheung Yih. In the words of the trial court:

Now, with respect to Senior Superintendent Reynaldo Berroya:

The Court is convinced that he indeed presided in the meeting held on May 10, 1993
at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong, Metro Manila.
The act of presiding over a meeting to plan the kidnapping of a person and then the
kidnapping took place and ransom was paid is a very conclusive proof that the chain
of evidence is complete. It is unbroken. This is further bolstered by the fact that the
person tasked to do the actual kidnapping, the back-ups and others who are involved
were present during that meeting.

Another evidence that shows the participation of Senior Superintendent Reynaldo

Berroya is his call to the office of Francisco Mateo on May 14, 1993, after the
kidnapping and the telephone he used is Cellular Phone No. 305-44-65. And also
there were other calls made that will show that he is connected with the kidnapping
because phone no. 8822770, being used by Reynaldo Manio in Hongkong called
Senior Superintendent Reynaldo Berroya at the latters office at SOG, Southern Police
District, Fort Bonifacio, Makati, Metro Manila. This was after the kidnapping and
prior to the payment of ransom. As has been stated the ransom has been taken by
Reynaldo Manio alias William Teng, one of those present during the meeting of May
10, 1993 which was partly presided by Senior Superintendent Reynaldo Berroya.

The defense of Senior Superintendent Reynaldo Berroya are alibis and denials, the
weakest defenses that can be put up by any accused. His defenses failed to overcome
the evidence against him.

The fact of his conspiracy with the group who kidnapped Chou Cheng Yih has been
established beyond reasonable doubt.

If there is a planning with respect to the commission of the crime and there are
subsequent events that will lead to the conclusion that those who attended the meeting
to pursue the crime then they become liable not only as accessory or accomplice but
as principal.
[7]

The evidence taken against him consists of the testimonies of C/Insp. Reyes and
Lenny Pagtakhan, as well as the record of phone calls made from and to him.
However, as regards the testimony of C/Insp. Reyes, a substantial part thereof is
inadmissible. It must be stressed that Reyes never learned the identity of the intended
victim, but only that a kidnap operation was being planned by Kit Mateos group.
Furthermore, he never participated in the actual kidnapping, but was only told the
details thereof by Michael Evasco on May 20, 1993. A witness can testify only to those
facts which he knows of his personal knowledge, that is, which are derived from his own
perception... [8] Thus, the same is hearsay which is inadmissible in evidence.
Kit Mateos statement on April 30, 1993 to the effect that Okey, tutal Sir, pare-
pareho naman tayong mga bata ni Berro saka ni Barako, okey lang, sige puwede kang
sumama, as well as Mateos statement to assuage Evascos fears in this wise Hindi,
totoo ito. Totoo itong gagawin natin. Ang mga taong kasama natin dito ay si Colonel
Berroya, si General Alqueza, ang classmate ni Col. Berroya na si Colonel Danilo Sta.
Clara are likewise inadmissible against accused-appellant Berroya as the rights of a
party cannot be prejudiced by an act, declaration, or omission of another... [9] Res inter
alios acta.
With reference to the May 7, 1993 telephone conversation, Kit Mateo supposedly
talked to Berroya in this wise: Okey na pare, at ito pala ay may clearance na rin kay
Barako. There is no showing that it was indeed Berroya that Kit was talking to. And
furthermore, even if it was indeed accused-appellant, the same is ambiguous at best.
There is no proof as to the exact conversation between Kit and the accused-appellant,
nor that the statement alluded to refers to the kidnapping of Chou.
The same observation goes for Berroyas alleged statement to Reyes on May 10,
1993 that: Willy, pagbutihin nyo lang, ito naman ay alam ni Barako. Again, the utterance
is equivocal. In fact, according to Reyes, other than said statement, the kidnapping
operation was never discussed by him and accused-appellant on that day.
As to Reyes contention that he was tasked to infiltrate Mateos group, the same is
open to doubt. It is undisputed that he never submitted any report, nor was he
mentioned in the PACC reports. The P50,000.00 allegedly given to him by Evasco was
evidenced only by an unsigned handwritten receipt, and the same was never included
by PACC in its reports to the Department of Justice regarding the matter. Lastly, Reyes
was supposedly invited by Mateo to participate in the kidnapping, yet it was only on May
20 when he learned of the same.
Moreover, it is odd that it was Evasco, the supposed emissary between Mateo and
Reyes, and one of those supposed to be involved in the operation, who showed signs of
apprehension at the outcome of the plan, such that he needed to be given proof of
accused-appellant Berroyas participation in the nefarious plan, while Reyes, the
newcomer, never became wary of the groups bona fides. It can thus be seen from the
above discussion that C/Insp. Reyes testimony is riddled with inconsistencies and
infirmities such that it lacks that degree of conclusiveness required to convict the
appellant.
Similarly, Lenny Pagtakhan, the other principal witness, gave inconclusive
testimony as to appellant Berroyas complicity in the crime charged.
She testified that Kit Mateo and accused-appellant Berroya had a telephone
conversation on May 7, 1993, where she overheard Mateo tell appellant that he had
given instructions to the group. Appellant Berroya then said, All right, call me up
tomorrow or let us meet on Monday. Standing alone, there is nothing incriminatory in
the above statement.
With respect to the May 10, 1993 meeting to kidnap a Taiwanese national, allegedly
presided over by Berroya, the actual name of the victim was never mentioned. In fact,
Pagtakhan admitted that she was not a participant thereof, as the same was held
behind closed doors. On cross-examination, she changed her testimony, saying that the
statement O sige kailangan malinis ang pagkuha ng tao, which she initially imputed to
appellant was not said by Berroya, but actually by Kit Mateo.
Additionally, her version of facts conflicts with that of C/Insp. Reyes. She alleged
that on May 10, 1993, the group discussed the kidnap scheme from 5:00 p.m. until
midnight. Reyes, on the other hand, denies that there was a discussion of the same,
purportedly because he was ashamed to discuss the same with his superior. Her
narration that accused-appellant Berroya arrived at the Le France office accompanied
by Reyes is contradicted as well by Reyes, who said that accused-appellant was
already at the Le France office in the evening of May 10, 1993 when he arrived.
As for the money allegedly given to Berroya by Kit Mateo, there is no proof that it
came from the ransom money paid by Chou Cheng Fu.
Given the above disquisition, the testimony of Lenny Pagtakhan, with regard to
appellant Berroya, cannot likewise be accorded the trustworthiness and credibility
required of a witness in a criminal case.
Finally, as to the matter of the phone calls presented in evidence as allegedly
incriminatory of Berroya, the records only identify the numbers where the calls were
made and received. They do not show who were the actual caller and receiver thereof;
nor do they reveal the matters discussed during the telephone conversations. To inject
sinister meaning to these calls is risky, being fraught with speculation.
As regards the first call, the same was made from Chous cellular phone at the time
that he was already in captivity. However, the call was directed to Samuel Abellera, a
neighbor of accused-appellant. It proves nothing as to the guilt of the accused. Berroya
and his neighbor are two distinct individuals, and absent proof that it was accused-
appellant Berroya who received the call, the same cannot be held against him.
The second call from Hongkong to the Special Operations Group, Southern Police
District Command, Fort Bonifacio, again does not constitute conclusive proof of
Berroyas guilt. Although appellant was the chief of said office, there is no showing that
he was the one who received the call. In fact, said phone was registered in the name of
the government. Moreover, the prosecution witness failed to state under oath that the
same was not being used by other members of the Special Operations Group.
As for the third call made on May 14, 1993, there is no evidence as to the subject
matter of the conversation thereof. Worse, Kit Mateo never went to his office on that day
as he was in Hongkong at the time. Then too, it must be borne in mind that Mateo and
accused-appellant Berroya were longtime acquaintances. A telephone call between
them, if it transpired at all, is not highly improbable or even suspect.
In the words of the Solicitor General, the theory of the prosecution against appellant
Berroya has too many loose ends that it has dismally failed to tie up to the satisfaction
of the constitutional requirement of proof beyond reasonable doubt. Appellant Berroyas
twin defenses of alibi and denial, to be sure, are weak, but the incurably ambiguous
evidence of the prosecution simply cannot justify appellant Berroyas condemnation for
the rest of his life where there are disturbing whispers of doubt that he is guilty. [10]
As to appellant Jose Vienes, the evidence presented against him by the State only
establishes his presence at the May 7, 1993 and the May 10, 1993 meeting at the Le
France office in Mandaluyong. During those meetings, a kidnapping scheme, with an
undisclosed Taiwanese national as victim, was hatched. Appellant Vienes was to serve
as backup during the actual kidnapping. Additionally, Vienes is said to have been
present on May 11, 1993 at the Le France office when the group allegedly had the
kidnap victim at the basement thereof.
Again, it must be emphasized that not one of the prosecution witnesses saw the
actual kidnapping. No one saw appellant Vienes participate therein. Even the victim
failed to identify him as one of the perpetrators thereof. In point of fact, the trial court
convicted him as a principal largely due to his alleged conspiracy with Mateo. The
finding of conspiracy was based on his close friendship with Mateo and his presence in
those two crucial meetings. As the trial court found it:

With respect to SPO4 Vienes, said accused was present during the meetings of May 7
and 10, 1993 at Le France, Jovan Condominium, Shaw Boulevard, Mandaluyong,
Metro Manila. He was given task allocation (sic) as a back up of Michael Evasco and
that on May 11, 1993, SPO4 Jose Vienes was present at Jovan Condominium at Le
France Office, Mandaluyong, Metro Manila after the kidnapping of the Taiwanese
Chou Cheung Yih. He is a close friend of Francisco Kit Mateo and he even
recommended to Kit Mateo a friend to become a janitor in the office of Francisco Kit
Mateo.

SPO4 Jose Vienes cannot impute any evil motive, such as revenge, spite or whatever
that will prompt Lenny Pagtakhan and Chief Inspector Wilfredo Reyes to testify
against him.

His defense consisting of mere denials and alibi are so weak compared to the positive
identification against him. His having been at Le France, Jovan Condominium, Shaw
Boulevard, Mandaluyong, Metro Manila together with those who actually kidnapped
Chou Cheung Yih is a proof that indeed he complied with the plan for him to be a
back up. [11]

It must be kept in mind that conspiracy must be established by positive and

conclusive evidence. It cannot be based on mere conjectures but must be established
as a fact. The same degree of proof required to establish the crime is necessary to
support a finding of the presence of conspiracy, that is, it must be shown to exist as
clearly and convincingly as the commission of the offense itself. [12] An assumed intimacy
is of no legal bearing inasmuch as conspiracy transcends companionship. [13]
Furthermore, in order to hold an accused liable as co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance or
furtherance of the conspiracy. That overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the time of the commission of the crime, or by exerting
moral ascendancy over the other co-conspirators by moving them to execute or
implement the conspiracy. [14] Hence, the mere presence of an accused at the discussion
of a conspiracy, even approval of it without any active participation in the same, is not
enough for purposes of conviction. [15] Thus, assuming Vienes was a participant in the
planning to abduct a Taiwanese national, in the absence of eyewitnesses to the actual
abduction, there is a paucity of evidence as to whether or not Vienes carried out his part
of the plan.
Given the above, it becomes painfully apparent that Vienes presence at the May 7
and May 10 meetings is insufficient to convict him. In fact, even the evidence as to his
presence in the May 10, 1993 meeting is inconclusive. While both Reyes and
Pagtakhan pinpoint appellant Vienes as present in the May 7 meeting, Reyes does not
say that he was present on May 10. Pagtakhan, on the other hand, says he was. His
presence at Le France on May 11, 1993, when the victim was said to be downstairs,
cannot be held against him, as the same is belied by the prosecution itself, which claims
that the victim was never brought to Le France.
 Consequently, without proof that appellant Vienes personally took part in the
execution of the kidnapping, there is only at most, a conspiracy with the other accused.
Conspiracy alone, without the execution of its purpose, is not a crime punishable by law
except in special cases, [16] none of which is present in the case at bar; hence, appellant
Vienes cannot be held criminally liable.
However, accused-appellant Kit Mateo tells of an altogether different story. The
facts on record as regards him constitute an unbroken chain leading to the fair and
reasonable conclusion that he is guilty of kidnapping.
While the testimonies of prosecution witnesses C/Insp. Wilfredo Reyes and Lenny
Pagtakhan may not have produced the moral certainty necessary to convict appellants
Berroya and Vienes, the same, coupled with the other pieces of evidence gathered by
the prosecution, are more than sufficient to overthrow the presumption of his innocence
and establish his culpability beyond reasonable doubt.
Consider the following antecedents. It has been proved that indeed there was a plot
to kidnap a Taiwanese national, albeit his identity was unknown. The same was
formulated on May 7 and May 10, 1993. Appellant Mateo was present at the aforesaid
meetings; in fact, he presided over the same. William Teng was present at these
meetings.
In the afternoon of Chou Cheung Yihs abduction, his cellular phone was used by his
abductors to call Mateos Le France office. During the ransom negotiations, there was
an exchange of phone calls between appellant Mateos telephone and William Tengs
place in Hongkong. During the same period, William Tengs telephone called up the
victims father seven times. Appellant Mateo presented not a single shred of evidence to
rebut or explain the reason for such calls. Certainly, such exchange of phone calls
cannot be considered merely coincidental.
On May 14, 1993, appellant Mateo went to Hongkong with William Teng, allegedly
to buy spare parts for a Volkswagen used for racing. Appellant never presented any
proof of his purchase of said spare parts, nor that such spare parts were unavailable in
the Philippines. His reason for going to Hongkong is vague and tenuous.
The above-mentioned circumstances further bolster the inculpatory link between
appellant Mateo and William Teng, the person who personally collected in Hongkong
the ransom money remitted by Chou Cheung Yihs father on May 17, 1993.
Taken altogether, the unequivocal testimonies of the principal witnesses pointing to
appellant Mateo as the one who presided over the May 7 and May 10 meeting at Le
France; William Tengs presence at the aforesaid meetings; appellants close association
with William Teng; appellants trip to Hongkong together with William Teng; the series of
calls between Mateos office and Tengs flat in Hongkong; the calls from Tengs flat to the
victims father during the same period; and William Tengs collection and receipt of the
ransom money all collectively and ineluctably constitute an unbroken chain leading to a
single conclusion that there was a consummated conspiracy between appellant Mateo
and Teng to kidnap Chou Cheung Yih for ransom.
Appellant Mateo assails the credibility of prosecution witnesses Reyes and
Pagtakhan. Although the same cannot be relied upon to convict appellants Berroya and
Vienes, the same does not hold true as regards appellant Mateo. The testimony of a
witness may be believed in part and disbelieved in part, as the corroborative evidence
or the lack thereof and the probabilities and improbabilities of the case may
require. [17] We find appellant Mateo guilty of the crime charged.
Now for a final point that needs must be stressed lest it be misconstrued that the
ruling of this Court is a categorical declaration as to the innocence of accused-
appellants Berroya and Vienes. It is the law that requires proof beyond reasonable
doubt. This, the prosecution has failed to even approximate. It does not mean that
accused-appellants are lily-white or as pure as driven snow. To be sure, if the
inculpatory facts and circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused of the crime charged and the
other consistent with their guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction. This, from the beginning, has been
the lodestar of our accusatorial system of criminal justice.
 We call to mind what Alfonso El Sabio was reputed to have said a long time
ago: Mas vale que queden sin castigar diez reos presuntos, que se castigue uno
inocente.[18]
WHEREFORE, premises considered, the decision appealed from with respect to
accused-appellant REYNALDO BERROYA and SPO4 JOSE VIENES is hereby
REVERSED and ASIDE. Accused-appellants Berroya and Vienes are acquitted of the
charge of kidnapping on grounds of reasonable doubt and their immediate release from
custody is ordered unless they are being held on other legal grounds.
As for accused-appellant FRANCISCO KIT MATEO, the decision appealed from is
hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, and Francisco, JJ., concur.
Panganiban, J., in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 130372 July 20, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUIAMAD MANTUNG, accused-appellant.

ROMERO, J.:

Accused-appellant Guiamad Mantung was charged with the complex crime of Robbery with Homicide allegedly
committed as follows:

That on or about the 10th day of August 1996, in the Municipality of Parañaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with
intent to gain and without the knowledge and consent of the owner of Cebuana Lhuiller Pawnshop
and by means of force, violence and intimidation employed upon the persons of Renjie Balderas
and Maribel Mayola with the use of a gun, did then and there willfully, unlawfully and feloniously
take, rob and divest cash money worth P62,000.00 and pieces of jewelry amounting to
P5,300,000.00 belonging to said Cebuana Lhuiller Pawnshop, to the damage and prejudice of the
owner thereof herein represented by Ricardo Diago, in the total amount of P5,362,000.00; that on
the occasion of said Robbery, the above-named accused, with intent to kill and without justifiable
reason, did then and there willfully, unlawfully and feloniously attack, assault and shoot with a gun
said Renjie Balderas and Maribel Mayola, thereby inflicting [upon] them serious gunshot wounds
which caused their death.

CONTRARY TO LAW. 1

Upon arraignment, accused-appellant, with the assistance of counsel de oficio, Atty. Dante O. Garin of the Public
Attorney's Office (PAO), entered a plea of not guilty to the offense charged in the Information.2

After trial, Judge Zosimo V. Escano of the Regional Trial Court of Paranaque, Branch 259 rendered the assailed
Decision, the decretal portion of which reads:

WHEREFORE, premises considered, finding GUIAMAD MANTUNG "GUILTY" beyond reasonable

doubt, for the complex crime of Robbery with Homicide as defined and penalized under Art. 294 of
the Revised Penal Code as amended by RA 7659, and with the presence of the two generic
aggravating circumstances of evident premeditation and treachery, this Court hereby sentences
said accused to the maximum penalty of death and to suffer the accessory penalties provided by
law specifically Art. 40 of the Revised Penal Code. For the Civil liability, he is hereby further
condemned to indemnify the heirs of Renjie Balderas and Maribel Mayola the following:

1. P70,000 — reperesenting funeral and burial expenses for each of the Balderas and Mayola
families;

2. P50,000 — as civil indemnity for each of the Balderas and Mayola families for the death of
Renjie and Maribel;
 3. P500,000 — as moral damages for each of the Balderas and Mayola families;

4. P500,000 — as exemplary damages for each of the Balderas and Mayola families.

Guiamad Mantung is likewise ordered to indemnify the Cebuana Lhuiller Pawnshop the amount of
P6,641,420.00 representing the property lost by the said company less the amount of the jewelry
recovered from the accused.

xxx xxx xxx

SO ORDERED. 3

The capital punishment of death having been imposed, the case is now before this Court for automatic review.

The facts, as established by the prosecution, are as follows:

On August 10, 1996, a Monday, at about 8:00 o'clock in the morning, prosecution witness Mary Ann Gordoncillo was
on her way to work as district manager for Cebuana Lhuiller Pawnshop when she received a message through her
pager informing her that Maribel Mayola, an employee at the Maywood, BF Paranaque branch of Cebuana Lhuiller
Pawnshop, did not go home the previous Saturday. As Mayola held the keys to the Maywood branch, the shop could
not be opened. After receiving such information, Gordoncillo herself tried calling the Maywood branch but no one
answered the phone. She then instructed a messenger to get duplicate keys to the Maywood branch from the head
office in Magallanes. Meanwhile, Gordoncillo received another call informing her that Renjie Balderas, another
employee at the Maywood branch, did not go home the previous Saturday as reported by her husband. Alarmed,
Gordoncillo proceeded to the Maywood branch where she found the mother of Maribel and the husband of Renjie
waiting outside the shop. She tried to open the door but it did not budge. She also saw that the main door which
usually had four locks had only two locks at that time and the airconditioner was running. Suspecting that something
had gone wrong inside the branch office, Gordoncillo called for the police. 4

Another prosecution witness, Ricardo Diago, area manager of Cebuana Lhuiller Pawnshop was also informed
through his pager that the Maywood branch was still closed at 9:30 in the morning of August 10, 1996, when
ordinarily, it should have opened at 8:30 in the morning. Finding this unusual, Diago immediately proceeded to the
said branch office where he was met by Gordoncillo and several policemen. The employees detailed at the Maywood
branch could not be found; the security guard was also nowhere in sight. Diago likewise observed that aside from the
airconditioning, the lights inside and outside the shop were also on. He peeped through a window of the shop and did
not see anything unusual but he noted a foul odor emanating from the office. At around 11:00 o'clock in the morning,
Myrna Oblanda, another employee of Cebuana Lhuiller arrived with the duplicate keys and it was only then that Diago
was able to open the back door leading to the kitchen of the branch office. 5

According to Gordoncillo, when she entered the branch office through the back door she observed at first that
everything seemed intact. No one was in the kitchen area or on the second floor. However, when she opened the
door leading to the pawnshop, she saw that the table that used to be in the safe room was already outside and the
cash drawer had been emptied of its contents. The counter was in disarray and there was a letter addressed to her. A
holster had been placed on top of the letter which appeared to have been written by accused-appellant Mantung, the
6

security guard assigned to the Maywood branch. Mantung wrote in Filipino that he killed Maribel and Renjie because
they gave him pork which his Moslem religion prohibited him from eating. He likewise admitted taking the cash and
jewelry inside the vault, claiming that he needed money. Later, another letter addressed to his wife, this time written
7

in Moslem, was found among the pages of the office logbook. 1âw phi1.nêt

The foul odor permeating the branch office was later traced to the vault room where the dead bodies of Maribel and
Renjie were found sprawled on the floor near the vault door. When the safe was opened, it was discovered that the
jewelries kept inside it were all gone. Two empty shells of a 0.38 caliber revolver were likewise recovered from the
8

crime scene by investigating police officer SPO1 Carlos Vasquez of the Parañaque police. 9

According to the certificates of post-mortem examination of the victims which were prepared by Dr. Rolando C.
Victoria and which were admitted by the defense as to their authenticity and due execution, Renjie and Maribel each
sustained a gunshot wound in the head which resulted in their death. 10

As Mantung was the only one in the Maywood branch who remained unaccounted for, investigating officer SPO2
Alberto Abad and P/A Quizon conducted a field inquiry to locate the whereabouts of accused-appellant who was the
guard on duty the last working day before the crime was discovered. The police investigators went to his rented room
at Block 2, Lot 26, Seaside Square, Tambo, Parañaque but did not find him there. Mantung's landlady, a certain
Shirley Reyes, informed the police that in the morning of August 9, 1996, accused-appellant moved out of his rented
room, telling his landlady that he was relocating to Novaliches. Acting on another tip, the investigators then went to an
address in Tierra Nova, Novaliches only to learn that accused-appellant had never been there. 11

The search for Mantung ended on August 24, 1996 in Sultan Kudarat, Cotabato where SPO2 Abad and SPO2
Soquina together with the local police arrested accused-appellant and recovered from him several pieces of jewelry
believed to be part of the loot taken from the pawnshop. 12

After his arrest, accused-appellant was immediately brought to Parañaque where he was presented to the media at a
press conference called by Mayor Joey Marquez. At the said conference, when Mayor Marquez asked Mantung if he
was the one who killed the two pawnshop employees, accused-appellant answered in the affirmative and said that he
killed them because the victims had induced him to eat pork. News reports about Mantung's admission to the killings
appeared in the Philippine Daily Inquirer and the Manila Bulletin the day following the press conference. Clippings of
13

these reports and pictures of the press conference were represented as evidence by the prosecution during trial.
The defense, for its part, presented the lone testimony of accused-appellant Mantung to substantiate his claims of
innocence. Accused-appellant testified that he was a security guard of Sultan Security Agency and was assigned to
the Maywood Branch of the Cebuana Lhuiller Pawnshop since January 2, 1996. He claimed that on August 10, 1996
at about 5:15 in the afternoon, as he was outside locking one of the doors of the shop, three men approached him
from behind and one of them held him at gunpoint. As they pulled him into the pawnshop, Maribel and Renjie saw
what was happening and started to shout for help. One of the men brought him into the comfort room and took his
0.38 caliber revolver, warning him that if he tried to resist he would be killed. Meanwhile, he could still hear Maribel
and Renjie shouting for help from the other room. Thereafter, he heard two gunshots being fired and the cries for help
stopped. About twenty minutes later, the malefactors forcibly took him outside the shop and pushed him into a red car
where he was blindfolded. Afterwards, he felt the car stop and heard the driver tell the others that they were going for
a snack. Left alone in the car with one of culprits, Mantung saw his opportunity to escape when his guard went to buy
cigarettes. Removing his blindfold, he saw that they had reached the pier so he quickly got out of the car and mingled
with people about to board a ship. Afraid that the men were still after him, he boarded the ship and hid in the engine
room for about an hour. After emerging from his hiding place, he got a ticket and stayed on the ship until it reached
Cebu. From there, he boarded another ship and went home to Sultan Kudarat, Cotabato where he was arrested.
Mantung denied that several pieces of jewelry believed to have been taken from the pawnshop were recovered from
him at the time of his arrest. He likewise refuted reports saying that he admitted to the killing of Maribel and Renjie
during the press conference called by Mayor Marquez. According to him, he did not tell anyone about what transpired
on the afternoon of August 10, 1996 because he was confused and did not know what to do.

The taking with intent to gain of personal property belonging to another by means of violence against or intimidation
of persons or using force upon things constitutes robbery and the complex crime of robbery with homicide arises
when, by reason of or on the occasion of a robbery by means of violence against or intimidation of persons, someone
is killed.

In this case, all the essential elements of the crime of robbery with homicide have been established beyond
reasonable doubt by the prosecution. Personal property belonging to or held in trust by the Cebuana Lhuiller
Pawnshop consisting of pieces of jewelry and cash amounting to a total of P6,641,420.00, as testified to by Anthony
Erenea, Audit Manager for Luzon and Acting Head of the Audit Department of Cebuana Lhuiller, had been taken that
fateful day of August 10, 1996. Moreover, during said heist, two employees of the pawnshop, Renjie Balderas and
Maribel Mayola were ruthlessly shot to death.

As to who committed such heinous crime, the evidence adduced during trial all pointed to accused-appellant
Guiamad Mantung as the culprit. His failure to identify, much less describe the alleged malefactors who committed
the crime, his disappearance after the incident and failure to report the crime, the recovery of part of the loot from his
possession at the time of his arrest, and his extrajudicial confession during the press conference clearly establish
Mantung's guilt. Thus, contrary to what the defense interposes, there is no reasonable doubt that can give rise to
accused-appellant's acquittal. To be sure, bare denials, unsubstantiated by convincing evidence are not enough to
engender·reasonable doubt in light of sufficiently telling proof of guilt presented by the prosecution.

A closer scrutiny of the evidence shows why accused-appellant's conviction must stand. First, accused-appellant's
version of the facts is replete with gaping loopholes. For instance, in one case, the Court noted that the most natural
reaction of victims of criminal violence during its perpetration would be to strive to see the looks and faces of their
assailants. However, accused-appellant cannot even describe the three men who allegedly committed the crime
14

despite his claim that the heist lasted for at least twenty minutes and they even took him with them all the way to the
pier. Moreover, while his two female co-employees, defenseless as they were, were shot to death during the robbery,
Mantung, on the other hand was spared. As the trial court stated, a man who is also a security guard and who has
undergone training would be far more of a threat to the robbers than the two women. Moreover, it would have been
wiser for the culprits to finish him off too, thus leaving no eyewitnesses to the crime. Stranger still is Mantung's claim
that the men who took him with them then left him unguarded at the pier, thus giving him an opportunity to flee.

Assuming arguendo that he was as much a victim as Renjie and Maribel, why then did he leave posthaste for Sultan
Kudarat, Cotabato without telling a single soul about the incident? To say that he is uneducated and was too
confused at the time to think clearly is a hollow excuse for his sudden flight. Even a man of low intelligence but with
ordinary prudence would have reported the crime to the authorities at the first opportunity, considering that as
security guard, he was duty-bound to protect his employer's property and keep his co-employees safe. As the saying
goes, "The wicked fleeth even when no man pursueth but the righteous are as bold as a lion." Thus, no reason can
be deduced from Mantung's flight other than that he was driven by a strong sense of guilt and an awareness that he
had no tenable defense.

Second, the recovery of part of the loot from Mantung at the time of his arrest gave rise to a legal presumption of his
guilt. As this Court has held, "[I]n the absence of an explanation of how one has come into the possession of stolen
effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the
aggression and death of the said person and of the robbery committed on him." 15

During the trial it was established that the jewelries recovered from Mantung upon his arrest were taken without a
search warrant. Moreover, since Mantung's apprehension was not by virtue of a warrant of arrest, neither can the
seizure of the jewelry in his possession be considered as one resulting from a search incident to a lawful arrest.
Under these circumstances, the evidence obtained by the police would ordinarily be considered inadmissible because
the same was taken in violation of the accused-appellant's constitutional rights. In this case, however, petitioner failed
to timely object to the admissibility of the evidence in question. Hence, he is deemed to have waived whatever
objections he had on the matter; consequently, the trial court correctly took into account said evidence against
accused-appellant in reaching a decision.

Furthermore, as this Court has held, where an accused has failed to question the validity of his arrest and
subsequent search, as well as the admission of the evidence obtained thereunder, neither raising the issue nor
assigning the same as an error before this Court, he is deemed to have waived any possible challenge thereto. 16

Third, accused-appellant's admission during the press conference called by Mayor Marquez that he killed the victims
because the latter made him eat pork is likewise competent evidence that lends support to his conviction. Although
the clippings of the news articles reporting Mantung's confession are indeed hearsay evidence as the writers of the
same were not presented to affirm the veracity of the reports, the prosecution nevertheless presented Ricardo Diago,
an employee of Cebuana Lhuiller who was at the press conference, as rebuttal witness to prove that accused-
appellant indeed claimed responsibility for the killings. Since Diago's testimony was based on his own personal
knowledge about the proceedings during the press conference, his affirmation of Mantung's incriminating statements
is admissible as evidence against the latter. Worth reiterating is the rule that the declaration of an accused expressly
acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to
testify as a witness who heard the confession, is competent to testify as to the substance of what he heard. 17

During the trial, the defense objected to the admission of Mantung's extrajudicial statements as evidence, claiming
that the confession was made without the assistance of counsel. It should be noted that in People vs. Andan, this 18

Court held:

The Constitutional procedures on custodial investigation do not apply to a spontaneous statement,

not elicited through questioning by the authorities, but give in an ordinary manner whereby
appellant orally admitted having committed the crime. What the Constitution bars is the compulsory
disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to
preclude the slightest use of coercion by the state as would lead the accused to admit something
false, not to prevent him from freely and voluntarily telling the truth. Hence, we hold that appellant's
confession to the mayor was correctly admitted by the trial court.

Never was it raised during the trial that Mantung's admission during the press conference·was coerced or made
under duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor
Marquez' question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even
proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate
that Mantung felt compelled to own up to the crime. Besides, he could have chosen to remain silent or to do deny
altogether any participation in the robbery and killings but he did not; thus, accused-appellant sealed his own fate. As
held in People vs. Montiero, a confession constitutes evidence of high order since it is supported by the strong
19

presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by
truth and his conscience.

Sec. 3 of Rule 133 of the Rules of Court prescribe that an extrajudicial confession made by an accused shall not be
sufficient ground for conviction, unless corroborated by evidence of corpus delicti. Corpus delicti has been defined as
the body or substance of the crime and, in its primary sense, refers to the fact that a crime has actually been
committed. As applied to a particular offense, it means the actual commission by someone of the particular crime
charged. In this case, as pointed out by the Solicitor General, the corpus delicti was convincingly established by the
20

prosection. First, it was proven that a robbery with homicide was committed at the Maywood Branch of the Cebuana
Lhuiller Pawnshop on August 10, 1996. Second, the concatenation of circumstantial evidence, coupled with the
extrajudicial confession of the accused established beyond reasonable doubt that Mantung committed the crime.

As regards the proper penalty to be imposed, we find that the trial court erroneously considered the generic
aggravating circumstances of evident premeditation and treachery to qualify the offense. It is elementary that to
properly appreciate evident premeditation and treachery, there must be proof of the elements of such aggravating
circumstances and such proof must be as clear as the evidence of the crime itself. 21

In the case at bar, proof is lacking that accused-appellant knowingly hatched a plan to commit the robbery and
killings. Although the investigating officer testified for the prosecution about the information given by Mantung's
landlady that the accused moved out of his rented room the day before the killings, such evidence is hearsay as the
prosecution did not present the landlady during trial.·Besides, Mantung's departure from his usual place of residence
a day prior to the commission of the crime, by itself, is not sufficient to constitute evident premeditation on his part.
Well settled is the rule that where there is no proof of the time when the intent to commit the crime was engendered in
the mind of the accused, the motive and all those·facts and antecedents which when combined would show that the
crime was knowingly premeditated, evident premeditation cannot be appreciated. 22

As for the circumstance of treachery, no evidence was likewise presented to prove the manner by which accused-
appellant committed the killings. This Court has ruled that when no particulars are shown as to the manner in which
the aggression was made or how the act which resulted in the death of the victims began and developed, it can in no
way be established from mere suppositions that the accused perpetrated the killings with treachery. 23

WHEREFORE, the judgment of the trial court finding accused Guiamad Mantung guilty beyond reasonable doubt for
the crime of robbery with homicide is hereby AFFIRMED with the MODIFICATION that the penalty is reduced from
death to reclusion perpetua and the award of moral and exemplary damages is stricken off as there is no legal basis
for imposing the same.

Costs against the appellant. 1âwphi 1.nêt

SO ORDERED.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

THIRD DIVISION

[G.R. No. 128966. August 18, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE
VERA y GARCIA, RODERICK GARCIA y GALAMGAM,
KENNETH FLORENDO and ELMER CASTRO, accused, EDWIN DE
VERA y GARCIA, appellant.

DECISION
PANGANIBAN, J.:

When is a lookout deemed an accomplice and when a conspirator? What is the distinction
between the two?

Statement of the Case

These are the main questions passed upon by the Court in resolving the present appeal,
which assails the March 12, 1997 Decision[1] of the Regional Trial Court of Quezon City (Branch
57) in Criminal Case No. Q-92-31323, finding Appellant Edwin De Vera and Accused Roderick
Garcia guilty beyond reasonable doubt of murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged
with murder Appellant Edwin De Vera, together with Roderick Garcia and two other persons
who were subsequently identified during the trial as Kenneth Florendo and Elmer Castro. The
crime was allegedly committed as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said
accused, conspiring [and] confederating [with] and helping xxx two (2) other persons,
did then and there wilfully, unlawfully and feloniously with intent to kill, with evident
premeditation, treachery and use of superior strength, attack, assault and employ
personal violence upon the person of one FREDERICK CAPULONG y DIZON, by
then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas
bearing SN-29069 with five (5) pieces of caliber 22 ammo inside, hitting him between
his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting
upon him serious and mortal wounds which were the direct and immediate cause of
his untimely death, to the damage and prejudice of the heirs of the said Frederick
Capulong y Dizon.[2]

On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the
Information to include the use of a .32 caliber firearm in the killing of Frederick Capulong. The
trial court granted the Motion, and the Amended Information now reads as follows:

That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said
accused, conspiring [and] confederating [with] and helping xxx two (2) other persons,
did then and there wilfully, unlawfully and feloniously with intent to kill, with evident
premeditation, treachery and use of superior strength, attack, assault and employ
personal violence upon the person of one FREDERICK CAPULONG y DIZON, by
then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas
bearing SN-29069 with five (5) pieces of caliber 22 ammo inside and a .32 cal.
firearm of still undetermined make, hitting him between his eyes and striking him
with the use of a baseball bat in the mouth, thereby inflicting upon him serious and
mortal wounds which were the direct and immediate cause of his untimely death, to
the damage and prejudice of the heirs of the said Frederick Capulong y Dizon. [3]

On their arraignment, Appellant Edwin De Vera[4] and Roderick Garcia[5] pleaded not guilty. The
other two accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial
court rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA

y GARCIA and RODERICK GARCIA y GALAMGAM guilty beyond reasonable
doubt of the crime of MURDERand they are hereby accordingly sentenced to
suffer reclusion perpetua, including all its accessory penalties; to indemnify the heirs
of Frederick Capulong y Dizon, as follows:

a) P50,000.00, as death indemnity;

b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until full
payment; and,
f) Costs of suit.[6]
Only Edwin De Vera filed a Notice of Appeal.[7]

The Facts

Version of the Prosecution

In its Brief,[8] the Office of the Solicitor General presented the following narration of facts: [9]

As earlier stated, the prosecution presented an eyewitness in the person of Bernardino

Cacao, a resident of Denver Loop Street, Filinvest II, Quezon City before he moved to
No. 58 Elisa Street, Caloocan City. He was residing at Filinvest II, together with his
wife and children, at the time of the incident on June 28, 1992 in the house owned by
David Lim. He was then employed at a Kodak branch in Caloocan City, while his
wife served as secretary of the homeowners association.

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the
witness saw a car passing by, driven by victim Frederick Capulong together with four
(4) other passengers. He knew the victim by name who was a resident of the
subdivision. He recognized and identified two of the passengers as Kenneth Florendo
and Roderick Garcia, both familiar in the subdivision.

Cacao did not at first notice anything unusual inside the car while it passed by him,
but then he heard unintelligible voices coming from the car as it was cruising around
Denver Loop Street, a circular road whose entrance and exit were through the same
point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao walked to the
opposite side of the road from where he saw the car already parked. Moments later, he
saw the victim dragged out of the car by Florendo and brought to a grassy place.
Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo
aimed and fired the gun at the victim, hitting him between the eyes. After the
shooting, Florendo and his companions fled in different directions.

When he submitted a sworn statement to the investigating prosecutor, Cacao attached

a sketch of the crime scene prepared by police officers, indicating therein his relative
position at the time of the incident. While testifying in court, Cacao identified Garcia
and pointed to appellant as among the companions of Florendo.

Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation
Division, Station 5, Central Police District, Quezon City received a report about the
shooting incident from a security guard of the subdivision. The officer immediately
dispatched a team to Filinvest II, composed of PO2 Armando Garcia, PO3 Armando
Junio, and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5,
September 13, 1993). A security guard guided the team to the corner of Denver and
Doa Justina Streets, site of the shooting, where they discovered blood stains
and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed
to the East Avenue Medical Center by other security guards. The policemen then
found a color red sports car with plate no. NBZ 869, with engine still running and its
doors opened. They recovered inside the car several class cards and a license
belonging to one Ric Capulong, who was later identified as Frederick Capulong.

The policemen went around the subdivision to look for possible suspects. They came
upon a person wearing muddied maong pants and white t-shirt standing and walking
around near the clubhouse of the subdivision. When asked his name, the person
identified himself as Edwin de Vera, herein appellant. Explaining the mud stains on
his pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his
conduct, the policemen brought appellant to Station 5 and turned him over to the desk
officer for investigation.

Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989,
was assigned to investigate the shooting of Frederick Capulong. He was assisted by
SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio Villacorte, SPO3
Rolando Gacute, SPO3 Danilo Castro and other police officers.

Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue
Medical Center where he saw the victim lying inside the intensive care unit receiving
medical treatment. The victim was unconscious. After conferring with the victims
parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the desk
officer referred appellant to him for questioning. He was told that appellant was
picked up near the crime scene acting suspiciously. When appellant was asked about
his participation in the shooting, he was reluctant at first to talk, but later relented after
SPO3 Guspid told him that his conscience would bother him less if he would tell the
truth.

Without any hesitation, appellant admitted being [with the] group which perpetrated
the crime, and implicated Roderick Garcia. He was then persuaded to accompany a
group of policemen to the residence of Garcia, which turned out to be at Doa Justina
Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid informed him
that he was implicated by appellant [in] the crime. He was then invited to the station
to shed light [on] the incident. Garcia consented.

At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the
interview, Garcia revealed the place where he hid a .22 caliber gun, black t-shirt and
black cap. According to Garcia, Florendo asked them to wear black t-shirts. With the
revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together with
the suspects, went back to the subdivision and proceeded to a grassy portion near the
boundary of Filinvest II and San Mateo, Rizal. The place was near a creek and about
50 meters away from the residence of Garcia (TSN, pp. 9-14, September 30, 1993).
Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap
(TSN, pp. 12-13, August 24, 1993). While there, SPO3 Guspid and SPO2 Rivera
prepared a sketch of the crime scene to reflect the explanations and answers given by
appellant and Garcia in response to their questions. As identifying marks, SPO3
Gacute placed his initials OG (acronym for his first name and family name) between
the handle and cylinder of the gun, and on the neck of the t-shirt, as well as in the
inner lining of the black cap.

From the crime site, the policemen and the suspects returned to Station 5 where SPO3
Guspid asked them if they were willing to give their written statements, to which they
assented. Consequently, they were brought to the Integrated Bar of the Philippines,
Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They were then
introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the
IBP. Also, present at that time were appellants relatives, including his mother and
sisters, and other lawyers of the IBP.

SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano,
a competent lawyer. They replied in the affirmative. Thereafter, the two conferred
with Atty. Sansano.

Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the
suspects [i]n his office, he requested the policemen, as a matter of policy, to step
outside the building in order to assure that no pressure would be exerted on the
suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left,
Atty. Sansano interviewed the suspects for about twenty minutes, informing them of
their rights under the constitution and inquiring from them if they indeed wanted to
give voluntary statements. To the query, the suspects answered positively. They also
affirmed their earlier declaration that they were willing to be assisted by the IBP (ibid,
pp. 8-9). He further advised them of their right during the investigation to answer or
not to answer the questions which they thought would incriminate them, but they
retorted that they fully understood their right.

Satisfied that they were not coerced or threatened to give their statements, Atty.
Sansano requested the suspects to show their upper bodies to enable him to determine
any telltale signs of torture or bodily harm. Finding no such signs, he then summoned
the policemen to re-enter the building. The investigators readied two typewriters and
each suspect was assigned to an investigator. He served as the lawyer of the suspects,
cautioning them against answering questions that they did not understand, and to seek
xxx a clarification, if needed.

According to Atty. Sansano, the interrogation took place in his office, a single
separate room from where his five staff members were visible. He sat between the two
tables used by the investigators for typing the questions and answers, involving
himself from beginning to end of the investigation until the signing of the statements.
He never left the office to attend to anything else, consistent with [the] standing policy
of the IBP to properly safeguard the rights of suspects during investigation.

He recalled that the investigators first typed the headings of the statements, then
informed the suspects before starting the investigation about their rights under the
constitution, specifically, the right of the suspects to have a lawyer of their own
choice; if not, the police would provide them with one who would assist them; that
they could answer or refuse to answer the questions. The investigators also asked him
if he was willing to serve as counsel of the suspects. They also asked the suspects if
they were willing to accept him as their counsel. They agreed expressly by saying:
Oho.

SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They
conducted the question and answer investigation in Pilipino. The statement of
appellant was marked as Exhibit O and that of Garcia was marked as Exhibit N. The
statements were signed by the suspects and Atty. Sansano.

For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the
statements of the suspects (TSN, p. 4, June 29, 1993). He took the statement of
appellant in the presence of Atty. Sansano. Before proceeding, he reminded appellant
of the constitutional warnings, consisting of four (4) questions under the
heading Paunawa, to which the latter gave positive answers. The statement was
signed by appellant and Atty. Sansano. After taking down the statement, he turned
over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine
National Police Crime Laboratory for paraffin testing. The result: both hands of
Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the test for gunpowder
nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave negative result
[in] the test for gunpowder nitrates.

After coming from the crime laboratory, SPO3 Guspid contacted the mother of the
victim to get her own statement. Next, he obtained a death certificate and prepared
a referral to the Quezon City Prosecution Office which was signed by Senior
Inspector Ernesto Collado, Chief of the Station Investigation Division. During the
inquest, the prosecutor asked the suspects some clarificatory questions.

Surveillance and follow-up operations were conducted against Florendo and his other
companion, Elmer Castro. However, the two were never arrested and brought to trial.

Version of the Defense

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who
had shot the victim. He avers that he merely accompanied to Filinvest the other accused and
Florendo, who was his friend, upon the latters request. A few hours after the shooting incident,
appellant was picked up by the police, who subsequently tortured and coerced him into signing
his Statement regarding the incident. The trial court summarized appellants evidence in this
wise:[10]

Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were
already close friends for about a year, sometimes sleeping in the latters house at No
106 Kamias Road, Quezon City. His own residence at the time was at No. 7 Bignay
Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and
Kenneths friend.

Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and
went home at 7:00 am of June 8 . Later at around 10:30 am, Kenneth passed by
th

Edwins house to invite him back to [the formers] house that morning and to bring
Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then with
him, would be going somewhere first. Deo, or Roderick Garcia, was another friend of
Kenneths.

Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth,
his girlfriend, and Deo were already taking lunch, and invited the two to lunch. After
lunch, Kenneth asked Edwin to go with him to Filinvest without telling why. It was
Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was not
aware if Kenneth had also asked the others to go with him to Filinvest, but the four of
them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n Kenneths car.
Edwin sat at the back seat. The time was past 12:00 noon.

Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the
four of them alighted in front of the house. Edwin did not know whose house it was.
Kenneth and Elmer told Edwin and Deo to wait near the car because they were going
to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth and
Elmer went to see[,] by name, never having met him personally before then. From his
conversation with Deo, Edwin found out that the house was where Deo stayed.

Then, Edwin heard the voices of Kenneth and his friend and they appeared to be
arguing (x x x x parang nagtatalo sila). The voices came from some twenty-two (22)
meters away. Not before long, Edwin also heard a gunshot which came from where
Kenneth and Elmer had gone to. He was shocked because he was not used to hearing
gunfire. Frightened, he panicked and ran away from the place. His singular thought
while running was to get out of Filinvest. Deo also ran away.

Edwin denied that either he or Deo carried any firearm on that occasion.

Edwin was arrested by the police at past 2:00 pm when he was already outside of
Filinvest subdivision in front of Batasan. He was brought to Station 5 where four (4)
persons in civilian attire tortured him by forcing him to lie down on a bench, tying his
feet together and binding his hands from his back with handcuffs, and then covering
his face with a piece of dirty cloth into which water was poured little by little into his
face and mouth, while one of them sat on his thighs. This maltreatment lasted for
about 20 or 25 minutes, because they wanted him to admit something and to name my
companions but he refused to admit or to name anyone. They next took him outside to
a mango tree where they repeated his ordeal for 30 minutes. At one point during the
torture, a policeman untied his feet and hands and poked a gun to his temple, telling
him to run as it was his chance to escape, but he did not escape because he could see
that they were merely frightening him.

None of the policemen told him that he could xxx get a lawyer[;] instead, one of them,
whose name he [did] not know, told him that I should listen only to them and not to
anyone else. He claimed that he saw one [of] his tormentors in court, and he identified
him as police officer Rivera. Guspid did not participate in his torture, because he
merely took down his statement. His tormentors were not drunk or under the influence
of drugs, but Guspid seemed to be under the influence of drugs when he took his
statement because of his troubled appearance.

Edwin was not advised to inform or call any of his relatives. Before his torture, his
request to contact his relatives or lawyer was turned down. His intimidation continued
(x x x x puro pananakot and ginawa nila sa akin). After his torture at the mango tree,
he was returned inside and thrown into a cell, where he remained until the following
day (June 9 ). During the night, an inmate named Cesar boxed him once in the upper
th

body upon instruction of a policeman. He was not given any dinner.

At around noontime of the next day (June 9 ), Edwin was taken out of the cell and
th

brought to the IBP office by police officers Guspid and Selvido. Also with them were
Deo Garcia and two other police officers. At the IBP office, the officers talked with
one of the lawyers there, whom Edwin came to know to be Atty. Sansano only after
the lawyer was introduced (present) to him and Deo. That was the first he met and
saw Atty. Sansano.

Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk
or not. Edwin could not make any comment because wala po ako sa sarili ko. Then,
Atty. Sansano warned Edwin substantially that: Alam nyo ba na ang salaysay na ito ay
maaring hindi ninyo sumpaan, referring to the statement taken from Edwin by officers
Guspid at around past 8 pm until 9 pm on the day before (June 8, 1992) at the police
station. He was not assisted by counsel, and had no relatives present. Guspid appeared
to be like drunk or tipsy, when he took down Edwins statement that night.

At the IBP office, Edwins and Deos statement were taken separately by Guspid and
Selvido, respectively. At the time, Edwin and Deo were about six (6) meters from
each other, but he could hear what was being asked of Deo. Guspid asked the
questions and typed both the questions and his answers, which were given in Tagalog.
All the while, Atty. Sansano was inside his office, which was about seven (7) meters
away from where he and Guspid were situated. The office of Atty. Sansano was
separated by a divider, so that he could not see what Atty. Sansano was doing at the
time. After the questioning, he signed a paper which he was not able to read. He did
not see Atty. Sansano sign the paper.

xxxxxxxxx

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang

salaysay, which he swore to before Prosecutor Tobia of Quezon City, for the purpose
of recanting his statements given at the precinct in the evening of June 8, 1992 and at
the IBP office on June 9, 1992 on the ground that they were given under coercion,
intimidation, and in violation of his constitutional rights.

Ruling of the Trial Court

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was
indeed Kenneth Florendo who had actually shot the victim, Roderick Capulong. It convicted
appellant as a principal, however, because the scientific and forensic findings on the criminal
incident directly and substantially confirmed the existence of conspiracy among the four
[accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick Garcia.[11]

The Issues

Appellant submits for the consideration of this Court the following alleged errors:
I

THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-

WITNESS BERNARDO CACAO HAD TESTIFIED TO NO CRIMINAL ACT OF
APPELLANT;
II

THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE

WAS A CONSPIRACY TO KILL THE VICTIM AND THAT APPELLANT WAS A
CO- CONSPIRATOR;
III

THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED

STATEMENT OF APPELLANT; AND IN NOT DECLARING THE SAME AS AN
INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER
UNDER WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT
WHICH VIOLATED THE LATTERS CONSTITUTIONAL RIGHTS;
IV

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE
PROSECUTION HAS NOT PROVED THE APPELLANTS GUILT BEYOND
REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.[12]

In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution
evidence, (2) the admissibility of appellants extrajudicial statement, and (3) the nature of his
liability.

The Courts Ruling

 The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not
as a principal.

First and Third Issues:

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall be
discussed jointly.

Eyewitness Account

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De
Vera, the trial court relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its
conclusions on the following facts: appellant was seen with the other accused inside the victims
car; the victim was clearly struck with a blunt object while inside the car, and it was unlikely for
Florendo to have done it all by himself; moreover, it was impossible for De Vera and Garcia to
have been unaware of Florendos dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond
reasonable doubt.[13] In the present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred.
Thereafter, he saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot
the victim in the head moments later.
Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that
he was inside the car, no other act was imputed to him. Mere presence does not amount to
conspiracy.[14]Indeed, the trial court based its finding of conspiracy on mere presumptions, and not on solid facts
indubitably indicating a common design to commit murder. Such suppositions do not constitute proof beyond
reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere
surmises or conjectures. Clearly, Cacaos testimony does not establish appellants culpability.

Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras
extrajudicial statement, which established three points.
First, appellant knew of Kenneth Florendos malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang
maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na
lamang at napilitan akong sumama.[15]
Second, appellants companions were armed that day, a fact which revealed the unmistakable
plan of the group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo
at Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril
niya kay Deo at itong si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing
himself at a certain distance from Kenneth and the victim in order to act as a lookout. This is
clear from the following portion of his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June
08, 1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw
po kaming lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at
may sinabi sa kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan
 siya ni Frederick Sumulong [sic] ay uunahan na raw po niya ito. Umalis po itong si Kenneth na
kasama ang kanyang nobya at itong si Deo, para ihatid ang kanyang [sic] sa hospital at bago sila
umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si Elmer Castro at magbhihai
[magbihis] na rin daw ako at pagdating nila ay xxx lalakad na raw po kami. Mga ilang oras pa ay
sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na
itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa
kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos noon
ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo
malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa
lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni
Deo. P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan
nang medyo malayo-layo sa lugar upang tignan kung mayroong darating na tao. Samantalang si
Kenneth ay lumapit kina Deo at Frederick at kasunod noon ay nagkaroon ng sagutan itong si
Kenneth at Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si
Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na
kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa
lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at kasunod
po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami,
pero ako po ay nahuli ng mga security guard ng Subdivision at itong si Deo ay nahuli naman sa
kanilang bahay. Itong sina Kenneth at Elmer ay hindi pa nahuhuli.[16]

Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo intended to
kill the victim and that the three co-accused were carrying weapons, he had acted as a lookout to
watch for passersby. He was not an innocent spectator; he was at the locus criminis in order to
aid and abet the commission of the crime. These facts, however, did not make him a conspirator;
at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when two or more persons come
to an agreement concerning the commission of a felony and decide to commit it.[17] To prove
conspiracy, the prosecution must establish the following three requisites: (1) that two or more
persons came to an agreement, (2) that the agreement concerned the commission of a crime, and
(3) that the execution of the felony [was] decided upon.[18] Except in the case of the mastermind
of a crime, it must also be shown that the accused performed an overt act in furtherance of the
conspiracy.[19] The Court has held that in most instances, direct proof of a previous agreement
need not be established, for conspiracy may be deduced from the acts of the accused pointing to
a joint purpose, concerted action and community of interest.[20]
On the other hand, the Revised Penal Code defines accomplices as those persons who, not
being included in Article 17,[21] cooperate in the execution of the offense by previous or
simultaneous acts.[22] The Court has held that an accomplice is one who knows the criminal
design of the principal and cooperates knowingly or intentionally therewith by an act which,
even if not rendered, the crime would be committed just the same.[23] To hold a person liable as
an accomplice, two elements must be present: (1) the community of criminal design; that is,
knowing the criminal design of the principal by direct participation, he concurs with the latter in
his purpose; and (2) the performance of previous or simultaneous acts that are not indispensable
to the commission of the crime.[24]
The distinction between the two concepts needs to be underscored, in view of its effect on
appellants penalty. Once conspiracy is proven, the liability is collective and not individual. The
act of one of them is deemed the act of all.[25] In the case of an accomplice, the liability is one
degree lower than that of a principal.
Conspirators and accomplices have one thing in common: they know and agree with the
criminal design. Conspirators, however, know the criminal intention because they themselves
have decided upon such course of action. Accomplices come to know about it after the principals
have reached the decision, and only then do they agree to cooperate in its execution.
Conspirators decide that a crime should be committed; accomplices merely concur in it.
Accomplices do not decide whether the crime should be committed; they merely assent to the
plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices
are merely their instruments who perform acts not essential to the perpetration of the offense.
Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two others, as
a principal, although he had acted merely as a lookout. The Court held that their concerted action
in going armed and together to their victims house, and there, while one stayed as a lookout, the
other two entered and shot the mayor and his wife, leaving again together afterwards, admits no
other rational explanation but conspiracy. It may be noted further that Cinco executed a Sworn
Statement that the three of them, together with some others, had planned to kill the victim on the
promise of a P5,000 reward.
In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal for
conspiring with two others. The Court ruled that the conspiracy was shown by their conduct
before, during and after the commission of the crime. The Court also noted that, upon their
arrest, they disclosed that they had intended to rob the victims store and that they did so in
accordance with their plan. In that case, it was clear that all three of them, including the lookout,
were the authors of the crime.
In People v. Loreno,[28] the Supreme Court convicted all the accused as principals because
they had acted in band. In acting as a lookout, Jimmy Marantal was armed at the time like the
other conspirators, and he gave his companions effective means and encouragement to commit
the crime of robbery and rape.
Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel knew of the
criminal design to commit a robbery, and that he cooperated with the robbers by driving the
vehicle to and from the crime scene. In convicting him as an accomplice and not as a conspirator,
the Court observed that he was merely approached by one of the robbers who was tasked to look
for a getaway vehicle. He was not with the robbers when they resolved to commit a robbery.
When his services were requested, the decision to commit the crime had already been made.
In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some
appellants who knowingly aid[ed] the actual killers by casting stones at the victim, and
distracting his attention. The Court ruled that they were accomplices and not co-conspirators, [i]n
the absence of clear proof that the killing was in fact envisaged by them.
In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to Suarez
who intended to perpetrate the crime with the help of the said group. In ruling that he was merely
an accomplice, the Court noted that there was no evidence showing that he took part in the
planning or execution of the crime, or any proof indicating that he profited from the fruits of the
crime, or of acts indicative of confederacy on his part.
In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in going
with them, knowing their criminal intention, and in staying outside of the house with them while
the others went inside the store to rob and kill, [he] effectively supplied the criminals with
material and moral aid, making him guilty as an accompliance. The Court noted that there was
no evidence that he had conspired with the malefactors, nor that he actually participated in the
commission of the crime.
In People v. Doble,[33] the Court held that Cresencio Doble did not become a conspirator
when he looked for a banca that was eventually used by the robbers. Ruled the Court: Neither
would it appear that Joe Intsik wanted to draft Crescencio into his band of malefactors that would
commit the robbery more than just asking his help to look for a banca. Joe Intsik had enough
men, all with arms and weapons to perpetrate the crime, the commission of which needed
planning and men to execute the plan with full mutual confidence of each other, which [was] not
shown with respect to appellants by the way they were asked to look and provide for a banca just
a few hours before the actual robbery.
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill
Capulong at the time, and he cooperated with the latter. But he himself did not participate in the
decision to kill Capulong; that decision was made by Florendo and the others. He joined them
that afternoon after the decision to kill had already been agreed upon; he was there
because nagkahiyaan na. This is clear from his statement, which we quote again for the sake of
clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang
maging kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na
lamang at napilitan akong sumama.[34]
Significantly, the plan to kill could have been accomplished without him. It should be noted
further that he alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had
a baseball bat.
 In any event, the prosecution evidence has not established that appellant was part of the
conspiracy to kill the victim. His participation, as culled from his own Statement, was made,
after the decision to kill was already a fait accompli. Thus, in several cases, the Court has held:

[L]ack of complete evidence of conspiracy, that creates the doubt whether they had
acted as principals or accomplices in the perpetration of the offense, impels this Court
to resolve in their favor the question, by holding x x x that they were guilty of the
milder form of responsibility, i.e., guilty as mere accomplices.[35]

Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12, Article

III of the Constitution, provides:

(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

xxxxxxxxx

(3) Any confession or admission obtained in violation of this or section 17 hereof

shall be inadmissible in evidence against him.

If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if
it was given freely -- without coercion, intimidation, inducement, or false promises; and
credibility, i.e., if it was consistent with the normal experience of mankind. [36]
Appellant claims that his extrajudicial statement was inadmissible, because it was not made
in the presence of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid
Committee purportedly assisted him and his co-accused in the execution of their extrajudicial
Statements, appellant asserts that the lawyer was in his office, not with them, at the time.
Appellant adds that he was tortured.
Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any
time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as
custodial investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the
accused or suspects are properly [protected] during the course of the entire interrogation.[37]
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera,
and Garcia and interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that no
pressure could be exerted on the two boys by the presence of the police officers during my
personal interview. Before we allow any police officers to take the statements of people brought
before us[,] we see to it [that] we interview the persons personally out of hearing and sight of any
police officer.
 Q: After the police officers left the room, completely left the room[,] you were able to interview the
two accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own
statements to the police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxxxxxxxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for a [sic]
in any court of the Phil., I was satisfied that nobody coerced them, that they were never
threatened by anybody much less by the police officers to give these statements. Casually I asked
the two boys to raise their upper clothes.
xxxxxxxxx
Q: What was your purpose in requiring these persons to show you or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on
the[m] prior to their [being brought] to the office. In spite of their [personal] assurances xxx,
verbal assurance that they were never hurt.[38]
The right to counsel is enshrined in the Constitution in order to address, among others, the
use of duress and undue influence in the execution of extrajudicial confessions.[39] In the present
case, the Court is satisfied that Atty. Sansano sufficiently fulfilled the objective of this
constitutional mandate. Moreover, appellants allegations of torture must be disregarded for being
unsubstantiated. To hold otherwise is to facilitate the retraction of solemnly made statements at
the mere allegation of torture, without any proof whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes
evidence of a high order, because of the strong presumption that no person of normal mind
would deliberately and knowingly confess to a crime unless prompted by truth and
conscience.[40] The defense has the burden of proving that it was extracted by means of force,
duress or promise of reward.[41] Appellant failed to overcome the overwhelming prosecution
evidence to the contrary.
Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made
by an accused shall not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti. In the present case, the prosecution presented other evidence to prove the two
elements of corpus delicti: (a) a certain result has been proven for example, a man has died; and
(b) some person is criminally responsible.[42] It is indubitable that a crime has been committed,
and that the other pieces of prosecution evidence clearly show that appellant had conspired with
the other accused to commit the crime. He himself does not deny that he was at the crime scene.
In fact, he was seen by the prosecution eyewitness in the company of the gunman. Furthermore,
Atty. Sansano and the police officers testified to the voluntariness of his confession. It must be
stressed that the aforementioned rule merely requires that there should be some other
evidence tending to show the commission of the crime apart from the confession. [43]

Criminal and Civil Liability

In ruling that the crime committed was murder, the trial court found that the killing was
attended by treachery, evident premeditation and abuse of superior strength. One of these was
enough to qualify the crime as murder; the two others constituted generic aggravating
circumstances. The lower court explained that the evidence established evident premeditation,
for Florendos group acted with deliberate forethought and tenacious persistence in the
accomplishment of the criminal design. Treachery was also proven, because the attack was
planned and performed in such a way as to guarantee the execution of the criminal design
without risk to the group. There was also abuse of superior strength, because the attackers took
advantage of their superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances,
because treachery absorbs abuse of superior strength.[44] Hence, there is only one generic
aggravating circumstance, not two. Notwithstanding the presence of a generic aggravating
circumstance, we cannot impose the death penalty, because the crime was committed before the
effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that
of a principal, which in murder cases is reclusion temporal in its maximum period to death. He is
also entitled to the benefits of the Indeterminate Sentence Law.
We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded
without need of proof other than the commission of the crime. The award of P211,670 as
compensatory damages was duly supported by evidence. Based on the evidence presented, moral
damages is also warranted, but only in the amount of P50,000, not P500,000 as fixed by the trial
court. Furthermore, we affirm the payment of interest.[45] However, the grant of P600,000 for loss
of earning capacity lacks factual basis. Such indemnification partakes of the nature of actual
damages, which must be duly proven.[46] In this case, the trial court merely presumed the amount
of Capulongs earnings. Since the prosecution did not present evidence of the current income of
the deceased, the indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera
is CONVICTED as an accomplice, not as a principal, in the crime of murder. He is sentenced to
an indeterminate prison term of 8 years and 1 day of prision mayor as minimum, to 14 years 8
months and 1 day of reclusion temporal as maximum. We AFFIRM the awards of: (a) P50,000
indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six percent per
annum on these two amounts. The award of moral damages is however REDUCED to P50,000
and the award for the loss of earning capacity is DELETED. No pronouncement as to costs.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see separate opinion.

SEPARATE OPINION

VITUG, J.:

I share the ponencia of my colleagues in its affirmance of the conviction of appellants

except, with all due respect, insofar as it has concluded that appellant De Vera is guilty merely as
an accomplice.
There is conspiracy under Article 8 of the Revised penal Code when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it.
Conspiracy of, course, by itself is legally inconsequential unless the criminal plot is, in fact,
carried out. Once the offense is perpetrated, the responsibility of the conspirators is collective,
not individual, that render, all of them equally liable regardless of the extent of their respective
participations, the act of one being deemed to be the act of the other or the others, in the
commission of the felony. An accomplice, under Article 18 of the same Code, is one who, not
being a principal who (a) takes a direct part in the execution of the act, (b) directly forces or
induces others to commit, (c) cooperates in the commission of the offense by another act without
which the offense would not have been accomplished (per Article 17 of the Code), collaborates
in the execution of the offense by previous or simultaneous acts.
In the case at bar, De Vera, knowing that Florendo intended to kill the victim and that the
three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He
was not an innocent spectator; he was at the locus criminis in order to aid and abet the
commission of the crime (ponencia).
I cannot bring myself to accept any material variance between the terms to decide, on the
one hand, and to concur or to assent, on the other hand, in defining, i.e., whether as a conspirator
or as an accomplice, the specific criminal liability of the criminal offender. Where there is
concurrence or assent by one to a plan, even when previously hatched by another or others, to
commit a felony which concurrence or assent is made prior to the actual perpetration of the
offense, and he then actually participates in its commission, regardless of the extent of such
participation, his liability should be deemed, in my view, that of a conspirator rather than that of
an accomplice. I would equate the liability of an accomplice to one who, knowing of the criminal
design, but neither concurring nor assenting to it, cooperates in the execution of the crime short
of taking a direct part in, and short of taking an indispensable act for, the commission of the
offense. In the last two instances (taking a direct part in, or taking an indispensable act for, the
commission of the felony), his participation would be that of a principal under Article 17 of the
Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be lookout during
the commission of the crime which, in fact, so took place as planned, he rendered himself liable
no less than that incurred by his co-accused.

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

METROPOLITAN BANK & TRUST COMPANY, G.R. No. 187917

Petitioner,
Present:

CARPIO, J.,

Chairperson,

NACHURA,
- versus -
PERALTA,

ABAD, and

MENDOZA, JJ.

SPOUSES EDMUNDO MIRANDA and JULIE

MIRANDA, Promulgated:

Respondents.
January 19, 2011

x------------------------------------------------------------------------------------x
 DECISION

NACHURA, J.:

On appeal is the June 30, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R.
CV No. 87775, affirming the June 16, 2006 Decision[2] of the Regional Trial Court
(RTC) of Santiago City, Branch 35, as well as its subsequent Resolution dated May
7, 2009,[3] denying petitioners motion for reconsideration.

Respondents, spouses Edmundo Miranda and Julie Miranda, applied for and
obtained a credit accommodation from petitioner Metropolitan Bank & Trust
Company (Metrobank). On August 27, 1996, respondents obtained
a P4,000,000.00 loan from Metrobank and executed a real estate mortgage[4] over
a parcel of land in Poblacion, Santiago, Isabela, covered by Transfer Certificate of
Title (TCT) No. 202288. Upon respondents request, Metrobank increased the loan
from P4,000,000.00 to P5,000,000.00. The real estate mortgage executed on
August 27, 1996 was thus amended[5] to increase the principal amount of loan
secured by the mortgage to P5,000,000.00.

Subsequently, respondents obtained additional loans from Metrobank -

P1,000,000.00 on December 3, 1996, and P1,000,000.00 on May 8, 1997. The
additional loans were secured by mortgage[6] over lands situated in Dubinan and
Mabini, Santiago, Isabela, covered by TCT Nos. T-202288, T-180503, T-260279,
and T-272664.

Respondents encountered difficulties in paying their loans. They requested for a

longer period to settle their account and further requested for the restructuring
of their loans, which requests Metrobank granted. Respondents then signed
Promissory Note (PN) No. 599773[7] for P6,400,000.00, and PN No.
599772[8] for P950,000.00, both payable on February 24, 2002, with interest at
17.250% per annum. They also amended the deeds of real estate mortgage they
executed in favor of Metrobank to increase the amount of loans secured by
mortgage to P6,350,000.00. The amendment was inscribed on TCT Nos. T-
202288,[9] T-260279,[10] and T-180503.[11]

On August 25, 2000, Metrobank sent respondents a demand letter[12] to settle

their overdue account of P8,512,380.15, inclusive of interest and penalties;
otherwise, the bank would initiate the necessary legal proceedings x x x, without
further notice. Respondents, however, failed to settle their
account. Consequently, Metrobank caused the extrajudicial foreclosure and
auction sale of the mortgaged properties on November 16, 2000. The Clerk of
Court and Ex-Officio Sheriff of Santiago City sold the mortgaged properties at
public auction for the sum of P9,284,452.00 to Metrobank, as the highest
bidder. A Certificate of Sale[13] was issued in favor of Metrobank on November 27,
2000, which was registered with the Registry of Deeds on November 29, 2000.

Claiming that the extrajudicial foreclosure was void, respondents filed a complaint
for Nullification of the Foreclosure Proceedings and Damages with Prayer for
Temporary Restraining Order/Injunction[14] with the RTC of Santiago City. They
alleged non-compliance with the provisions of Presidential Decree No.
1079[15] and Act No. 3135,[16] particularly the publication
requirement. Respondents further asserted that Metrobank required them to sign
blank promissory notes and real estate mortgage, and that they were not
furnished with copies of these documents. Later, they discovered that the terms
and conditions of the promissory notes and of the mortgage were entirely
different from what was represented to
them by the bank. The right to fix the interest rates, they added, was
exclusively given to the bank. Respondents, thus, prayed for the annulment of the
extrajudicial foreclosure proceedings.

Metrobank answered the complaint, denying its material allegations and asserting
the validity of the foreclosure proceedings. Specifically, it averred compliance
with the posting and publication requirements. Thus, it prayed for the dismissal of
the complaint.[17]

Meanwhile, on December 20, 2001, Metrobank caused the cancellation of the

TCTs in the name of respondents and the issuance of new ones in its name. On
December 21, 2001, the Ex-Officio Sheriff executed a Final Deed of Sale.[18]

On June 16, 2006, the RTC rendered a decision[19] annulling the extrajudicial
foreclosure proceedings. The RTC reviewed the records of the foreclosure
proceedings and found no proof of publication of the sheriffs notice of sale; there
was no affidavit of publication attached to the records. This fatal defect, it held,
invalidated the auction sale and the entire foreclosure proceedings. The RTC
further held that, when Metrobank foreclosed the mortgaged properties,
respondents loan account was still outstanding for there was an overpayment of
interests amounting to P1,529,922.00. Thus, the foreclosure proceedings were
without factual and legal basis. The RTC further noted that Metrobank
consolidated its title even before the issuance of the sheriffs Final Deed of
Sale. The trial court considered it an irregularity sufficient to invalidate the
consolidation.
The dispositive portion of the RTC decision reads:
 WHEREFORE, premises considered, judgment is hereby rendered in
favor of [respondents] and against [petitioner] Metrobank as follows:

1) DECLARING as null and void the Sheriffs Certificate of Sale,

dated November 27, 2000, Exhibit 11;

2) DECLARING as null and void the Sheriffs Final Deed of Sale,

dated December 21, 2000, Exhibit 12;

3) CANCELLING [Metrobanks] TCT Nos. T-319236 (Exhibit 13); T-

319235 over Lot 6-B-18 (Exhibit 14); T-T-319235 over Lot 4-F
(Exhibit 15); and T-319237 (Exhibit 16);

4) RESTORING [respondents] TCT Nos. T-260279 (Exhibit E); T-

202288 (Exhibit F); T-180503 (Exhibit G; and T- 272664
(Annex E); and

5) ORDERING x x x Metrobank to pay PHP50,000.00 as attorneys

fees, and the cost of suit.

SO ORDERED. [20]

Metrobank filed a motion for reconsideration, but the RTC denied it on July 31,
2006.

Metrobank then appealed to the CA, faulting the RTC for annulling the foreclosure
proceedings. It insisted that the bank complied with the publication
requirement.Metrobank also disagreed with the trial courts finding of
overpayment of interests amounting to P1,529,922.00, claiming that the
applicable interest rates on respondents loans were 17% and not 12% as
computed by the trial court. It further asserted that a final deed of sale is not
necessary for purposes of consolidating its ownership over the subject
properties. Finally, Metrobank assailed the award of attorneys fees for lack of
basis.
On June 30, 2008, the CA resolved Metrobanks appeal in this wise:

WHEREFORE, the appeal is DISMISSED. The assailed decision

dated June 16, 2006 of the RTC of Santiago City, Branch 35, in Civil Case
No. 35-3022 is AFFIRMED.

SO ORDERED.[21]

Metrobanks motion for reconsideration also suffered the same fate, as the CA
denied it on May 7, 2009.[22]

Before us, Metrobank insists on the validity of the foreclosure

proceedings. Essentially, it argues that foreclosure proceedings enjoy the
presumption of regularity, and the party alleging irregularity has the burden of
proving his claim. Metrobank asserts that, in this case, the presumption of
regularity was not disputed because respondents failed to prove that the notice
of sale was not published as required by law.

At the outset, it must be stated that only questions of law may be raised
before this Court in a Petition for Review under Rule 45 of the Revised Rules of
Civil Procedure. This Court is not a trier of facts, and it is not the function of this
Court to reexamine the evidence submitted by the parties.[23]

It has been our consistent ruling that the question of compliance or non-
compliance with notice and publication requirements of an extrajudicial
foreclosure sale is a factual issue, and the resolution thereof by the trial court is
generally binding on this Court. The matter of sufficiency of
posting and publication of a notice of foreclosure sale need not be resolved
by this Court, especially when the findings of the RTC were sustained by the CA.
Well-established is the rule that factual findings of the CA are conclusive on the
parties and carry even more weight when the said court affirms the factual
findings of the trial court.[24]

The unanimity of the CA and the trial court in their factual ascertainment
that there was non-compliance with the publication requirement bars us from
supplanting their findings and substituting them with our own. Metrobank has
not shown that they are entitled to an exception to this rule. It has not sufficiently
demonstrated any special circumstances to justify a factual review.
 Metrobank makes much ado of respondents failure to present proof of
non-compliance with the publication requirement. It insists that respondents
failed to discharge the requisite burden of proof.

Apparently, Metrobank lost sight of our ruling in Spouses Pulido v.

CA, Sempio v. CA,[26] and, recently, in Philippine Savings Bank v. Spouses
[25]

Dionisio Geronimo and Caridad Geronimo,[27] viz.:

While it may be true that the party alleging non-compliance with

the requisite publication has the burden of proof, still negative
allegations need not be proved even if essential to ones cause of action
or defense if they constitute a denial of the existence of a document
the custody of which belongs to the other party.

It would have been a simple matter for Metrobank to rebut the allegation
of non-compliance by producing the required proof of publication. Yet,
Metrobank opted not to rebut the allegation; it simply relied on the presumption
of regularity in the performance of official duty.

Unfortunately, Metrobanks reliance on the presumption of regularity must

fail because it did not present any proof of publication of the notice of sale. As
held by this Court in Spouses Pulido v. Court of Appeals:[28]

[P]etitioners' reliance on the presumption of regularity in the

performance of official duties falls in the face of a serious imputation on
non-compliance. The presumption of compliance with official duty is
rebutted by failure to present proof of posting.

Further, in Philippine Savings Bank v. Spouses Dionisio Geronimo and

Caridad Geronimo,[29] this Court rejected a similar contention, viz.:

Petitioner's invocation of the presumption of regularity in the

performance of official duty on the part of Sheriff Castillo is misplaced.
While posting the notice of sale is part of a sheriff's official functions,
the actual publication of the notice of sale cannot be considered as
such, since this concerns the publisher's business. Simply put, the
sheriff is incompetent to prove that the notice of sale was actually
published in a newspaper of general circulation.
 As correctly found by the RTC and the CA, the records[30] of the foreclosure
proceedings lacked any proof of publication. This explains why Metrobank could
not present any proof of publication.

We take this occasion to reiterate that the object of a notice of sale is to

inform the public of the nature and condition of the property to be sold, and of
the time, place, and terms of the sale. Notices are given for the purpose
of securing bidders and preventing a sacrifice sale of the property.

The goal of the notice requirement is to achieve a reasonably wide publicity of the
auction sale. This is why publication in a newspaper of general circulation is
required. The Court has previously taken judicial notice of the far-reaching effects
of publishing the notice of sale in a newspaper of general circulation. Thus, the
publication of the notice of sale was held essential to the validity of foreclosure
proceedings.[31] In this case, Metrobank failed to establish compliance with the
publication requirement. The RTC and the CA cannot, therefore, be faulted for
nullifying the foreclosure proceedings.

Metrobank next questions the authority of the RTC and the CA to take
cognizance of the records of the foreclosure proceedings as basis for annulling the
auction sale. It claims that the trial court may not take judicial notice of the
records of proceedings in another case, unless the parties themselves agreed to
it. Metrobank asserts that it did not give its consent to the trial courts
examination of the records of the extrajudicial foreclosure proceedings. Further,
the RTC did not even set a hearing for the purpose of declaring its intention to
take judicial notice of the records of the extrajudicial proceedings, as required by
Section 3[32] of Rule 129. Metrobank, thus, contends that the RTC exceeded its
authority in taking cognizance of the records of the extrajudicial proceedings.

We disagree.

As a rule, courts do not take judicial notice of the evidence presented in

other proceedings, even if these have been tried or are pending in the same court
or before the same judge. This rule, however, is not absolute.

In Juaban v. Espina[33] and G Holdings, Inc. v. National Mines and Allied

Workers Union Local 103 (NAMAWU),[34] we held that, in some instances, courts
have also taken judicial notice of proceedings in other cases that are closely
connected to the matter in controversy. These cases may be so closely
interwoven, or so clearly interdependent, as to invoke a rule of judicial notice.
 The RTC, therefore, acted well within its authority in taking cognizance of
the records of the extrajudicial foreclosure proceedings, and the CA cannot be
faulted for sustaining the RTC.

Metrobank further questions the trial courts finding of overpayment of

interests. But like the issue on compliance with the publication requirement, the
issue on overpayment of interests involves the ascertainment of facts not subject
of review by this Court. We reiterate that our jurisdiction is limited to reviewing
and revising errors of law imputed to the lower court, the latters findings of fact
being conclusive and not reviewable by this Court.[35]

Besides, we find nothing erroneous in this factual finding of the RTC. As

explained by the RTC in its decision:

[T]he Court notes that the original promissory notes evidencing the
various loans of the plaintiffs were not presented in court by either
party; they are needed to determine the stipulated interest rate. The
Court is thus left to determine the same based on the testimony of the
plaintiffs that the agreed interest rate is 12% per annum; amazingly,
this was not denied or refuted by the [petitioner] bank, in which case,
12% interest rate is applied at least for the period beginning 1997 until
1999, when the loan was renewed under the two (2) new promissory
notes which indicated a higher rate of interest of 17.250% per
annum. As mentioned above, the interest payments made by the
[respondents] were already admitted by [Metrobank] in its answer to
the complaint as well as in its comment to [respondents] formal offer of
evidence, and such interest payments are duly reflected and contained
in the passbook account of the [respondents], Exhibit H, H-1 to H-
10. But, in order to determine whether [respondents] account has
become past due or not, as the [petitioner] bank represents, the Court
deems it necessary to undertake some mathematical computation the
result of which would decisively guide the Court to arrive at a rightful
conclusion, thus:

1) Total interest payments by [respondents]

from May 7, 1997 to June 30, 1999 - P3,332,422.00

2) Interest due

from May 7, 1997 to June 30, 1999 - P1,802,500.00

 computed as follows:

a) 1st year (P7 M x 12%), from May 7, 1997 to May 28, 1998 -
P 840,000.00

b) 2nd year

i) from June 3, 1998 to Feb. 24, 1999 (8 mos.) - P 560,000.00 ii)

from March, 1999 to June 30, 1999 (4 mos.) - P 402,500.00

3) Total Interest paid - P 3,332,422.00

Less Interest due - P 1,802,500.00

Overpaid interest - P 1,529,922.00

From the foregoing, it is evident that [respondents] overpaid interests

for the period of two (2) years, from May 1997 to June 1999, in the
total amount of Php. 1,529,922.00. Thus, the Court is convinced that it
is just and equitable that such an overpayment be construed as advance
interest payments which should be applied for the succeeding period or
year of their contract. Otherwise, [Metrobank] would unjustly enrich
itself at the expense of [respondents]. In such a case, it was premature
then for [Metrobank] to declare [respondents] account as past due,
because at that juncture[, respondents] loan obligation was outstanding
and in declaring otherwise, [Metrobanks] action was without basis as
there was no violation of their loan contract. Consequently, it follows
that the foreclosure proceedings subsequently held on November 26,
2000 was without factual and legal basis, too. For, indeed, when the
foreclosure proceedings in question was conducted, [respondents] loan
account with [Metrobank], as it is said, was still outstanding, because
[respondents] were able to pay the interest due.Therefore, the Court is
again convinced that the nullification prayed for is in order.[36]

We need not say more.

In fine, the right of a bank to foreclose a mortgage upon the mortgagor's

failure to pay his obligation must be exercised according to its clear mandate, and
every requirement of the law must be complied with, or the valid exercise of the
right would end. The exercise of a right ends when the right disappears, and it
disappears when it is abused especially to the prejudice of others.[37]
 As further declared by this Court in Philippine Savings Bank v. Spouses
Dionisio Geronimo and Caridad Geronimo:[38]

While the law recognizes the right of a bank to foreclose a

mortgage upon the mortgagor's failure to pay his obligation, it is
imperative that such right be exercised according to its clear mandate.
Each and every requirement of the law must be complied with, lest, the
valid exercise of the right would end. It must be remembered that the
exercise of a right ends when the right disappears, and it disappears
when it is abused especially to the prejudice of others.

We, therefore, affirm the CA and sustain the RTC in nullifying the
extrajudicial foreclosure of real estate mortgage and sale, including Metrobanks
title.

With this disquisition, we find no necessity to discuss the issue of the

validity of the consolidation of title by Metrobank.

WHEREFORE, the petition is DENIED. The challenged Decision and

Resolution of the Court of Appeals in CA-G.R. CV No. 87775 are AFFIRMED.

SO ORDERED.
EN BANC

[G.R. No. 71523-25. December 8, 2000]

ROLANDO SANTOS y RAMIREZ, petitioner, vs. SANDIGANBAYAN

and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 72420-22. December 8, 2000]

JESUS E. ESTACIO, petitioner, vs. SANDIGANBAYAN, respondent.

[G.R. No. 72384-86. December 8, 2000]

ALFREDO R. FAJARDO, JR., petitioner, vs. SANDIGANBAYAN and

PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 72387-89. December 8, 2000]

MARCELO S. DESIDERIO, petitioner, vs. PEOPLE OF THE

PHILIPPINES and SANDIGANBAYAN, respondents.

DECISION
BUENA, J.:

Challenged in these four separate petitions for review on certiorari is the Decision
dated July 19, 1985[1] of the Sandiganbayan disposing of Criminal Case Nos. 5949 to
5951 as follows:

WHEREFORE, judgment is hereby rendered, finding accused Alfredo

Fajardo, Jr. alias Boy Fajardo, Marcelo Desiderio y Silvestre, Jesus Estacio y
Estrella and Rolando Santos y Ramirez alias Mickey Mouse, GUILTY as co-
principals in the three (3) separate complex crimes of Estafa Thru Falsification
of Public Documents and hereby sentences them as follows:

1. In Criminal Case No. 5949, there being no modifying circumstance in

attendance, each of said accused to suffer the indeterminate penalty ranging
from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision
correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY
of prision mayor as the maximum; to pay a fine of P5,000.00 each, to
indemnify, jointly and severally, the Bank of the Philippine Islands and/or the
Central Bank of the Philippines in the amount of P1 million representing the
amount defrauded, and to pay their proportionate costs of said action;

2. In Criminal Case No. 5950, there being no modifying circumstance in

attendance, sentences each of said accused to suffer the indeterminate
penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY
of prision correccional as the minimum, to TEN (10) YEARS and ONE (1)
DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to
indemnify, jointly and severally, the Bank of the Philippine Islands and/or the
Central Bank of the Philippines, in the amount of P3 million representing the
amount defrauded, and to pay their proportionate share of the costs of said
action;

3. In Criminal Case No. 5951, there being no modifying circumstance in

attendance, sentences each of them to suffer the indeterminate penalty
ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY
of prision correccional as the minimum, to TEN (10) YEARS and ONE (1)
DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to
indemnify, jointly and severally, the Bank of the Philippine Islands in the
amount of P5 million representing the amount defrauded, and to pay their
proportionate share of the costs of said action.

Accused Estacio, Fajardo, Jr., Santos and Desiderio appear to have been
detained at the NBI as of February 16, 1982 by virtue of a Presidential
Commitment Order, although all of them were later bonded and released on
different dates, except Santos who has remained in custody up to the
present. Accordingly, they should be granted the benefits of such preventive
imprisonment under Article 29 of the Revised Penal Code, as amended, as
follows: Santos from February 16, 1982 up to the date of the promulgation of
this decision; Estacio up to April 29, 1985; Fajardo, Jr. up to April 26, 1982
and Desiderio up to April 19, 1982.

Let copies of this decision be furnished the Hon. Governor, Central Bank; the
Citibank; the Bank of the Philippine Islands and the Bankers Association of
the Philippines for their information and guidance.

SO ORDERED.

On April 15, 1982, the Tanodbayan filed with the Sandiganbayan three (3)
informations for estafa thru falsification of public documents against Felipe Salamanca,
Mariano Bustamante, Basilio Tan, Alfredo Fajardo, Jr., Jesus Estacio, Rolando San
Pedro, Manuel Valentino, Rolando Santos, Marcelo Desiderio, Jaime Tan and Emilio
Reyes.[2] The informations filed were similarly worded except for the dates of
commission of the crime charged, the number of the checks involved, and the amounts
allegedly misappropriated. Thus:

That on or about (October 19, 1981 in Crim. Case No. 5949, November 20,
1981 in Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951),
in the City of Manila and within the jurisdiction of this Honorable Court,
accused Manuel Valentino, employed as Bookkeeper detailed at the Clearing
Office, Central Bank of the Philippines and accused Jesus Estacio y Estrella,
employed as Janitor-Messenger of the Central Bank of the Philippines, and as
such are public employees, with abuse of confidence and taking advantage of
their official position, in order to implement a plan or scheme to defraud the
Bank of the Philippine Islands, Laoag City Branch, which plan or scheme was
previously formulated and agreed upon by all the herein accused immediately
prior to (October 19, 1981 in Crim. Case No. 5949, November 20, 1981 in
Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951),
accused Manuel Valentino pursuant to said plan or scheme, did then and
there wilfully, unlawfully and feloniously and taking advantage of his official
position and with intent to gain and to defraud, falsify the Clearing Statement
prepared by the Central Clearing office of the Bank of the Philippine Islands
and submitted to the Clearing Section of the Central Bank of the Philippines
as well as the Manifest prepared by the Central Bank Clearing Office in
connection thereto by crossing out the entry in the duplicate copies of the
aforesaid Clearing Statement and Manifest which entries refer to Check No.
(27101 in Crim. Case No. 5949, 27111 in Crim. Case No. 5950, and 27108 in
Crim. Case No. 5951) and Check No. (27105 in Crim. Case No. 5949, 27118
in Crim. Case No. 5950 and 27121 in Crim. Case No. 5951) issued by
accused Bustamante against his checking account at the Bank of Philippine
Islands, Laoag City Branch, which has only an outstanding balance
of P1,000.00 and which checks were deposited in the current account of
Magna Management Consultant with the Citibank Greenhills Branch by
accused Rolando San Pedro and as a result of the aforesaid falsification
which made it appear that no such checks were submitted by the Bank of
Philippine Islands to the Central Bank of the Philippines for clearing, the Bank
of the Philippine Islands, Laoag City Branch has not issued any notice of
dishonor or stop payment to the Citibank Greenhills Branch, and as a
consequence thereof accused Rolando San Pedro was able to withdraw from
the Citibank the full amount of the two checks amounting to (P1,000,000.00 in
Crim. Case No. 5949, P3,000,000.00 in Crim. Case No. 5950,
and P5,000,000.00 in Crim. Case No. 5951) and thereafter all the accused
appropriated among themselves the proceeds thereof to their own personal
use and benefit and to the damage and prejudice of the Central Bank of the
Philippines or the Bank of the Philippine Islands, Laoag City Branch in the
aforementioned amount of (P1,000,000.00 in Crim. Case No.
5949, P3,000,000.00 in Crim. Case No. 5950, and P5,000,000.00 in Crim.
Case No. 5951).

Upon arraignment, accused Fajardo, Jr. @ Boy Fajardo, Desiderio, Estacio,

Valentino and Santos, assisted by their respective counsel, pleaded not guilty to the
crimes charged.[3]Salamanca, Basilio Tan, Jaime Tan, Reyes and Bustamante have
remained at-large while San Pedro died. Upon agreement of the prosecution and the
defense, a joint trial of the three cases was ordered conducted.[4]
Estacio was first discharged as an accused to be utilized as a state witness. [5] Later,
he filed a motion for his re-inclusion in the information as an accused allegedly for the
sake of the safety of his family. The Sandiganbayan granted his motion and thus he was
re-included as an accused in Crim. Case Nos. 5949-5951.[6] The prosecution also moved
for the discharge of Valentino as an accused but the Sandiganbayan denied that
motion. Exercising its discretion, the Sandiganbayan eventually discharged Valentino
from the three informations to be a state witness.[7]
The antecedent facts that gave rise to the instant petitions are as follows:
Sometime in 1981, a syndicate masterminded by Felipe Salamanca infiltrated the
Clearing Center of the Central Bank of the Philippines (Central Bank, for brevity). In its
operation, the syndicate employed two schemes: the switching scheme, and the
pilferage scheme.
In the switching scheme, a syndicate would open a current account with such banks
as the Bank of America (BA) and the Philippine Veterans Bank (PVB) in Iloilo. As a
matter of procedure, checks drawn on the BA were forwarded to the Central Bank for
clearing. Upon receipt of those checks by the clearing clerk of the Central Bank, who
was a member of the syndicate, he would substitute those checks with ones bearing the
stamp of another bank. Thus, instead of forwarding the checks to the BA, these were
misrouted to cause delay in the clearing procedure. Upon the lapse of the clearing
period, the depositor would withdraw the amount of the checks. However, the scheme
faltered as the huge amounts covered by the checks caused suspicion on the part of the
PVB. It called up the BA to inquire about those checks and hence, the former bank
discovered that the checks were insufficiently funded.
In the pilferage scheme, current accounts would be opened with a provincial bank,
such as the Bank of the Philippine Islands (BPI), Laoag branch, and a city bank such as
the Citibank-Greenhills, Manila. A BPI check deposited with Citibank would then be
forwarded to the Central Bank clearing house where members of the syndicate, who
were employed there, would pilfer the check and alter the Central Bank manifest and
the entries in the clearing bank statements. The pilferage was intended to provide
opportunity for the syndicate to blot out entries referring to the pilfered
check. Consequently, BPI-Laoag would not know that a check drawn on it had been
deposited with Citibank. After the lapse of the five-day clearing period, the syndicate
would withdraw the amount deposited from Citibank simply because said bank would
have considered the check cleared and funded, as no protest or notice of dishonor
could be received from BPI-Laoag. In utilizing this scheme in the commission of the
crimes charged in Criminal Case Nos. 5949 to 5951, the syndicate netted Nine Million
Pesos (P9,000,000.00).
EVIDENCE FOR THE PROSECUTION

The prosecution offered the testimonies of sixteen (16) witnesses, [8] and
documentary evidence marked Exhibits A to DD, and Annexes B to QQ, with sub-
markings, to prove the following:
On October 14, 1981, one Mariano Bustamante[9] opened a savings account with
BPI-Laoag with an initial deposit of P3,000.00: P2,000.00 of which was in check,
and P1,000.00 in cash.[10] That same day, he opened a current account with P1,000.00
as initial deposit in the same bank. Upon his request, a checkbook was issued to him.[11]
That same month, Marcelo Desiderio, allegedly a representative of Magna
Management Consultant, approached Maria Nieves Garrido, personal banker of
Citibank-Greenhills, and requested signature cards and other requirements for the
purpose of opening a current account. Thereafter, Desiderio returned to the bank,
submitted the required documents and duly accomplished forms, and made an initial
deposit of P10,000.00. Thus, a checking account in the name of Magna Management
Consultant was opened in Citibank-Greenhills with Rolando San Pedro as its
representative. A checkbook was given to Desiderio.[12]
On October 15, 1981, at the Ramada Hotel, Felipe Salamanca informed Manuel
Valentino that two (2) checks were to be deposited with Citibank the following
day. Salamanca instructed Valentino to watch out for those checks in the clearing house
at the Central Bank. On October 16, 1981, two (2) checks in the amounts of Four
Hundred Ninety-Eight Thousand Seven Hundred Nineteen Pesos (P498,719.00), and
Five Hundred One Thousand Two Hundred Sixty Pesos and Thirty Centavos
(P501,260.30) were indeed deposited with the Citibank-Greenhills under the current
account of Magna Management Consultant, represented by Rolando San Pedro. On
October 30, 1981, two (2) more checks were deposited at the same bank in the total
amount of P3,000,000.00. Another deposit of checks was made on November 20, 1981
in the total amount of P5,000,000.00. All these checks were brought to the Central Bank
Clearing Center.
The checks deposited on October 16, 1981 did not reach the Central Bank on that
day, which was a Friday, but on Monday, October 19, 1981. Manuel Valentino, a
bookkeeper at the Clearing Operations Division of the Central Bank, received from
Jesus Estacio, a Central Bank janitor-messenger, the demand envelope containing the
two (2) BPI-Laoag checks in the total amount of P1,000,000.00 in the comfort room on
the fourth floor of the Central Bank administration building. Therein Valentino altered the
amount of P1,076,416.95 by crossing out the amount of One Million Pesos. Thus, under
the column Total amount received, only the amount of P76,416.95 was reflected in
order that BPI-Laoag would not look for the P1 million check.[13] Valentino then brought
the altered clearing statement back to the Clearing Center and prepared a Central Bank
Manifest where he changed the figure in the original copy to tally with those in the
altered clearing statement.
On October 30, 1981, the syndicate employed the same scheme. As soon as the
demand envelope containing the BPI-Laoag checks arrived, Valentino took it and gave
it to Jesus Estacio who then brought the same to the comfort room at the fourth
floor. Valentino followed him there and took the two BPI checks amounting
to P3,000,000.00, and altered the figures in the BPI Clearing Statement. Valentino
thereafter brought said envelopes to the clearing house, and prepared the Central Bank
Manifest, likewise altering the figures in the original to tally with the figures in the altered
clearing statement.
At the last operation on November 20, 1981, the group followed the same
procedure Valentino asked Estacio to give him the demand envelope and the former
then went to the comfort room. Valentino took the two BPI-Laoag checks in the total
amount of P5,000,000.00 which he later gave to Salamanca. Again, he altered the
figures in the clearing statement and those in the Central Bank Manifest so that these
would conform with each other.[14]
As a matter of procedure, the demand envelopes containing the checks intended for
BPI-Laoag, the altered Central Bank Manifests, and the clearing statements were
forwarded to the Regional Clearing Center. The pilfered checks deposited in the
account of Magna Management Consultant were not included in those
envelopes. Because BPI-Laoag did not receive the checks with a total value
of P9,000,000.00, these were not processed. Consequently, as no objection or protest
regarding the checks were registered and no notice of dishonor of the checks for
insufficient funds was made by the BPI-Laoag, and since the reglementary period for
making such protest or notice of dishonor had elapsed, Citibank-Greenhills considered
the checks as good and funded.
Hence, on different dates covering the period from October 26 to December 6,
1981, Citibank-Greenhills allowed withdrawals in the aggregate amount
of P9,000,000.00 from the account of Magna Management Consultant. Withdrawals
were made through checks endorsed by Rolando San Pedro and encashed by Jaime R.
Tan.[15] The proceeds of the anomalous transactions were divided among the members
of the syndicate. Salamanca gave Estacio P10,000.00 after the October 19, 1981
operation, P4,900.00 after the October 30, 1981 operation and P5,000.00 after the
November 20, 1981 operation. Valentino received P20,000.00, P10,000.00
and P20,000.00 after the October 16 and 30, and November 20, 1981 operations.
On January 28, 1982, Segundo Gonzaga, then Administrative Assistant for Transit
Center (Clearing Center of BPI), was informed through a long distance telephone call by
the manager of BPI-Laoag that their clearing transactions on October 19, 1981, October
30, 1981 and November 20, 1981 registered an outstanding discrepancy
of P9,000,000.00 as reflected in their inter-office reconciliation statement. The manager
of BPI-Laoag and the BPI Regional Manager for Northern Luzon who went to the office
at BPI-Ayala showed the clearing statements to Gonzaga. Upon comparing the xerox
copies of the BPI Clearing Statements (Laoag copies) and xerox copies of the clearing
envelope sent to Citibank Manila, Gonzaga noticed the alterations. Thus, he went to the
Accounting Department of BPI-Ayala and found out that the Central Bank debited their
bank in the amount of P9,000,000.00.[16]
Gonzaga went to Citibank-Greenhills and talked to Jake Ocampo, its assistant
manager, about the clearing items. After checking their outgoing clearing checks for
October 19, 1981, October 30, 1981 and November 20, 1981, Ocampo told Gonzaga
that they did not recall said clearing checks. He gave Gonzaga reproduced microfilm
copies of those checks.Gonzaga submitted the checks to his superiors with an
accompanying report.[17] The BPI and the Central Bank jointly referred the matter for
investigation to the National Bureau of Investigation (NBI) which assigned the case to
Head Agent Salvador Ranin of the Special Investigation Division.[18]
On February 12, 1982, the Chief of the Anti-Bank Fraud Unit of the Central Bank,
Atty. Agapito Fajardo, the banks Chief Security Officer, and the BPI Vice-President and
Comptroller brought Manuel Valentino to the NBI. The following day, Agent Ranin took
Valentinos statement. Valentino waived his rights to remain silent and to counsel. He
signed the waiver on the first page of his statement. On March 22, 1982, Agent Ranin
took Valentinos supplementary sworn statement. The same NBI agent took Jesus
Estacios statement on February 17, 1982 and supplementary statement on March 22,
1982. Like Valentino, Estacio waived his right to counsel. In their respective statements,
Valentino and Estacio admitted their participation in the commission of the crime,
narrated how they carried out the plan to defraud the banks, and identified those who
participated in the criminal acts. After the investigation, Agent Ranin came out with a
Memorandum Report dated April 26, 1982.[19]

EVIDENCE FOR THE DEFENSE

On December 2, 1969, the Central Bank of the Philippines employed Jesus Estacio
as janitor-messenger. In 1978, a certain Rico Javier introduced Estacio to Felipe
Salamanca.When Salamanca learned that Estacio was connected with the Central
Bank, he asked Estacio if he knew any bookkeeper thereat as his compadre needed
one. Estacio replied that he would look for one. A week later, Salamanca called up
Estacio and asked him if he had found a bookkeeper. Estacio mentioned Manuel
Valentino. Salamanca instructed Estacio to bring Valentino to Jacks Restaurant in
Quezon City after office hours. In that restaurant, Estacio introduced Valentino to
Salamanca. Valentino was in turn introduced to Basilio Tan.During their conversation,
Valentino told Salamanca about his work as a bookkeeper at the Central Bank.[20]
Sometime in October 1981, Valentino requested Estacio to accompany him to the
EDCOR office. There they met Salamanca, Marcelo Desiderio, Rolando Santos and
Basilio Tan.Salamanca told Estacio to stay outside the office because the group was
going to discuss something. Half an hour later, the group dispersed. That same month,
Estacio saw Romeo Villasanta, another accused, at the clearing office of the Central
Bank. When Estacio asked why Villasanta was there, the latter answered that he was
just expediting something. Estacio saw Villasanta for the second time that same month
talking with Valentino at the clearing office. Valentino asked Estacio to point out the
office of the Department of Economic Research to Villasanta because Villasanta would
be doing some research. Estacio went with Villasanta to the fourth floor and showed
him the said office. Villasanta then inquired where the comfort room in that floor
was. Estacio thereafter went back to his work and did not see Villasanta anymore.[21]1
On November 20, 1981, Valentino asked Estacio to bring an envelope to the fourth
floor and to wait for him at its lobby. Estacio acceded and later, Valentino
arrived. Valentino took the envelope from Estacio and went to the comfort
room. Thereafter, Estacio went to the Clearing Office.[22]
Sometime in February 1982, upon learning that somebody from the NBI was looking
for him, Estacio went to the NBI. There he told Agent Ranin that he wanted to call a
lawyer but Agent Ranin did not allow him to do so. Agent Ranin investigated him from
5:30 p.m. until 7:30 p.m. on February 17, 1982. This continued the following day and
lasted a week. In the course of the investigation, Agent Ranin promised Estacio that he
would not be harmed should he cooperate and admit the charges against him, and that
he would be freed once he becomes a state witness. However, Agent Ranin hit him with
a newspaper and poked his gun at him. Estacio was allowed to read the statement
before he signed it.[23]
On cross-examination, Estacio admitted that during his stay at the NBI for about two
months, his wife and children would visit him every week and he could talk to them
freely.[24]He was transferred to Muntinlupa and detained at the Death Row for two
years. On March 22, 1982, Agent Ranin took his second statement that was a
continuation of his first statement. He was unable to read his supplementary statement
because of fear of Agent Ranin, who was scaring him. He stressed that the statements
he made before the NBI were not true and that he only signed those
documents[25] because he was afraid of Agent Ranin.[26]
Rolando Santos came to know Felipe Salamanca when he sold his car to him
(Salamanca) on installment with P15,000.00 as down payment with the balance
of P20,000.00 to be paid in two or three months. He accepted partial payment for the
car. After a time, Salamanca fully paid the balance. In July 1981, Salamanca gave
him P3,000.00. Twice or thrice, Salamanca tried to convince him to join a scheme to
defraud a bank. After Salamanca had paid him the full price of the car, Salamanca
asked him again to join his group. All he had to do was to open a checking account. He
could have easily facilitated this, being the Vice-President for Finance of American
Steamship Agencies. In those meetings with Salamanca where he was persuaded to
open a checking account with a bank, Basilio Tan, the son of a general and his
classmate at San Beda College, Valentino, and Desiderio were present.When he told
Salamanca that he was not interested in the scheme to defraud a bank, as he was busy
with his job, Salamanca got mad. On October 20, 1981, an unidentified assailant shot
him in his house. He sustained three (3) gunshot wounds and was confined at the
Paraaque Medical Center.[27]
Marcelo Desiderio came to know Felipe Salamanca sometime in July 1981 when
Salamanca went to his office[28] because he wanted to open an account with Citibank-
Greenhills.Desiderio went to Citibank-New York to inquire about the requirements for
opening an account. Two days later, he gave Salamanca the bank forms and signature
cards to be accomplished. He learned from Salamanca that the forms would be filled up
by Rolando San Pedro. For the initial deposit, Salamanca gave him P10,000.00 in cash
and check. He also received P2,500.00 as consultancy fee. He went to Citibank-
Greenhills to make the deposit and the bank issued him a checkbook. [29]
 Desiderio denied that he was present in any meeting where Salamanca and his
group discussed a plan to defraud a bank. He acceded in opening the bank account at
Citibank-Greenhills because Salamanca assured him that the account would be opened
in connection with a loan application with the Citibank of New York. He denied that
Salamancas group tasked him and Rolando Santos with opening accounts in Metro
Manila banks, particularly with Citibank-Greenhills. He denied knowing Santos and
Estacio personally although he admitted that Estacio, with Manuel Valentino, came to
his office to deliver a tailored suit for a certain Atty. Martin. He further denied knowing
Jaime Tan but admitted knowing Alfredo Fajardo, who was his client when he was still
connected with BPI.[30]
Alfredo Fajardo opted to waive his right to testify and said that he has no
documentary evidence to present before the Sandiganbayan.[31] Another accused, Emilio
Reyes, voluntarily surrendered to the Sandiganbayan and was detained at the Security
and Sheriff Services office.[32] He filed a motion for reinvestigation on June 16, 1987 but it
was resolved against him.[33] He pleaded not guilty to the charges against
him.[34] However, since July 17, 1989, Reyes failed to appear for trial. On February 16,
1990, the Sandiganbayan acquitted him in these cases on account of the prosecutions
failure to prove his guilt beyond reasonable doubt. [35] Because the cases against Reyes
were tried in absentia, the Sandiganbayan ordered that these be archived without
prejudice to revival for purposes of contempt citation in the event that he shall have
been apprehended and brought within the jurisdiction of the court.[36]
Rolando San Pedro was arrested on March 22, 1988 at the vicinity of the
Sandiganbayan.[37] He entered a plea of not guilty to the charges against him. [38] On June
11, 1989, he died.[39] Thus, the Sandiganbayan dismissed the cases against him. In the
Resolution of February 23, 1990, which was promulgated on March 12, 1990, the
Sandiganbayan resolved that the cases against Felipe Salamanca, Basilio Tan, Jaime
Tan and Mariano Bustamante be archived.[40]
As stated earlier, the Sandiganbayan convicted Estacio, Desiderio, Santos, and
Fajardo of the complex crimes of estafa thru falsification of public documents. Estacio,
Desiderio and Fajardo filed separate motions for reconsideration,[41] while Santos filed
with the Supreme Court a motion for extension of time to file a petition for certiorari.[42] On
September 26, 1985, the Sandiganbayan denied those motions for
reconsideration.[43] Hence, the instant petitions for review on certiorari that they individually
filed with this Court, but which were consolidated in the Resolution of December 10,
1985.[44]
In its consolidated comment on the petitions, the Office of the Solicitor General
(OSG) questions the propriety of raising factual issues in a petition for review
on certiorari under Rule 45 of a Decision of the Sandiganbayan.[45] The OSG asserts that
in such a petition, this Courts jurisdiction is confined to questions of law and hence, this
Court is not supposed to reweigh evidence but only to determine its substantiality. On
this matter, in Filoteo, Jr. vs. Sandiganbayan,[46] this Court, after citing Jariol, Jr. vs.
Sandiganbayan,[47] said:

As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly
provides that `(d)ecisions and final orders of the Sandiganbayan shall be
appealable to the Supreme Court by petition for review on certiorari raising
pure questions of law in accordance with Rule 45 of the Rules of Court.
However, in exceptional cases, this Court has taken cognizance of questions
of fact in order to resolve legal issues, as where there was palpable error or
grave misapprehension of facts by the lower court. Criminal cases elevated by
convicted public officials from the Sandiganbayan deserve the same thorough
treatment by this Court as criminal cases involving ordinary citizens simply
because the constitutional presumption of innocence must be overcome by
proof beyond reasonable doubt. In all criminal cases, a persons life and liberty
are at stake.

While only petitioner Estacio is a government employee in these cases, as the three
others are private individuals, it is in the light of this pronouncement that the instant
petitions shall be considered and resolved. Moreover, in the recent case of Armed
Forces of the Philippines Mutual Benefit Association, Inc. vs. Court of
Appeals,[48] the Court, citing Supreme Court Circular No. 2-90 dated March 9, 1990, held
that a petition for review on certiorari questioning the final judgment, order, or resolution
of the Court of Appeals, the Sandiganbayan, the Regional Trial Courts or other courts,
may raise factual issues. In the exercise of its sound discretion, taking into account the
attendant circumstances, this Court retains the option of either taking cognizance of,
and deciding such issues, or referring the case to the proper court for determination. In
these criminal cases, this Court chooses to take cognizance of factual questions raised
in the interest of proper administration of justice.
In their separate petitions, petitioners assert that there was no proof beyond
reasonable doubt that they committed the crimes charged principally because:
(a) the extrajudicial confessions of petitioner Estacio and Valentino are inadmissible in
evidence as their right to counsel was violated when said confessions were
executed;
(b) the discharge of Valentino from the informations to be a state witness was
improper; and
(c) conspiracy, which made all petitioners equally guilty, was not adequately proven.
Notably, petitioners Santos and Estacio aver that, should they be convicted as charged,
they should be held individually liable only as an accomplice.[49]
Relevant to petitioners contention on the admissibility of the extrajudicial
confessions of petitioner Estacio and Valentino is Article IV, Section 20 of the 1973
Constitution providing for the rights of an accused during custodial investigation. It
reads:

No person shall be compelled to be a witness against himself. Any person

under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such rights. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence.

On the other hand, the first paragraph of Article III, Section 12 of the 1987
Constitution states:

(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of
counsel.

A comparison of these provisions would readily show that the 1973 Constitution
does not specify the right against uncounselled waiver of the right to counsel, which is
found in paragraph 1, Section 12, Article III of the 1987 Constitution. However, the latter
constitutional provision cannot be applied to extrajudicial confessions made prior to its
date of effectivity. In Filoteo, Jr. vs. Sandiganbayan, this Court held that:

x x x the specific provision of the 1987 Constitution requiring that a waiver by

an accused of his right to counsel during custodial investigation must be made
with the assistance of counsel may not be applied retroactively or in cases
where the extrajudicial confession was made prior to the effectivity of said
Constitution. Accordingly, waivers of the right to counsel during custodial
investigation without the benefit of counsel during the effectivity of the 1973
Constitution should, by such argumentation, be admissible. Although a
number of cases held that extrajudicial confessions made while the 1973
Constitution was in force and effect, should have been made with the
assistance of counsel, the definitive ruling was enunciated only on April 26,
1983 when this Court, through Morales, Jr. vs. Enrile, issued the guidelines to
be observed by law enforcers during custodial investigation. The Court
specifically ruled that `(t)he right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Thereafter,
in People vs. Luvendino, the Court through Mr. Justice Florentino P. Feliciano
vigorously taught:

`x x x. The doctrine that an uncounselled waiver of the right to counsel is not

to be given legal effect was initially a judge-made one and was first
announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March
1985 in People vs. Galit. x x x.

While the Morales-Galit doctrine eventually became part of Section 12 (1) of

the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino
for the requirements and restrictions outlined in Morales and Galit have no
retroactive effect and do not reach waivers made prior to 26 April 1983 the
date of promulgation of Morales. [50]

Clearly then, the Morales-Galit rulings are inapplicable in these cases as the
extrajudicial confessions in question here, were taken on February 13, February 17 and
March 22, 1982, long before the date of promulgation of the Morales Decision on April
26, 1983. Prior to this date, the guidelines requiring that waiver of the right to counsel by
an accused can be properly made only with the presence and assistance of counsel,
had yet to be formulated and pronounced by this Court.[51]
The rule on prospective application of judge-made laws was stressed in Co vs.
Court of Appeals.[52] In that case, the Court, through then Chief Justice Andres R.
Narvasa, ruled that in accordance with Article 8 of the Civil Code providing that (j)udicial
decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines, and Article 4 of the same Code stating that (l)aws shall
have no retroactive effect, unless the contrary is provided, the principle of prospectivity
of statutes, original or amendatory, shall apply to judicial decisions, which, although in
themselves are not laws, are nevertheless evidences of what the law means.
As to the admissibility of the uncounselled waivers of Valentino and petitioner
Estacio of their right to counsel during custodial investigation, the intelligent and
voluntary execution thereof should be determined. The pre-interrogation advisories to
the extrajudicial confessants uniformly state:
01. QUESTION: Mr. MANUEL VALENTINO, we are informing you that you are under
investigation in connection with the alleged Estafa thru Falsification of
Commercial/Official Documents committed at the Central Bank of the Philippines. But
before we ask you any question, you must understand your legal rights. You have the
right to remain silent. You have the right not to give any statement if you do not wish
to. Anything you say may be used as evidence against you in any proceeding. You are
entitled to the assistance of counsel of your own choice. If you cannot afford a lawyer
and you want one, a lawyer will be appointed for you before we ask you any
question. Now, after having been so informed, are you still willing to give a free and
voluntary statement and swear to tell the truth and nothing but the truth in this
investigation?
ANSWER: Yes, sir.
02. Q: Are you willing to sign a Waiver of your rights?
A: Yes, sir.

WAIVER

I have been advised of my right to remain silent; that anything that I say may
be used as evidence against me and that I have the right to a lawyer to be
present with me while I am being questioned.
I understand these rights and I am willing to make a statement and answer
questions. I do not want the assistance of counsel and I understand and know
whag (sic) I am doing. No promises or threats have been made to me and no
force or pressure of any kind has been used against me.

(Sgd. with thumbmark)

MANUEL VALENTINO y SOCAN
13 February 1982, NBI, Manila [53]

It is settled that once the prosecution has shown that there was compliance with the
constitutional requirement on pre-interrogation advisories, a confession is presumed to
be voluntary and the declarant bears the burden of proving that his confession is
involuntary and untrue.[54] The defense attempted to prove that Valentino and petitioner
Estacio were subjected to threats and intimidation at the NBI to obtain their
confessions. Other than their bare assertions, Valentino and petitioner Estacio
miserably failed to present any convincing evidence to prove the NBIs use of force or
intimidation on their persons. Before signing their statements, they never protested
against any form of intimidation, much more, of maltreatment that they could have
relayed to relatives visiting them at the NBI. In People vs. Pia,[55] the Court said:

x x x It has been held that where the defendants did not present evidence of
compulsion or duress or violence on their persons; where they failed to
complain to the officers who administered the oaths; where they did not
institute any criminal or administrative action against their alleged intimidators
for maltreatment; where there appeared to be no marks of violence on their
bodies and where they did not have themselves examined by a reputable
physician to buttress their claim, all these should be considered as factors
indicating voluntariness of confessions.

That the statements were intelligently executed is borne out by the fact that both
confessants have reached the tertiary level of education: Valentino holds the degree of
Bachelor of Science in Commerce[56] while petitioner Estacio reached the first year of
college education in banking and finance.[57] Possessed with sufficient education and not
proven to be mentally unfit, they could have protested the forced extraction of culpability
from themselves if indeed that was true.
Moreover, the extrajudicial confessions in question are replete with details on the
manner in which the crimes were committed, thereby ruling out the probability that these
were involuntarily made.[58] Voluntariness of a confession may be inferred from its
language such that, if upon its face the confession exhibits no sign of suspicious
circumstances tending to cast doubt upon its integrity, it being replete with details which
could possibly be supplied only by the accused reflecting spontaneity and coherence
which, psychologically, cannot be associated with a mind to which violence and torture
have been applied, it may be considered voluntary. [59] In U.S. vs. De los Santos,[60] the
Court said:

If a confession be free and voluntary the deliberate act of the accused with a
full comprehension of its significance, there is no impediment to its admission
as evidence, and it then becomes evidence of a high order; since it is
supported by the presumption a very strong one that no person of normal
mind will deliberately and knowingly confess himself to be the perpetrator of a
crime, especially if it be a serious crime, unless prompted by truth and
conscience.

In these cases, the NBI investigator would not have known the members of the
syndicate and the sophisticated manner by which the crimes in question were
perpetrated if Valentino and Estacio, who were directly involved therein, did not reveal
these.
With respect to the admissibility of the extrajudicial confessions of Valentino and
petitioner Estacio against their co-accused, once again, this Court declares that
although an extrajudicial confession is admissible only against the confessant,
jurisprudence makes it admissible as corroborative evidence of other facts that tend to
establish the guilt of his co-accused.[61] In People vs. Alvarez,[62] this Court ruled that
where the confession is used as circumstantial evidence to show the probability of
participation by the co-conspirator, that confession is receivable as evidence against a
co-accused. The Court elucidated further in People vs. Encipido[63] as follows:

It is also to be noted that APPELLANTS extrajudicial confessions were

independently made without collusion, are identical with each other in their
material respects and confirmatory of the other. They are, therefore, also
admissible as circumstantial evidence against their co-accused implicated
therein to show the probability of the latters actual participation in the
commission of the crime. They are also admissible as corroborative evidence
against the others, it being clear from other facts and circumstances
presented that persons other than the declarants themselves participated in
the commission of the crime charged and proved. They are what is commonly
known as interlocking confession and constitute an exception to the general
rule that extrajudicial confessions/admissions are admissible in evidence only
against the declarants thereof.

Petitioner Estacio claimed that, to his surprise, he found Valentino at the NBI. They
talked for a while and Valentino told him to say whatever he (Valentino) would
say.[64] That allegation alone cannot be considered as indicative of collusion between
them as their sworn statements both contain facts showing their deep involvement in
the scheme to defraud a bank. Human experience dictates that no one would volunteer
to demonstrate ones culpability unless it was the truth. It may thus be safely presumed
that in telling petitioner Estacio to say whatever he would say, Valentino was merely
cautioning petitioner Estacio to tell the truth. Nevertheless, even without the extrajudicial
confessions of petitioner Estacio and Valentino, evidence on record is sufficient to
sustain a finding of culpability.[65]
On the validity of the discharge of Valentino from the information to be a state
witness, the determination of who should be used as a state witness to bolster the
successful prosecution of criminal offenses is part of prosecutorial
discretion.[66] However, it is the courts that finally determine whether the requirements of
the Rules of Court[67] have been satisfied to justify the discharge of an accused to
become a state witness.
It should be recalled that petitioner Estacio was originally discharged to be a state
witness. Upon his manifestation that he would rather remain an accused in these cases
for the protection of his family, the court re-included him in the information. Apparently
considering the nature of the crimes and the secrecy by which these were perpetrated,
the prosecution was left with no recourse but to side with Valentinos motion for his
discharge to be a state witness. The absolute necessity for the testimony of someone
who was a participant in the criminal scheme is buttressed by the ruling that where a
crime is contrived in secret then the discharge of one of the conspirators is essential so
he can testify against the other conspirators.[68] In a conspiracy which was done in
secret, there is a necessity to discharge one of the accused to provide direct evidence
of the commission of the crime.[69]
Worth noting, however, is that Valentinos testimony and his sworn statements differ
with regard to petitioner Estacios participation in the commission of the October 19,
1981 criminal act, and the participation of petitioner Fajardo in the three
crimes. Valentino stated in his sworn statement that on October 19, 1981, when he
noticed that the BPI representative had placed the demand envelope containing the
BPI-Laoag checks for clearing at the Laoag counter behind him, petitioner Estacio, who
was the syndicates messenger, immediately came with a push cart. Petitioner Estacio
placed the demand envelope in the pushcart and proceeded to the comfort room in the
fourth floor where Valentino followed him to alter the documents to suit the syndicates
purposes. On the other hand, when he testified, Valentino asserted that he did not see
petitioner Estacio at the meeting when they hatched the first operation on October 16,
1981. When the alterations were made on October 19, 1981, Valentino claimed that
petitioner Estacio was not with them[70] for it was he himself who brought the bundle of
checks to the fourth floor comfort room where Villasanta took the checks and altered the
bank statements.
With respect to petitioner Fajardo, Valentino averred in his supplementary sworn
statement that petitioner Fajardo was present in three or four conferences where he
participated in the discussion to defraud a bank.[71] However, on the witness stand,
Valentino swore that petitioner Fajardo had no participation in these cases [72] or in the
three operations subjects of these cases.
These discrepancies in Valentinos sworn statements and testimony are material
ones as far as petitioners Estacio and Fajardo are concerned. On this issue, the Court
has consistently held that:

x x x discrepancies between the statement of the affiant in his affidavit and

those made by him on the witness stand do not necessarily discredit him
since ex-parte affidavits are generally incomplete. Affidavits are generally
subordinate in importance to open court declarations because they are
oftentimes not in such a state as to afford him a fair opportunity of narrating in
full the incident which has transpired in his affidavit and those made by
him. This is so because affidavits are frequently prepared by the administering
officer and cast in the latters language or the latters understanding of what the
affiant had said, while the affiant frequently simply signs the affidavit after the
same has been read to him. [73]

In People vs. Fabro, the Court ruled that repudiation and recantation of
confessions which have been obtained in accordance with the Constitution are looked
upon with disfavor as unreliable.[74] However, that ruling may not find application under
the circumstances of these cases. In Fabro, it was the accused himself who recanted
his confession when, on the witness stand, he denied he committed the crime. No other
witness testified for the defense. On the other hand, in these cases, Valentino, a co-
conspirator who appeared as a state witness before the court, adhered to his
confession as regards the participation of the accused, except that he testified that
petitioner Estacio was absent when the first crime was planned and committed, and that
petitioner Fajardo was not involved in the three cases. It has been held that where a
witness who testified for the prosecution subsequently testifies for the defense by
retracting his previous testimony, the test to decide which testimony to believe is a
comparison coupled with the application of the general rules of evidence.[75]Although
these cases do not involve the conflicting testimonies of a witness, that rule may be
applied in a conflict between a sworn statement and the testimony while recognizing the
inferiority of a sworn statement to a testimony. In these cases, the narration of facts in
Valentinos sworn statements were in substance reproduced in his testimony which, in
turn, was supported by other testimonial evidence and the voluminous documentary
evidence.
In the absence of any reason to question the credibility of Valentino and that of his
testimony, that portion of his testimony on the nonparticipation of petitioner Estacio in
Crim. Case No. 5949 and petitioner Fajardo in all three cases shall be controlling. We
deem the variance in Valentinos testimony as endeavors to rectify his sworn statements
to conform to the truth. To reiterate, such variance, does not make him a less credible
witness or affect the merit of his testimony, as the other pieces of prosecution evidence
support it and do not prove that it is untruthful or contrived.
The value of Valentinos testimony in the prosecution of these cases cannot be
underestimated. It fills in the gaps in the prosecution evidence that the other prosecution
witnesses failed to cover. Without it, conspiracy to defraud the BPI-Laoag
of P9,000,000.00 through falsification of the clearing statement and manifest would not
have been proven beyond reasonable doubt.
A conspiracy exists when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it.[76] As creditably shown by the
prosecution, the crimes were committed not solely by the person who altered the
clearing statement and manifest. That all-important act, the conception of which could
have been hatched only by one familiar with banking procedures, would not have been
possible if not for the indispensable cooperation of others. Thus, Valentino testified:
Q Will you please describe in detail what was agreed upon during the meeting?
A It was agreed upon that Salamanca and Villasanta will open an account at Laoag
Branch of the Bank of the Philippine Islands and Desiderio also and Santos are also in
charge in opening accounts in Metro Manila, particularly Citibank, Greenhills. Basilio
Tan, he is stationary in the office. Jaime Tan and Rolando San Pedro are the ones in
charge in withdrawals at the Citibank.[77]
However, the liability of each of the petitioners must be considered within the
purview of the following pronouncement in the celebrated case of People vs.
Berroya[78] where the Court said that:

x x x to hold an accused liable as co-principal by reason of conspiracy, he

must be shown to have performed an overt act in pursuance or furtherance of
the conspiracy. That overt act may consist of active participation in the actual
commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the time of the commission of the crime, or
by exerting moral ascendancy over the other co-conspirators by moving them
to execute or implement the conspiracy. Hence, the mere presence of an
accused at the discussion of a conspiracy, even approval of it without
any active participation in the same, is not enough for purposes of
conviction. Thus, assuming Vienes was a participant in the planning to
abduct a Taiwanese national, in the absence of eyewitnesses to the actual
abduction, there is a paucity of evidence as to whether or not Vienes carried
out his part of the plan. (emphasis supplied)

In these cases, even if Valentinos supplementary sworn statement stating that

petitioner Fajardo participated in the discussion of the scheme to milk money from a
bank should be given evidentiary weight, still, that evidence is not enough to convict
him. There is no evidence showing that he participated in opening a bank account in the
procedure to alter the clearing manifests and statements, or in the withdrawal of
substantial amounts resulting from such alteration of documents. There is thus
insufficient evidence against petitioner Fajardo to find him culpable for the crimes
charged in these cases and hence, he should be acquitted.
Similarly situated as petitioner Fajardo, is petitioner Santos. His admission to
having attended several meetings of Salamancas group did not satisfactorily define his
liability as a conspirator considering the absence of any proof that he committed an
overt act in pursuance of the syndicates scheme. His pretext of having entered into a
car sale with Salamanca may ring hollow in truth but the weakness of his defense
cannot be taken against him considering the insufficiency of prosecution evidence on
his participation in the actual commission of the crime. His acquittal is, therefore,
likewise in order.
With respect to petitioner Estacio, Valentinos testimony on the first syndicate
operation on October 16, 1981 should be counted in his favor. There is insufficient
evidence that he participated in the alteration of documents at the Central Bank
Clearing Office on October 19, 1981 much more in the prior discussion to perpetrate the
crime. Hence, his acquittal in Criminal Case No. 5949 should follow. However, as
regards the syndicate operations on October 30, 1981 and November 20, 1981, there is
proof beyond reasonable doubt of his role in carrying the demand envelopes to the
Central Banks fourth floor comfort room where alterations were made. By the nature of
his work, he had access to these demand envelopes containing BPI checks. His
participation in the conspiracy was therefore vital to the realization of the syndicates
objectives.
Parenthetically, the Court notes with dismay the Sandiganbayans pronouncement
that petitioner Estacios wishy-washy attitude in offering himself as a state witness
confirmed his knowledge of the intimate details of the conspiracy and the mode or
manner by which its operations and schemes would be initiated and
consummated.[79] Such conclusion is in consonance with the presumption of guilt, not
with that of innocence. An accused may have some reasons for his irresolute action as
far as testifying for the prosecution is concerned.Petitioner Estacio had such reason he
feared for the safety of his family considering that he would be up against a syndicate
that, because of the success of its evil scheme, had the money to harm their perceived
enemies. That petitioner Estacio was deeply enmeshed in the syndicates activities to
bleed money from banks is shown by the fact that in Crim. Case No. 6603 involving the
syndicates operation in the Solidbank, his conviction for the crime of estafa thru
falsification of public/commercial documents was affirmed by this Court in G.R. No.
75362.[80] But such conviction for another crime must not be the basis for a conclusion
that the accused is guilty of another crime charged, although basically, the same
criminal acts were committed. We therefore find the Sandiganbayans pronouncement
totally unexpected of a court that must determine the culpability of an accused based on
the prosecution evidence and not on the weakness of the defense or the reputation of
an accused.
Petitioner Desiderio, on the other hand, has been proven guilty beyond reasonable
doubt for having participated both in the discussion and mapping out of the malevolent
scheme and in its actual execution. Desiderios knowledge of banking procedures
provided the rationale for his giving birth, or having authored the scheme along with
Salamanca and Villasanta.[81] He had served as branch manager in the BPI where he
was employed for twenty-seven years, or until he was charged with estafa for
accommodating a clients loan against an uncollected deposit.[82] Nieves Garrido, a
personal banker at Citibank-Greenhills, who entertained him when he made queries
about opening a current account, confirmed his having opened said account for Magna
Management Consultant, thereby lending credence to and corroborating Valentinos
testimony on his role in the implementation of the criminal scheme.
Petitioner Desiderios claim that he opened that account in accordance with his
legitimate role as consultant in Mardes Management Consultant is a lame
excuse. Anyone, especially a businessman such as San Pedro or Salamanca, could
have opened a current account without hiring the services of a management
consultant. That lame excuse sounds even lamer considering the evidence showing that
his alleged client was also engaged in management consultancy. Desiderio thus relied
on denial as a mode of defense. A denial, like other defenses, remains subject to the
strength of the prosecution evidence which is independently assessed. When the
evidence for the prosecution convincingly connects the crime and the culprit, the
probative value of the denial is negligible.[83] Desiderios denial of complicity in the
scheme cannot, therefore, prevail over the positive testimonies of Nieves Garrido and
Valentino that he played the important role of opening the current account that paved
the way to the inside jobs of petitioner Estacio, Valentino and, probably, Villasanta. His
sole overt act under the syndicates scheme facilitated the commission of all three
counts of estafa thru falsification of public documents.
Notably, in these cases, the Sandiganbayan observed that none of the accused
refuted the documentary exhibits offered in evidence by the prosecution.[84] The pieces of
documentary evidence consist of bank records including deposit slips, ledger cards,
specimen cards, checks for deposit and withdrawal, clearing statements and clearing
manifests. All of these clearly and positively buttress the prosecutions theory as to how
the pilferage scheme was successfully implemented. The defense obviously could not
demolish the evidentiary weight of the prosecutions documentary evidence and hence,
it focused on the prosecution evidence on the membership of the accused in the
syndicate, and on the probative value of the interlocking confessions of Valentino and
petitioner Estacio. There is thus no alternative to giving full credence and merit to the
prosecutions documentary evidence, and to declaring them to be in complete accord
with the prosecution theory on the commission of the offenses and the nature and
extent of participation of the accused.
The informations filed in these cases individually charge an offense defined and
penalized under Article 315, par. 2 (a) in relation to Article 171, par. 2 of the Revised
Penal Code.The elements of estafa are as follows: (1) the accused defrauded another
by abuse of confidence, or by means of deceit; and (2) the offended party or a third
party suffered damage or prejudice capable of pecuniary estimation. [85] It is indubitable
that estafa was committed by abuse of confidence in these cases. The conspirators that
enlisted and utilized the assistance of Central Bank employees abused the confidence
that the banking system reposed upon such employees. As a result of such abuse of
confidence, the BPI sustained damage in the aggregate of Nine Million Pesos
(P9,000,000.00). Verily, the perpetrators of the crimes breached even the confidence
that people reposed on the Central Bank and the whole banking system.
By falsifying clearing documents, the offenders committed the complex crime of
estafa thru falsification of public documents. Under Article 171 (4) of the Revised Penal
Code, any public officer or employee who, taking advantage of his official position,
makes untruthful statements in a narration of facts, commits the crime of falsification of
public documents. This kind of falsification requires the concurrence of the following
requisites: (a) the offender makes in a document untruthful statements in a narration of
facts; (b) he has a legal obligation to disclose the truth of the facts narrated by him; and
(c) the facts narrated by the offender are absolutely false.[86]
The prosecution has duly proven these requisites. Valentino occupies a public
position as bookkeeper at the Clearing Office of the Central Bank. He intercepted and
pilfered BPI-Laoag checks with the assistance of petitioner Estacio, a janitor-messenger
at the Central Bank. In the comfort room, Valentino and/or Villasanta, who has so far
avoided the clutches of the law, tampered with the clearing statements and clearing
manifests which Estacio had taken from Valentinos desk. The tampered documents,
along with the pilfered demand envelopes, were then sent to the Central Bank Regional
Clearing Center in Laoag. These inside jobs were perpetrated as part of the decadent
scheme that private individuals had hatched to gain monetary gratification.
Article 315, paragraph 2 (a) under which the defendants were charged in these
cases, states that any person who shall defraud another by means of using fictitious
name, or falsely pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of other similar deceits shall
be held liable for the crime of swindling (estafa). Under the peculiar circumstances
proven in these cases, the crime actually committed by the offenders is that defined in
Article 318 of the Revised Penal Code on other deceits. The first paragraph of this
article states that (t)he penalty of arresto mayor and a fine of not less than the amount
of the damage caused and not more than twice such amount shall be imposed upon
any person who shall defraud or damage another by any other deceit not mentioned in
the preceding articles of this chapter. Although the information charged the accused
with violation of paragraph 2 of Article 171 of the Revised Penal Code defining the crime
of falsification by public officer of employee, the Sandiganbayan correctly found that the
accused violated paragraph 4 of the same Article which states as follows:

The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be
imposed upon any public officer, employee, or notary who, taking advantage
of his official position, shall falsify a document by committing any of the
following acts:

xxx xxx xxx

4. Making untruthful statements in a narration of facts.

Inasmuch as the crime committed in these cases is the complex crime of estafa thru
falsification of public documents and Article 48 of the Revised Penal Code states that
when an offense is a necessary means for committing another offense, the penalty for
the most serious crime shall be imposed in its maximum period, the penalty for the
crimes committed in these cases is that imposed for falsification of public documents
or prision mayor in its maximum period and a fine of P5,000.00.
While it appears that the Sandiganbayan correctly held that the basis for imposition
of penalty should be that imposed by law for falsification of public documents, it erred in
imposing the maximum penalty of the indeterminate sentence it meted upon the
accused. Finding no modifying circumstances, the Sandiganbayan imposed for each
complex crime of estafa thru falsification of public document, the indeterminate penalty
of four (4) years, two (2) months and one (1) day of prision correccional to ten (10)
years and one (1) day of prision mayor.
 Under the procedural guidelines for imposing penalties for complex crimes
enunciated in Nizurtado vs. Sandiganbayan,[87] the first step in determining the proper
penalty is to consider whether or not aggravating and/or mitigating circumstances
attended the commission of the crimes.
Only petitioner Estacio claimed that he voluntarily surrendered. For said mitigating
circumstance to be appreciated, surrender must be made spontaneously or in such a
manner that it shows the intent of the accused to surrender unconditionally to the
authorities, either because he acknowledges his guilt, or because he wishes to save
them the trouble and expense of finding and capturing him.[88] According to NBI Agent
Ranin, petitioner Estacio went to the NBI bearing a referral note from Atty. Agapito
Fajardo, Chief of Anti-Fraud Unit of the Central Bank.[89] However, it was proven by the
prosecution beyond peradventure of doubt that petitioner Estacios alleged surrender
was anything but spontaneous. He went to the NBI on February 17, 1982,[90] five days
after Atty. Fajardo had brought Valentino to that office for questioning, and a day after a
Presidential Commitment Order (PCO) had been issued against him and
Valentino.[91] Moreover, the booking sheet and arrest report states that petitioner Estacio
was arrested on February 16, 1982.[92] Voluntary surrender having been insufficiently
proven, as far as penalty is concerned, petitioner Estacio in Crim. Cases Nos. 5950-51
shall suffer the same penalty as petitioner Desiderio who did not present proof that
could mitigate the penalty that he should suffer for the crimes.
Article 64 of the Revised Penal Code states that when the penalty prescribed by law
is a single divisible penalty, the accused shall be imposed the medium period of such
penalty when there are neither aggravating nor mitigating circumstances. The propriety
of imposing the medium period of the more serious penalty for a complex crime after
considering the modifying circumstances notwithstanding that Article 48 requires the
imposition of the penalty in its maximum period has been settled. [93] It is supported by the
doctrine that penal provisions shall be interpreted in favor of the accused.
The medium period of prision mayor is eight (8) years and one (1) day to ten (10)
years. In the absence of impediments to the application of the Indeterminate Sentence
Law, for each crime committed, the penalty that should be imposed upon petitioner
Estacio in Crim. Case Nos. 5950 and 5951, and upon petitioner Desiderio in Crim. Case
Nos. 5949, 5950 and 5951, shall be the indeterminate sentence comprising of the
minimum penalty within the range of prision correccional, to the maximum penalty
of prision mayor medium plus a fine of P5,000.00. It will be observed that the maximum
penalty erroneously imposed by the Sandiganbayan is ten (10) years and one (1)
day which is already within the period of prision mayor maximum.
WHEREFORE, IN VIEW OF THE FOREGOING, petitioner Rolando Santos y
Ramirez in G.R. Nos. 71523-25, petitioner Alfredo R. Fajardo, Jr. in G.R. No. 72384-86
and petitioner Jesus E. Estacio in G.R. No. 72420-22 with respect to Criminal Case No.
5949 are hereby ACQUITTED of the crimes charged for lack of proof beyond
reasonable doubt. The Decision of the Sandiganbayan as far as petitioner Marcelo S.
Desiderio in G. R. No. 72387-89 and petitioner Jesus E. Estacio, with respect to
Criminal Case Nos. 5950 and 5951 are concerned, is herby AFFIRMED subject to the
modification that, for each crime, they shall suffer the indeterminate sentence of four (4)
years, two (2) months, and one (1) day of prision correccional maximum to ten (10)
years of prision mayor medium.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
OFFICE OF THE OMBUDSMAN, G.R. No. 166116
Petitioner,
Present:

PUNO, J., Chairman,

SANDOVAL-GUTIERREZ,
- versus - CORONA,
AZCUNA, and
GARCIA, JJ.

Promulgated:
FLORENTINA SANTOS,
Respondent. March 31, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

PUNO, J:

This is a petition for review of the decision dated June 22, 2004 and resolution
dated November 23, 2004 of the Court of Appeals, which reversed the decision of
the Ombudsman finding respondent guilty of dishonesty, violation of Sec. 4 (c) of
Republic Act No. (R.A.) 6713[1] and grave misconduct, and penalizing her with
dismissal from the service with forfeiture of benefits equivalent to twelve (12)
months salary and temporary disqualification for re-employment in the government
service for one (1) year.

This case arose from a complaint filed by Estrelita L. Gumabon, Teacher

III, Lagro Elementary School, against the school Principal,
respondent Florentina A. Santos, before the Office of the Ombudsman
on September 29, 1997. The complaint alleged that respondent falsified her daily
time record as her entries therein did not match the entries of the schools security
guard in their logbook. In particular, on August 20, 1997, respondent indicated in
her daily time record that she reported for work at Lagro Elementary School the
whole day, but she actually went to Golden Child Montessori Dela Costa III Annex
at 9:00 a.m., and later at 11:30 a.m. to its Carissa II Annex. She left the premises of
said school around one in the afternoon. The complaint also pointed out that
respondent was one of the owners/incorporators of Golden Child Montessori and
held the position of President/Chairman of the Board. It was further alleged that
respondent exhibited rude and oppressive behavior not only to the teachers and
personnel of Lagro Elementary School, but also to the parents of their pupils.[2] In a
supplemental complaint dated April 1, 1998, Gumabon also charged respondent
with taking several pieces of galvanized iron sheets used in the construction and
repair of some rooms and toilets at Lagro Elementary School. Respondent
allegedly ordered one Jose Sabalilagto take the galvanized iron sheets and deliver
them to her house, and even asked school janitress Pia Amparo to
accompany Sabalilag to show him the direction to respondents house.[3]

Answering the charges, respondent explained that it was her daily routine upon
arrival at the school to inspect its outer premises before entering the school
grounds, to see if the school fence is clean and garbage-free. The security guard
only logs in the time of respondents entry into the school grounds as her arrival
time. As regards the incident on August 20, 1997, respondent stated that she sought
permission from Mrs. Paz T. Quejada, District Supervisor, School District X, to
attend an activity at Golden Child Montessori. She said that Mrs. Quejada did not
object to her request. Respondent also admitted being an owner/incorporator of
Golden Child Montessori, but argued that it did not violate any existing law. She
denied all the other allegations in the complaint. With respect to the taking of the
galvanized iron sheets, respondent explained that they were excess materials from
the construction projects in the school and they were sold to her by the project
contractor at cost.[4]

Hearings were conducted before Graft Investigation Officer Joselito P. Fangon at

the Administrative Adjudication Bureau, Office of the Ombudsman.

Gumabon appeared to identify her affidavit, as well as the affidavits of her

witnesses, and the documentary evidence consisting of the photocopy of
respondents daily time record for the months of February, March and August
1997,[5] copy of the logbook of security guard Willy Casauay,[6] copy of the memo
issued by respondent to the Principals of the various annexes of Golden Child
Montessori,[7] the letters of several parents of Lagro Elementary School pupils
complaining about the attitude of respondent towards them, and the copy of the
police receipt showing that the police recovered several galvanized iron sheets
from Jose Sabalilag.

Hermelina de Vera, former Principal of Golden Child Montessori Dela Costa III
Annex, testified that respondent attended the Linggo ng Wika celebration at their
campus in San Jose Del Monte, Bulacan on August 20, 1997. Respondent arrived
at said campus around nine in the morning.[8]

Zaida Zayde, Corporate Secretary and Principal of Golden Child

Montessori Dela Costa II Annex, testified that respondent is also one of the
incorporators of said school, and that respondent handles its finances, signs checks,
keeps bank accounts, and issues and signs memoranda for and in behalf of the
school. She also stated that she and respondent visited the Dela Costa III Annex of
Golden Child Montessori during the Linggo ng Wika celebration.[9]

Juan S. Gambol, Police Inspector, Lagro Police Station, stated that on February 13,
1998, Gumabon reported the alleged missing pieces of galvanized iron
at LagroElementary School. They recovered around 40 pieces of galvanized iron
sheets from Jose Sabalilag on February 23, 1998 and issued a receipt therefor.[10]

Jeorgia Loperez, one of the incorporators of Golden Child Montessori, testified

that respondent is the President and Chairman of the Golden Child Montessori, and
that she handles the finances, keeps the bank account, signs checks and issues
memoranda for and in behalf of the school.[11]

Fructuosa C. Gavilan, Grade School Teacher, Lagro Elementary School,

testified that respondent has the habit of scolding her even in front of other
people. She also testified to an incident where she was marked absent despite being
present, albeit late on the particular date.[12]

Sophia Amparo, Janitress at Lagro Elementary School, testified that on

February 10, 1998, she was instructed by respondent to bring to the latters house
several pieces of galvanized iron sheets.[13]

Didith Sacueza testified that she used to sell food to the teachers at
the Lagro Elementary School. She said that she had an agreement with respondent
that she would be allowed to sell food in the school but she was required to give a
certain amount to the school. Then, one day, without any notice, Sacueza was
refused entry into the school. The guard informed her that it was the Principals
order. She wrote respondent asking why she was no longer allowed to sell food in
the school, but she did not get any response.[14]

Vicente Cue, Security Guard at Lagro Elementary School, testified that

on September 5, 1999, his wife made an emergency call at the school but
respondent refused to give the call to him.[15]

Willy Casauay, also a Security Guard at Lagro Elementary School, testified

that a certain Jose Sabalilag went to the Lagro Elementary School and, upon
instruction of respondent, took several pieces of galvanized iron
sheets. Accompanied by Pia Amparo, Sabalilag brought the same to respondents
residence. The incident was noted in his logbook.[16]
Jose Sabalilag, Benedict Guantero and Erlinda Dela Rosa, on the other hand,
testified for respondent.

Jose Sabalilag stated that sometime in February 1998, he was tasked to

renovate a comfort room at Lagro Elementary School. He used about forty (40)
pieces of galvanized iron sheets for the construction. There was an excess of about
eight (8) pieces of galvanized iron sheets which respondent ordered to be taken to
her house. He also said that he removed around forty-one (41) pieces of used
galvanized iron sheets which he took to their storage (bodega), but which he also
returned to the school the next day upon instruction of a Commission on Audit
(COA) personnel. While they were unloading the returned
materials, Gumabon arrived, took some pictures, and reported the incident to the
police. Gumabon also made him sign an affidavit stating that respondent was the
one who ordered the taking of the galvanized iron sheets.[17]

Benedict Guantero, an employee of the COA, testified that respondent

sought his advice concerning the salvageable materials taken from two (2) school
toilets which underwent renovation.[18]

Erlinda Dela Rosa, former Officer-in-Charge of Golden Child Montessori,

testified that Golden Child Montessori and its branches were being managed by
their respective Principals. She also testified that the payment of rentals for the
school, the payment of salaries of teachers and financial management of the school
were undertaken by the respective administrators.[19]

On July 23, 2001, the Office of the Ombudsman rendered a decision finding
respondent guilty of dishonesty, violation of Sec. 4 (c) of R.A. 6713 and grave
misconduct. It imposed upon respondent the penalty of dismissal from service with
forfeiture of benefits equivalent to twelve (12) months salary and temporary
disqualification for re-employment in the government for one (1) year from the
finality of said decision.[20]

The Court of Appeals, however, reversed and set aside the decision of the
Ombudsman and ordered the dismissal of the complaint. It held that the findings of
the Office of the Ombudsman were not supported by substantial evidence.[21]

Hence, this petition. Petitioner raised the following arguments:

1. Contrary to the appellate court a quos [sic] ruling, the extant evidence
on record constitutes more than substantial evidence to establish
the administrative guilt of respondent.
 2. Findings of fact of an administrative agency are generally accorded
not only respect but at times finality.[22]

The petition is impressed with merit.

Administrative proceedings are governed by the substantial evidence rule. A

finding of guilt in an administrative case would have to be sustained for as long as
it is supported by substantial evidence that the respondent has committed acts
stated in the complaint or formal charge. As defined, substantial evidence is such
relevant evidence as a reasonable mind may accept as adequate to support a
conclusion.[23]
A reading of the decision of the Office of the Ombudsman and a thorough
examination of the records of this case show sufficient evidence to prove
respondents administrative liability. In its decision, the Office of the Ombudsman,
through Graft Investigation Officer Joselito P. Fangon, cites the pieces of evidence
that support its ruling. It discussed its findings thus:

Respondent FLORENTINA A. SANTOS stands administratively

charged with, among others, the falsification of her Form 48; of being
one of the Owners/Incorporators of a private school; of having oppressed
and harassed school teachers and employees; and of theft of school
property.

With respect to the first charge, the complainant adduced as

evidence the Daily Time Record (Civil Service Form No. 48) of
respondent SANTOS for the month of August 1997 (Exhibit B, p. 0191,
Records). Marked as Exhibit B-1 (supra.) is the entry for August 20,
1997 showing that respondent SANTOS reported for work
at Lagro Elementary School, QuezonCity, at 6:45 in the morning and
departed at 7:15 in the evening. Likewise adduced as evidence is the
testimony of Hermelina de Vera x x x x

On the basis of the foregoing, it has been substantially established

that respondent SANTOS actually reported for work at
the Lagro Elementary School in Quezon City. However, evidence shows
that said respondent, instead of rendering the required number of hours
of work, went to a private school (to attend a school function) in San
Jose Del Monte, Bulacan. It is therefore clear that the respondent
deliberately made it appear that she reported for work on 20 August
1997, when in truth, she attended a private function and was physically
absent from school. The respondents act of punching her Daily Time
Record constitutes Dishonesty for making it appear that she was present
for work when in fact she was absent therefrom.

As against these, the respondent failed to present any evidence to

counter the same, and as such, her guilt has been adequately shown.

As to the charge against respondent of being an

Owner/Incorporator of the Golden Child Montessori School, we find the
evidence to be inadequate to establish any administrative liability.

Although the evidence tend to prove that the respondent is an

Owner/Incorporator of the said school, still, the complainant failed to
show any conflict of interest on the part of the respondent. Moreover, no
evidence was presented to show that being an Owner/Incorporator of a
private school amounts to a violation of any law. Verily, the charge
against respondent on this score should be dismissed.

On the charge of Oppression/Harassment, witness VICENTE

CUE testified that on 8 September 1997, his wife made an emergency
call at
Lagro Elementary School where he works as a Security
Guard. However, despite his presence thereat,
respondent SANTOS refused to give the call to him. On cross-
examination, the testimony of witness CUE was not rebutted by any
evidence.

Hence, it has been fairly established that the respondent

committed an oppressive act against Vicente Cue. Her actuations
definitely runs [sic] counter to the established norms of conduct and
ethical standards for public officials who, must act with justice and shall
not discriminate against anyone. Moreover, her action violates the
standard of personal conduct, which mandates all civil servants to
respect the rights of others, and to refrain from doing acts contrary to
good morals and customs. Accordingly, respondent SANTOS appears to
be liable for violation of Republic Act No. 6713.

The respondent was also accused of having misappropriated

government property. On this point, Sophia Amparo,
janitress, Lagro Elementary School, testified x x x x

It is clear from the foregoing that at the instance of the

respondent, several galvanized iron sheets which appear to be the
property of the government were taken out of LagroElementary
School and delivered to the residence of the respondent.

The respondent then presented her witnesses, namely: JOSE

SABALILAG and BENEDICT GUANTERO, to rebut the allegation of
theft, however, the same proved insufficient to counter the evidence
against her.

xxx

It is therefore clear from the testimony of JOSE SABALILAG

that at least eight (8) galvanized iron sheets (which were purportedly
new) were taken by the respondent and which remain unaccounted
for. This bolsters the finding that the respondent was responsible for
having taken several galvanized iron sheets which were government
property.

With respect to BENEDICT GUANTERO, a witness for the

respondent, the basis for his testimony, which is a purported Affidavit
was not formally offered as evidence in the present case. Hence, the
allegations therein can not be possibly considered in the resolution of the
instant case.

All told, it has been substantially established that the respondent

took government property for her own personal benefit which constitutes
Grave Misconduct, and for which the respondent may be held
liable. (citations omitted)[24]
 As a general rule, factual findings of administrative bodies are accorded
great respect by this Court. We do not see any reason to depart from this policy,
except as regards respondents liability for holding the position of
President/Chairman of the Board of Golden Child Montessori and managing the
affairs of said school. Contrary to the Ombudsmans ruling that such act does not
violate any provision of law, Section 7 (b) (2) of R.A. 6713 prohibits all public
officials and employees from engaging in the private practice of their profession,
thus:
SECTION 7. Prohibited Acts and Transactions. In addition to
acts and omissions of public officials and employees now prescribed in
the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and employee and
are hereby declared to be unlawful:

xxx

(b) Outside employment and other activities related thereto.

Public officials and employees during their incumbency shall not:

(1) Own, control, manage or accept employment as officer,

employee, consultant, counsel, broker, agent, trustee or nominee in any
private enterprise regulated, supervised or licensed by their office unless
expressly allowed by law;

(2) Engage in the private practice of their profession unless

authorized by the Constitution or law, provided, that such practice
will not conflict or tend to conflict with their official functions; or

(3) Recommend any person to any position in a private enterprise

which has a regular or pending official transaction with their office.

These prohibitions shall continue to apply for a period of one (1)

year after resignation, retirement, or separation from public office,
except in the case of subparagraph (b) (2) above, but the professional
concerned cannot practice his profession in connection with any matter
before the office he used to be with, in which case the one-year
prohibition shall likewise apply.

The rule is that all public officers and employees are prohibited from
engaging in the private practice of their profession. The exception is when such
private practice is authorized by the Constitution or law. However, even if it is
allowed by law or the Constitution, private practice of profession is still proscribed
when such practice will conflict or tends to conflict with the official functions of
the employee concerned. Indeed, public servants are expected to devote their
undivided attention to their public duties, to give the tax payers the competent and
excellent service that they deserve. In fact, Section 4 of the Code of Conduct and
Ethical Standards for Public Officials and Employees enjoins said officials and
employees to always uphold public interest over and above personal interest. By
actively participating in the management of Golden Child Montessori, a private
school, while serving as Principal of Lagro Elementary School, a government
school, respondent has transgressed the provisions of Section 7 (b) (2) of R.A.
6713.
 We affirm all the other findings of the Office of the Ombudsman. The
testimonial and documentary evidence contained in the records constitutes
substantial evidence to prove the administrative liability of respondent, as
discussed by the Ombudsman.

We now go to the penalty. Section 11 of R.A. 6713 provides that violations

of Section 7 of said law shall be punishable with imprisonment not exceeding five
(5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the
discretion of the court, disqualification to hold public office. Hence, we deem it
appropriate to impose a fine of five thousand pesos (P5,000) upon respondent in
addition to the penalty imposed upon her by the Office of the Ombudsman.

IN VIEW WHEREOF, the petition is GRANTED. The assailed decision

and resolution of the Court of Appeals are SET ASIDE. The decision of the Office
of the Ombudsman in OMB-ADM-0-98-0307 dated July 23,
2001 is REINSTATED with MODIFICATION that an additional FINE of FIVE
THOUSAND PESOS (P5,000.00)is imposed upon respondent.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 109244 December 29, 1995

SPOUSES JUAN and FILOMENA PULIDO and SPOUSES ALBERTO and NORMA GLORIA, petitioners,
vs.
COURT OF APPEALS and BIENVENIDO AGAPITO, respondents.

BELLOSILLO, J.:

Bienvenido Agapito owned a 230-square meter parcel of unregistered residential land in Indang, Cavite, which he
mortgaged with the Rural Bank of Cavite City (RBCC) to secure a loan. On 23 May 1973, upon his failure on maturity
1

to pay the loan, the mortgage was foreclosed and sold at public auction to RBCC as the highest bidder. He failed to
redeem his property within the one-year reglementary period despite repeated extensions granted him. On 26 July
1980 RBCC through its President-Manager Leonarda G. Alegre sold the property together with its improvements to
spouses Juan and Filomena Pulido who on 1 September 1980 sold the same in turn to spouses Alberto and Norma
2

Gloria. 3

Contending that he was not notified of the foreclosure sale Bienvenido Agapito filed a complaint in the Regional Trial
Court of Cavite against RBCC, the spouses Juan and Filomena Pulido and the spouses Alberto and Norma
Gloria seeking the annulment of the extrajudicial foreclosure and sale with damages, and praying that he be allowed
4

to redeem the property by paying with interest his mortgage debt. He also claimed that the public auction sale
conducted by the Provincial Sheriff was null and void for non-compliance with the posting of notice requirement under
P.D. No. 122. To support his claim Agapito presented Valeriano Fajardo, then Postmaster of Indang, Cavite, who
testified that he was not aware of any notice of foreclosure sale posted in the municipal building.

On 5 August 1982 the court on motion of plaintiff allowed the filing of a second amended complaint to include the
value of certain personal properties estimated at P75,000.00 which were allegedly taken by the Pulido spouses and
then by the Gloria spouses when they respectively took possession of the foreclosed property.

The trial court sustained the validity of the auction sale and the subsequent transfer to the Pulidos and then to the
Glorias holding that the requirements for the validity of the questioned foreclosure proceedings had been complied
5

with by the Provincial Sheriff and RBCC.

His motion for reconsideration having been denied, Agapito appealed to the Court of Appeals which reversed the
6

court a quo and holding that no evidence existed to show that the notice of foreclosure sale was posted as required
by law. The appellate court observed that the "Notice of Extrajudicial Sale of Mortgaged Properties" presented by
RBCC did not prove that said notice, and at least two other copies thereof, had been actually posted, and that the
"Minutes of Sheriff Public Auction Sale" could not be considered as evidence since it was not formally offered in
7

court. Thus finding no clear and preponderant evidence to show compliance with the requisite posting of notice, the
Court of Appeals declared the foreclosure sale as null and void, labeling the non-compliance as a jurisdictional defect
which invalidated the sale. Consequently, it declared the deeds of sale of 26 July 1980 and 1 September 1980 void 8

and without force and effect, ordered the Pulido spouses and the Gloria spouses to pay their respective vendors the
amount corresponding to the purchase price with legal interest from the date of finality of the decision. The appellate
court also granted Agapito a non-extendible period of sixty (60) days from the finality of the decision within which to
exercise the right of repurchase by paying RBCC the amount of the mortgage indebtedness with 12% interest. 9

Hence this recourse by the spouses Juan and Filomena Pulido and the spouses Alberto and Norma Gloria. RBCC did
not appeal.

We deny the petition and affirm the Court of Appeals.

Petitioners contend that respondent Court of Appeals erred when it concluded that the requirement of posting had not
been complied with merely on the basis that the evidence presented by them, as defendants in the trial court, to show
compliance was not sufficient. They insist that Agapito, as the plaintiff alleging non-compliance, had the burden of
proof and that it was on the sufficiency of the evidence presented by him that the merits ought to have been decided:

While it may be true that the party alleging non-compliance with the requisite publication has the burden of proof, still
negative allegations need not be proved even if essential to one's cause of action or defense if they constitute a
denial of the existence of a document the custody of which belongs to the other party. 10

Section 5, R.A. No. 720, as amended by Sec. 2 of P.D. No. 122, specifically requires that proof of the required
posting shall consist of the affidavit of the sheriff or officer conducting the foreclosure sale which shall be attached
with the records of the case. Hence, it is a simple matter for RBCC, petitioners' predecessor-in-interest, to rebut the
11

allegation of non-compliance by producing the required proof of posting, i.e., the affidavit of the sheriff who conducted
the sale. But no such affidavit was presented. Neither was there any equally competent and convincing proof offered
to show compliance. As respondent Court of Appeals correctly concluded, the "Notice of Extrajudicial Sale of
Mortgaged Properties" does not prove that said notice was actually posted as required by law, while the "Minutes of
Sheriff Public Auction Sale" cannot be appreciated in favor of petitioners because it was not presented, much less
formally offered as evidence.

It is axiomatic that a decision of a lower court cannot be reversed for its failure to consider evidence which was not
even presented by the parties. Neither was the sheriff who conducted the sale presented as a witness, no reason
12

having been given for such non-presentation. Hence, since the required proof of posting was not presented and no
other competent and convincing proof was offered in its stead, petitioners' reliance on the presumption of regularity in
the performance of official duties falls in the face of a serious imputation on non-compliance. The presumption of
compliance with official duty is rebutted by failure to present proof of posting.13

While the trial court concluded that the requirements for the validity of the foreclosure proceedings had been
complied with, still we cannot apply the rule that factual findings of the trial court are conclusive on us since a reading
alone of the decision of the trial court shows that its finding is not factual but merely a conclusion of law with nothing
to lean on.

It is further argued by petitioners that even assuming that the requirements for a valid extrajudicial foreclosure of
mortgage have not been met the title that passed on to petitioners was cured of any and all defects since they merely
relied on the registered deeds of sale of their respective transferors (RBCC in the case of spouses Pulido and the
latter as regards the spouses Gloria) which appeared in order and was not in any way suspicious. Plainly, petitioners
claim they are entitled to protection under the law as buyers in good faith and for value.

This defense is unavailing. It must be remembered that the property involved is an unregistered land. When RBCC
acquired it at foreclosure it registered its title under Act No. 3344 which specifically provides that "[a]ny registration
14

made . . . shall be understood to be without prejudice to a third party with a better right." In other words, registration
15

under said Act, unlike under Act No. 496, does not afford full protection as it must yield to a prior and valid title,
16

even if unregistered. Therefore, even if petitioners relied on the registered title of their predecessor-in-interest
(RBCC) they cannot capitalize on their being innocent purchasers for value and in good faith over and above
Agapito's valid and prior right to have his property foreclosed in accordance with law. The rule that the purchaser is
not required to explore further than what the record in the Registry indicates on its face in quest of any hidden defect
or inchoate right which may subsequently defeat his right thereto refers only to properties registered under the
Torrens system, not to those under Act No. 3344. Therefore, we agree with respondent court when it declared as
17

null and void the deeds of sale of 26 July 1980 and 1 September 1980 evidencing the transfer of the controverted
property to the Pulido spouses and then to the Gloria spouses. However, we cannot logically agree with the portion of
the appealed decision directing petitioners to pay their vendors the amount corresponding to the purchase price with
legal interest from the date of finality of the decision; rather, it should be the other way around. The Pulidos should
18

return to the Glorias P25,900.00 representing the amount which the latter paid by virtue of the deed of sale dated 1
September 1980. The Pulido spouses, in turn, can demand from RBCC the P25,900.00 which they paid to the latter
when they purchased the foreclosed property on 26 July 1980.

Considering that private respondent Bienvenido Agapito had been given by RBCC several opportunities to buy back
his property before foreclosure but which he merely ignored, we delete the portion of the decision appealed from
awarding him an inextendible period of sixty (60) days within which to repurchase the controverted property.

WHEREFORE, the decision of the Court of Appeals of 24 February 1993 declaring the extrajudicial foreclosure of
mortgage and auction sale held on 23 May 1973 void ab initio for failure to comply with Sec. 5, R.A. No. 720, as
amended by Sec. 2, P.D. No. 122, is AFFIRMED without prejudice to another foreclosure sale conducted faithfully in
compliance with the law.

Accordingly, the spouses Alberto and Norma Gloria, the current possessors of the disputed property, are directed to
return possession thereof to the mortgage creditor, the Rural Bank of Cavite City, and the latter to return to the
spouses Juan and Filomena Pulido the amount of P25,900.00 representing the purchase price they paid by virtue of
the deed of sale of 26 July 1980 which is declared null and void, with legal interest from the date of finality of this
decision. The spouses Juan and Filomena Pulido, in turn, are also directed to return to petitioner spouses Alberto and
Norma Gloria the amount of P25,900.00 which the latter paid to them by virtue of the Deed of Sale of 1 September
1980 which is likewise declared void ab initio, with legal interest from the finality of this decision. To this extent the
judgment appealed from is modified.

SO ORDERED.

Padilla, Kapunan and Hermosisima, Jr., JJ., concur.

Separate Opinions

DAVIDE, JR., J, separate opinion:

Since we are affirming the judgment of the Court of Appeals declaring void ab initio the extrajudicial foreclosure sale
of 23 May 1973 for non-compliance with Section 5, R. A. No. 720, as amended by Section 2 of P.D. No. 122, it would
necessarily follow that the mortgagee bank never became the lawful owner, as the highest bidder, of the lot in
question. It was, therefore, error for the Court of Appeals to grant Bienvenido Agapito a non-extendible period of 60
days from the finality of the decision within which to exercise the right to repurchase. A "repurchase" presupposes a
valid sale, which is inconsistent with the respondent Court's ruling declaring void ab initio the foreclosure sale.

Accordingly, this Court should not, as it does in the majority opinion, direct "the spouses Alberto and Norma Gloria,
the current possessors of the disputed property, . . . to return possession thereof to the mortgage creditor, the Rural
Bank of Cavite City." I submit that the possession must be directly returned by the said spouses to the mortgagor,
private respondent Agapito.

Also, following the rule laid down in Eastern Shipping Lines, Inc. vs. Court of Appeals (234 SCRA 78 [1994]), the
interest which the mortgagee bank, as vendor, shall pay to the spouses Juan and Filomena Pulido on the purchase
price of P25,900.00, as well as the interest which the latter shall pay to their vendees, the spouses Alberto and
Norma Gloria, on the purchase price of P25,900.00 should be the legal rate of six percent (6%) per annum from the
rendition of the judgment of the Court of Appeals until the finality of the judgment of this Court in this case and twelve
percent (12%) per annum from such finality until the payments of P25,900.00 by the mortgagee bank to the Pulidos
and of P25,900.00 by the Pulidos to the Glorias.

Separate Opinions

DAVIDE, JR., J, separate opinion:

Since we are affirming the judgment of the Court of Appeals declaring void ab initio the extrajudicial foreclosure sale
of 23 May 1973 for non-compliance with Section 5, R. A. No. 720, as amended by Section 2 of P.D. No. 122, it would
necessarily follow that the mortgagee bank never became the lawful owner, as the highest bidder, of the lot in
question. It was, therefore, error for the Court of Appeals to grant Bienvenido Agapito a non-extendible period of 60
days from the finality of the decision within which to exercise the right to repurchase. A "repurchase" presupposes a
valid sale, which is inconsistent with the respondent Court's ruling declaring void ab initio the foreclosure sale.

Accordingly, this Court should not, as it does in the majority opinion, direct "the spouses Alberto and Norma Gloria,
the current possessors of the disputed property, . . . to return possession thereof to the mortgage creditor, the Rural
Bank of Cavite City." I submit that the possession must be directly returned by the said spouses to the mortgagor,
private respondent Agapito.

Also, following the rule laid down in Eastern Shipping Lines, Inc. vs. Court of Appeals (234 SCRA 78 [1994]), the
interest which the mortgagee bank, as vendor, shall pay to the spouses Juan and Filomena Pulido on the purchase
price of P25,900.00, as well as the interest which the latter shall pay to their vendees, the spouses Alberto and
Norma Gloria, on the purchase price of P25,900.00 should be the legal rate of six percent (6%) per annum from the
rendition of the judgment of the Court of Appeals until the finality of the judgment of this Court in this case and twelve
percent (12%) per annum from such finality until the payments of P25,900.00 by the mortgagee bank to the Pulidos
and of P25,900.00 by the Pulidos to the Glorias.

SECOND DIVISION

PHILIPPINE SAVINGS BANK, G.R. No. 170241

Petitioner,
Present:
CARPIO, J., Chairperson,
BRION,
- versus - DEL CASTILLO,
ABAD, and
PEREZ, JJ.

SPOUSES DIONISIO GERONIMO Promulgated:

and CARIDAD GERONIMO,
Respondents. April 19, 2010
x-----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This petition for review[1] assails the 30 August 2005 Decision[2] and 3 November
2005 Resolution[3] of the Court of Appeals in CA-G.R. CV No. 66672. The Court
of Appeals reversed the decision of Branch 121 of the Regional Trial Court of
Caloocan City, National Capital Region (trial court) by declaring void the
questioned extrajudicial foreclosure of real estate mortgage for non-compliance
with the statutory requirement of publication of the notice of sale.

The Facts

On 9 February 1995, respondents Spouses Dionisio and Caridad Geronimo

(respondents) obtained a loan from petitioner Philippine Savings Bank (petitioner)
in the amount of P3,082,000, secured by a mortgage on respondents land situated
in Barrio Talipapa, Caloocan City and covered by Transfer Certificate of Title No.
C-50575.[4] Respondents defaulted on their loan, prompting petitioner to initiate the
extra-judicial foreclosure of the real estate mortgage. At the auction sale conducted
on 29 March 1996, the mortgaged property was sold to petitioner,[5] being the
highest bidder, for P3,000,000. Consequently, a Certificate of Sale was issued in
favor of petitioner.[6]

Claiming that the extrajudicial foreclosure was void for non-compliance with the
law, particularly the publication requirement, respondents filed with the trial court
a complaint for the annulment of the extrajudicial foreclosure.[7]

The trial court sustained the validity of the extrajudicial foreclosure, and disposed
of the case as follows:

WHEREFORE, premises considered, the instant Complaint for

Annulment of Foreclosure of Mortgage and Damages is hereby
DISMISSED for lack of merit.
 SO ORDERED.[8]

On appeal, the Court of Appeals held:

WHEREFORE, the assailed decision dated 26 November 1999 of the

Regional Trial Court of Caloocan City is REVERSED and SET
ASIDE. The Extrajudicial Foreclosure of Mortgage conducted on 29
March 1996 is declared NULL and VOID.

SO ORDERED.[9]
The Court of Appeals denied petitioners motion for reconsideration.

Hence, this petition.

The Ruling of the Trial Court

The trial court held that personal notice on the mortgagor is not required under Act
No. 3135. All that is required is the posting of the notices of sale for not less than
20 days in at least three public places in the municipality or city where the property
is situated, and publication once a week for at least three consecutive weeks in a
newspaper of general circulation in the municipality or city, if the property is
worth more than four hundred pesos.

The trial court further ruled there was compliance with the statutory publication
requirement. Since the affidavit of publication was excluded as petitioners
evidence, the trial court relied instead on the positive testimony of Deputy Sheriff
Alberto Castillo, that he caused the publication of the Notice of Sale, in holding
there was publication of the notice of sale in a newspaper of general circulation. In
relation to this, the trial court cited the presumption of regularity in the
performance of official duty. The trial court found that respondents, as plaintiffs,
failed to discharge their burden of proving petitioners alleged non-compliance with
the requisite publication. The trial court stated that the testimony of respondents
witness, a newsstand owner, that he has never sold Ang Pinoy newspaper can never
lead to the conclusion that such publication does not exist.

The Ruling of the Court of Appeals

The Court of Appeals reversed the ruling of the trial court.

The Court of Appeals found no sufficient evidence to prove that Ang Pinoy is a
newspaper of general circulation in Caloocan City. In a Resolution dated 2
February 2005, the Court of Appeals required the then Executive Judge of the
Regional Trial Court of Caloocan City to inform the appellate court of the
following facts:
 1. If Ang Pinoy newspaper is a newspaper of general circulation
particularly for the years 1995 and 1996; and
2. If there was compliance with Sec. 2 of P.D. No. 1079 which
provides:
The executive judge of the court of first instance shall designate a regular
working day and a definite time each week during which the said
judicial notices or advertisements shall be distributed personally
by him for publication to qualified newspapers or periodicals x x
x, which distribution shall be done by raffle.[10]

Executive Judge Victoria Isabel A. Paredes (Executive Judge Paredes) complied

with the directive by stating that:

a) Ang Pinoy newspaper is not an accredited periodical in Caloocan

City. Hence, we are unable to categorically state whether it is a
newspaper of general circulation at present or for the years 1995
and 1996 (Certification marked as Annex A)
b) Sec. 2, P.D. No. 1079 is being observed and complied with in that the
raffle of judicial notices for publication, is a permanent agenda
item in the regular raffle with the RTC, Caloocan City, holds
every Monday at 2 oclock in the afternoon at the courtroom of
RTC, Branch 124 (Certification marked as Annex B); and

c) We have no knowledge on whether Ang Pinoy was included in

the raffles conducted in 1995 and 1996, as we do not have the case
record where the information may be verified.[11]

The Court of Appeals concluded that, based on the compliance of Executive Judge
Paredes, Ang Pinoy is not a newspaper of general circulation in Caloocan
City. Therefore, the extrajudicial foreclosure is void for non-compliance with the
requirement of the publication of the notice of sale in a newspaper of general
circulation.

The Issue

Basically, the issue in this case is whether the extra-judicial foreclosure is void for
non-compliance with the publication requirement under Act No. 3135.

The Ruling of the Court

The petition lacks merit.

Section 3 of Act No. 3135[12] reads:

SECTION 3. Notice shall be given by posting notices of the sale for not
less than twenty days in at least three public places of the municipality or
city where the property is situated, and if such property is worth more
than four hundred pesos, such notice shall also be published once a
week for at least three consecutive weeks in a newspaper
of general circulation in the municipality or city. (Emphasis supplied)
Petitioner claims that it complied with the above provision in foreclosing
extrajudicially the subject real estate mortgage. To buttress its claim, petitioner
presented the testimony of Deputy Sheriff Alberto Castillo of the trial court, the
pertinent portion of which states:
ATTY. DAVIS:
Do you remember having come across a certain property owned by
spouses Geronimo covered by TCT No. 50576 of the Register of
Deeds of Caloocan City?

xxxx

A. Yes, sir.

ATTY. DAVIS:
Q. In what connection?
A. In connection with the extra judicial foreclosure filed by the PS Bank,
sir.

xxxx

Q. When this was assigned to you what action did you take thereon?
A. I prepared the notice of sale having published in the newspaper which
the executive judge awarded it. Sent notice to the said parties and
posted it to the three conspicuous places of Caloocan City, sir.

Q. You mentioned about your issuance of Notice of Sale I am referring

you now to the document previously marked as Exhibit 6. What
relation is this if any to the one you have mentioned?
A. This is the Notice of Sale I have prepared, sir.

Q. Now you also mentioned that you have caused the publication of this
Notice of Sheriffs Sale to a newspaper of general circulation, do
you remember what newspaper it was?
A. Ang Pinoy, sir.

Q. How come that this newspaper was selected for purposes of

publication?
A. It was the executive judge who awarded that publication, sir.

Q. How do you know particularly that this notice was published in the
newspaper?
A. That during the auction sale the mortgagee bank presented affidavit of
publication, sir.[13]

On the other hand, respondents dispute the existence of the publication of the
notice of sale. Assuming that the notice of sale was published, respondents
contend that Ang Pinoy, where it was published, is not a newspaper of general
circulation. To bolster their claim of non-publication, respondents offered the
testimony of Danilo Magistrado, a newsstand owner, which pertinently states:

ATTY. SAYA:
 Do you know by chance the Pinoy Newspaper?

ATTY. DAVIS:
No basis.

COURT:
Objection overruled. Witness may answer.

A. None, sir. I do not sell Pinoy Newspaper, sir.

ATTY. SAYA:
Why do you say that you do not know Pinoy Newspaper?
A. From the time I sold newspapers, sir, I have not seen Pinoy
Newspaper.

ATTY. SAYA:
That would be all, your Honor.

Before resolving the principal issue, we must point out the requirement of
accreditation was imposed by the Court only in 2001, through A.M. No. 01-1-07-
SC or the Guidelines in the Accreditation of Newspapers and Periodicals Seeking
to Publish Judicial and Legal Notices and Other Similar Announcements and in
the Raffle Thereof.[14] The present case involves an extrajudicial foreclosure
conducted in 1996; thus, there were no such guidelines in effect during the
questioned foreclosure. At any rate, the accreditation by the Executive Judge is not
decisive of whether a newspaper is of general circulation.[15]

It is settled that for the purpose of extrajudicial foreclosure of mortgage, the party
alleging non-compliance with the requisite publication has the burden of proving
the same.[16]In this case, respondents presented the testimony of a newsstand owner
to prove that Ang Pinoy is not a newspaper of general circulation. However, this
particular evidence is unreliable, as the same witness testified that he sells
newspapers in Quezon City, not in Caloocan City, and that he is unaware of Ang
Pinoy newspaper simply because he is not selling the same and he had not heard of
it. His testimony states:

Q. Where is this place that you traditionally or usually sell newspaper?

A. Corner of A. Bonifacio and 6th Avenue.

Q. This is in Quezon City?

A. Yes, sir.

Q. Not in Caloocan?
A. In Quezon City, sir.

xxxx

COURT: Clarificatory question.

Q. You said that there is no Pinoy magazine simply because you are not
selling Pinoy magazine?
A. Yes, your Honor.
 Q. But you are not certain that there is really no Pinoy magazine?

COURT:
But have you heard about Pinoy magazine or Pinoy newspaper?
A. I have not heard, your Honor.[17]

Notwithstanding, petitioner could have easily produced the affidavit of publication

and other competent evidence (such as the published notices) to refute respondents
claim of lack of publication of the notice of sale. In Spouses Pulido v. Court of
Appeals,[18] the Court held:

While it may be true that the party alleging non-compliance with the
requisite publication has the burden of proof, still negative allegations
need not be proved even if essential to ones cause of action or defense if
they constitute a denial of the existence of a document the custody of
which belongs to the other party.

In relation to the evidentiary weight of the affidavit of publication, the Court ruled
in China Banking Corporation v. Spouses Martir[19] that the affidavit of
publication executed by the account executive of the newspaper is prima
facie proof that the newspaper is generally circulated in the place where the
properties are located.[20]

In the present case, the Affidavit of Publication or Exhibit 8, although formally

offered by petitioner, was excluded by the trial court for being
hearsay.[21] Petitioner never challenged the exclusion of the affidavit of
publication. Instead, petitioner relies solely on the testimony of Deputy Sheriff
Alberto Castillo to prove compliance with the publication requirement under
Section 3 of Act No. 3135. However, there is nothing in such testimony to clearly
and convincingly prove that petitioner complied with the mandatory requirement
of publication. When Sheriff Castillo was asked how he knew that the notice of
sale was published, he simply replied that during the auction sale the mortgagee
bank presented the affidavit of publication.[22] Evidently, such an answer does not
suffice to establish petitioners claim of compliance with the statutory requirement
of publication. On the contrary, Sheriff Castillos testimony reveals that he had no
personal knowledge of the actual publication of the notice of sale, much less the
extent of the circulation of Ang Pinoy.

Moreover, the Court notes that Ang Pinoy is a newspaper of general circulation
printed and published in Manila, not in Caloocan City where the mortgaged
property is located, as indicated in the excluded Affidavit of Publication. This is
contrary to the requirement under Section 3 of Act No. 3135 pertaining to the
publication of the notice of sale in a newspaper of general circulation in the city
where the property is situated. Hence, even if the Affidavit of Publication was
admitted as part of petitioners evidence, it would not support petitioners case as it
does not clearly prove petitioners compliance with the publication requirement.
Petitioners invocation of the presumption of regularity in the performance of
official duty on the part of Sheriff Castillo is misplaced. While posting the notice
of sale is part of a sheriffs official functions,[23] the actual publication of the notice
of sale cannot be considered as such, since this concerns the publishers
business. Simply put, the sheriff is incompetent to prove that the notice of sale was
actually published in a newspaper of general circulation.
The Court further notes that the Notice of Extra-Judicial Sale,[24] prepared and
posted by Sheriff Castillo, does not indicate the newspaper where such notice
would be published.The space provided where the name of the newspaper should
be was left blank, with only the dates of publication clearly written. This omission
raises serious doubts as to whether there was indeed publication of the notice of
sale.

Once again, the Court stresses the importance of the notice requirement, as
enunciated in Metropolitan Bank and Trust Company, Inc. v. Peafiel,[25] thus:

The object of a notice of sale is to inform the public of the nature and
condition of the property to be sold, and of the time, place and terms of
the sale. Notices are given for the purpose of securing bidders and to
prevent a sacrifice [sale] of the property. The goal of the notice
requirement is to achieve a reasonably wide publicity of the auction sale.
This is why publication in a newspaper of general circulation is required.
The Court has previously taken judicial notice of the far-reaching effects
of publishing the notice of sale in a newspaper of general circulation.
In addition, the Court reminds mortgagees of their duty to comply faithfully with
the statutory requirements of foreclosure. In Metropolitan Bank v. Wong,[26] the
Court declared:

While the law recognizes the right of a bank to foreclose a mortgage

upon the mortgagors failure to pay his obligation, it is imperative that
such right be exercised according to its clear mandate. Each and every
requirement of the law must be complied with, lest, the valid exercise of
the right would end. It must be remembered that the exercise of a right
ends when the right disappears, and it disappears when it is abused
especially to the prejudice of others.

In sum, petitioner failed to establish its compliance with the publication

requirement under Section 3 of Act No. 3135. Consequently, the questioned
extrajudicial foreclosure of real estate mortgage and sale are void.[27]

WHEREFORE, we DENY the petition. We AFFIRM the 30 August 2005

Decision and 3 November 2005 Resolution of the Court of Appeals in CA-G.R.
CV No. 66672.

SO ORDERED.
FIRST DIVISION
 [G.R. Nos. 146284-86. January 20, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. ABDUL MACALABA y

DIGAYON, appellant.

DECISION
DAVIDE, JR., C.J.:

Appellant Abdul Macalaba y Digayon (hereafter ABDUL) was charged

before the Regional Trial Court of San Pedro, Laguna, with violations of the
Presidential Decree No. 1866 ; Article 168 of the Revised Penal Code ; and
[1] [2]

Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No.
6425), as amended, in Criminal Cases Nos. 1236, 1237 and 1238,
respectively. The accusatory portions of the informations in these cases read
as follows:

Criminal Case No. 1236

That on or about April 12, 1999, in the Municipality of San Pedro, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused
without the required permit/license from the proper authorities, did then and there
willfully, unlawfully, and feloniously have in his possession, custody and control one
(1) caliber .45 pistol with Serial No. 909904, and one (1) magazine with five (5) live
ammunition thereof.

CONTRARY TO LAW. [3]

Criminal Case No. 1237

That on or about April 12, 1999, in the Municipality of San Pedro, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court, said accused
did then and there willfully, unlawfully and feloniously have in his possession,
custody and control two (2) ONE THOUSAND PESOS bill with Serial Numbers BG
021165 and BG 995998, knowing the same to be forged or otherwise falsified with
the manifest intention of using such falsified or forged instruments.

CONTRARY TO LAW. [4]

Criminal Case No. 1238

That on or about April 12, 1999, in the Municipality of San Pedro, Province of
Laguna, Philippines and within the jurisdiction of this Honorable Court, the said
accused without being authorized by law, did then and there willfully, unlawfully and
feloniously have in his possession, custody and control one (1) self-sealing transparent
plastic bag of methamphetamine hydrochloride shabu weighing 226.67 grams (3
medium sized transparent plastic bags and 1 big heat-sealed transparent plastic bag).

CONTRARY TO LAW. [5]

The three cases were consolidated and raffled to Branch 31 of said

court. Upon his arraignment, ABDUL entered in each case a plea of not guilty.
At the trial, the prosecution presented as witnesses SPO1 Generoso
Pandez, PO3 Ernani Mendez, Police Inspector Anacleta Cultura and Police
Inspector Lorna Tria. ABDUL was the sole witness for the defense.
 SPO1 Pandez, a PNP member of the Laguna Criminal Investigation
Detection Group (CIDG), testified that on 12 April 1999, at 5:15 p.m., Major R
Win Pagkalinawan ordered the search of ABDUL, alias Boy Muslim, based on
a verified information that the latter was driving a carnapped Mitsubishi olive
green car with Plate No. UPV 511 and was a drug-pusher in San Pedro,
Laguna. Two teams were formed for the search. The first was headed by
Major Pagkalinawan, with SPO4 Aberion and five others as members; and the
second was led by Capt. Percival Rumbaoa, with SPO1 Pandez and PO3
Mendez as members. [6]

Between 6:30 p.m. and 7:00 p.m., the two groups proceeded to Barangay
Nueva, San Pedro, Laguna, on board a car and a van. They went to ABDULs
apartment where he was reportedly selling shabu, but they learned that
ABDUL had already left. While looking for ABDUL, they saw the suspected
carnapped car somewhere at Pacita Complex I, San Pedro, Laguna, going
towards the Poblacion. When it stopped due to the red traffic light, the CIDG
officers alighted from their vehicles. Capt. Rumbaoa positioned himself at the
passenger side of the suspected carnapped car, while Major Pagkalinawan
stood in front of the car. SPO1 Pandez, with PO3 Mendez beside him, went
straight to the driver and knocked at the drivers window. ABDUL, who was
driving the car, lowered the glass window. SPO1 Pandez introduced himself
as a member of the Laguna CIDG and asked ABDUL to turn on the light and
show them the cars certificate of registration.
[7]

When the light was already on, SPO1 Pandez saw a black Norinco .45
caliber gun inside an open black clutch/belt bag placed on the right side of
[8]

the drivers seat near the gear. He asked ABDUL for the supporting papers of
the gun, apart from the cars certificate of registration, but the latter failed to
show them any. When ABDUL opened the zipper of the clutch/belt bag, the
[9]

CIDG officers saw inside it four plastic sachets of what appeared to be

shabu. They likewise found a self-sealing plastic bag which contained the
following items: two fake P1,000 bills, a list of names of persons, a magazine
and five ammunitions for a .45 caliber gun. They confiscated the gun, the
shabu, and the fake P1,000 bills and thereafter brought ABDUL to the CIDG
office.
[10]

PO3 Mendez substantially corroborated the testimony of SPO1 Pandez. [11]

The two P1,000 bills were found to be counterfeit after an examination

conducted by Police Inspector Anacleta Cultura, a document examiner at
[12]

Camp Vicente Lim, Calamba, Laguna. The white crystalline substance

contained in the four small plastic bags was subjected to physical and
laboratory examination conducted by Police Inspector Lorna Tria, a Forensic
Chemist at the PNP Crime Laboratory, Region IV, Camp Vicente Lim. Her
findings were as follows: (a) the three small plastic sachets weighed 29.46
[13]

grams, while the big plastic sachet weighed 197.21 grams, or a total weight of
226.67 grams; (b) representative samples taken from the specimens thereof
were positive for methamphetamine hydrochloride or shabu, a regulated drug;
and (c) the improvised tooter and the rolled aluminum foil with residue found
in the self-sealing plastic bag were also positive of the presence
for shabu residue.
As expected, ABDUL had a different story to tell. He testified that on 12
April 1999, between 6:50 and 7:00 p.m., he was driving a borrowed Mitsubishi
Galant Car with Plate No. UPV 501 somewhere in San Pedro, Laguna. With
him was Rose, his live-in partner, whom he fetched from Angeles City,
Pampanga. He had borrowed the car from his friend Ferdinand Navares, who
instructed him to return it in front of the latters store at San Pedro Public
Market. [14]

ABDUL was about to park the car when a man knocked hard on the glass
window on the drivers side of the car and pointed at the former a .45 caliber
pistol. Another one who was armed with an armalite rifle positioned himself in
front of the car, while the third one positioned himself near the window on the
passenger side and pointed a gun at his live-in partner Rose.ABDUL then
lowered the cars window. The man near him opened the door, held him, and
told him to alight. When the man asked him whether he was Boy Muslim, he
answered in the negative. The same man opened the back door of the car
and boarded at the back seat. Rose remained seated at the front passenger
seat.[15]

The other men likewise boarded the car, which was thereafter driven by
one of them. While inside the car, they saw a .45 caliber pistol at the edge of
the drivers seat. They asked him whether he had a license. He showed his
gun license and permit to carry. After taking his gun, license, and permit to
carry, they tried to remove his belt bag from his waist, but he did not allow
them. [16]

Upon reaching the headquarters, ABDUL learned that these people were
C.I.S. agents. There, he was told to surrender the belt bag to the officer who
would issue a receipt for it. He did as he was told, and the money inside his
belt bag was counted and it amounted to P42,000. They then got his money
and the cellular phone, which was also inside the bag, together with some
other pieces of paper. They also took another cell phone from the car. He was
never issued a receipt for these items. [17]

Thereafter, a man entered the office with a white plastic bag allegedly
taken from the borrowed car. ABDUL denied ownership over the plastic
bag. That same man then told him that it contained shabu. ABDUL and Rose
were detained at the headquarters. The next morning, Rose was allowed to
get out; and in the afternoon, he was transferred to San Pedro Municipal Jail. [18]

After the trial, the trial court acquitted ABDUL in Criminal Cases Nos. 1236
and 1237 for violations of Presidential Decree No. 1866 and Article 168 of the
Revised Penal Code, respectively, due to insufficiency of evidence. However,
it convicted him in Criminal Case No. 1238 for violation of Section 16, Article
III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as
amended, and sentenced him to suffer the penalty of reclusion perpetua and
[19]

to pay a fine of P500,000, as well as the costs of the suit.

Dissatisfied with the judgment, ABDUL interposed the present appeal,
alleging that the trial court erred in (1) convicting him for violation of Section
16 of Article III of the Dangerous Drugs Act of 1972, as amended, despite
insufficiency of evidence; and (2) admitting the evidence presented by the
prosecution although it was obtained in violation of his constitutional rights.
In his first assigned error, ABDUL argues that the prosecution failed to
prove the material allegations in the information. The information charges him,
among other things, that without being authorized by law, [he] did then and
there willfully and feloniously have in his possession, custody and control
methamphetamine hydrochloride. However, the prosecution did not present
any certification from the concerned government agency, like the Dangerous
Drugs Board, to the effect that he was not authorized to possess shabu, which
is a regulated drug.Thus, his guilt was not proved beyond reasonable doubt.
 In his second assigned error, ABDUL asserts that he was not committing a
crime when the CIS agents boarded his car, searched the same and
ultimately arrested him. He was about to park his borrowed car per instruction
by the owner when he was harassed by the operatives at gunpoint. The gun
seen was properly documented; thus, there was no reason for the CIS agents
to bring him and his companion to the headquarters. The shabu allegedly
found in the car was brought in by somebody at the time he was under
interrogation. It was taken in violation of his constitutional right against illegal
search and seizure. Being a fruit of a poisonous tree it should not have been
admitted in evidence.
Moreover, the members of the CIDG merely relied on the information
received from an anonymous telephone caller who said that ABDUL was
driving a carnapped vehicle. They had no personal knowledge of the veracity
of the information. Consequently, there was no legal basis for his warrantless
arrest.
In the Appellees Brief, the Office of the Solicitor General (OSG) maintains
that ABDUL had the burden of proving that he was authorized to possess
shabu, but he failed to discharge such burden. Therefore, it is presumed that
he had no authority; consequently, he is liable for violation of Section 16,
Article III of the Dangerous Drugs Act of 1972, as amended. The OSG
likewise refutes ABDULs argument that there was a violation of his right
against unreasonable searches and seizures.
The general rule is that if a criminal charge is predicated on a negative
allegation, or that a negative averment is an essential element of a crime, the
prosecution has the burden of proving the charge. However, this rule is not
without an exception. Thus, we have held:

Where the negative of an issue does not permit of direct proof, or where the facts are
more immediately within the knowledge of the accused, the onus probandi rests upon
him. Stated otherwise, it is not incumbent upon the prosecution to adduce positive
evidence to support a negative averment the truth of which is fairly indicated by
established circumstances and which, if untrue, could readily be disproved by the
production of documents or other evidence within the defendants knowledge or
control. For example, where a charge is made that a defendant carried on a certain
business without a license (as in the case at bar, where the accused is charged with the
selling of a regulated drug without authority), the fact that he has a license is a matter
which is peculiarly within his knowledge and he must establish that fact or suffer
conviction.[20]

In the instant case, the negative averment that ABDUL had no license or
authority to possess methamphetamine hydrochloride or shabu, a regulated
drug, has been fairly indicated by the following facts proven by the testimonies
of the CIDG officers and the forensic chemist: (a) ABDUL was driving the
suspected carnapped vehicle when he was caught, and he appeared to be
healthy and not indisposed as to require the use of shabu as medicine; (b) the
contents of the sachets found in ABDULs open clutch bag inside the
car were prima facie determined by the CIDG officers to be shabu; and (c) the
said contents were conclusively found to be shabu by the forensic
chemist. With these established facts, the burden of evidence was shifted to
ABDUL. He could have easily disproved the damning circumstances by
presenting a doctors prescription for said drug or a copy of his license or
authority to possess the regulated drug. Yet, he offered nothing.
 And now on the second issue. The Constitution enshrines in its Bill of
Rights 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. To give full protection to it, the Bill of Rights also
[21]

ordains the exclusionary principle that any evidence obtained in violation of

said right is inadmissible for any purpose in any proceeding. [22]

It is obvious from Section 2 of the Bill of Rights that reasonable searches

and seizures are not proscribed. If conducted by virtue of a valid search
warrant issued in compliance with the guidelines prescribed by the
Constitution and reiterated in the Rules of Court, the search and seizure is
valid.
The interdiction against warrantless searches and seizures is not absolute.
The recognized exceptions established by jurisprudence are (1) search of
moving vehicles; (2) seizure in plain view; (3) customs search; (4) waiver or
consented search; (5) stop and frisk situation (Terry search); and (6) search
incidental to a lawful arrest. The last includes a valid warrantless search and
seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an
arrest is considered legitimate if effected with a valid warrant of arrest, the
Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in
flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped
prisoners. Another exception is a search made pursuant to routine airport
[23]

security procedure, which is authorized under Section 9 of R.A. No. 6235. [24]

The warrantless arrest of, or warrantless search and seizure conducted

on, ABDUL constitute a valid exemption from the warrant requirement. The
evidence clearly shows that on the basis of an intelligence information that a
carnapped vehicle was driven by ABDUL, who was also a suspect of drug
pushing, the members of the CIDG of Laguna went around looking for the
carnapped car. They spotted the suspected carnapped car, which was
[25]

indeed driven by ABDUL. While ABDUL was fumbling about in his clutch bag
for the registration papers of the car the CIDG agents saw four transparent
sachets of shabu. These sachets of shabu were therefore in plain view of the
[26]

law enforcers.
Under the plain view doctrine, unlawful objects within the plain view of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented in evidence. Nonetheless, the seizure of
evidence in plain view must comply with the following requirements: (a) a prior
valid intrusion in which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered by the police who
had the right to be where they are; (c) the evidence must be immediately
apparent; and (d) the plain view justified mere seizure of evidence without
further search. [27]

We are convinced beyond any shadow of doubt under the circumstances

above discussed that all the elements of seizure in plain view exist in the case
at bar. Thus, the warrantless search and seizure conducted on ABDUL, as
well as his warrantless arrest, did not transgress his constitutional rights.
ABDULs sole defense of denial is unsubstantiated. We have time and
again ruled that mere denial cannot prevail over the positive testimony of a
witness. A mere denial, just like alibi, is a self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters. As between a
categorical testimony that rings of truth on one hand, and a bare denial on the
other, the former is generally held to prevail.
[28]
 On the issue of credibility between ABDULs testimony and the
declarations of the CIDG officers, we hold for the latter. As has been
repeatedly held, credence shall be given to the narration of the incident by the
prosecution witnesses especially when they are police officers who are
presumed to have performed their duties in a regular manner, unless there be
evidence to the contrary; moreover in the absence of proof of motive to falsely
impute such a serious crime against the accused, the presumption of
regularity in the performance of official duty, as well as the findings of the trial
court on the credibility of witnesses, shall prevail over accuseds self-serving
and uncorroborated claim of having been framed. ABDUL miserably failed to
[29]

rebut this presumption and to prove any ulterior motive on the part of the
prosecution witnesses.
Unauthorized possession of 200 grams or more of shabu or
methylamphetamine hydrochloride is punishable by reclusion perpetua to
death under Section 16 of Article III, in relation to Section 20 of Article IV, of
the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by
P.D. Nos. 44, 1675, 1683, and 1707; Batas Pambansa Blg. 179; and R.A. No.
7659 (now further amended by R.A. No. 9165). These sections provide as
follows:

SEC.16. Possession or Use of Regulated Drugs. -- The penalty of reclusion

perpetua to death and fine ranging from five hundred thousand pesos to ten million
pesos shall be imposed upon any person who shall possess or use any regulated drug
without the corresponding license or prescription, subject to the provisions of Section
20 hereof.

SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or

Instruments of the Crime. -- The penalties for offenses under Sections 3, 4, 7, 8 and 9
of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be
applied if the dangerous drugs involved is in any of the following quantities:

3. 200 grams or more of shabu or methylamphetamine hydrochloride.

There is no doubt that the charge of illegal possession of shabu in

Criminal Case No. 1238 was proved beyond reasonable doubt since ABDUL
knowingly carried with him at the time he was caught 226.67 grams
of shabu without legal authority. There being no modifying circumstance
proven, the proper penalty pursuant to Article 63(2) of the Revised Penal
Code is reclusion perpetua. The penalty imposed by the trial court, including
the fine, is, therefore, in order.
WHEREFORE, the appealed decision of the Regional Trial Court of San
Pedro, Laguna, in Criminal Case No. 1238 convicting appellant ABDUL
MACALABA y DIGAYON of the violation of Section 16 of Article III of the
Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, and sentencing
him to suffer the penalty of reclusion perpetua and to pay a fine of P500,000
and the costs of the suit, is hereby affirmed in toto.
Costs de oficio.
SO ORDERED.
642 S.W.2d 504 (1982)

Matthew Thomas McBRAYER, Appellant, v. The STATE of Texas, Appellee.

No. 61688.

Court of Criminal Appeals of Texas, Panel 3.

December 15, 1982.

Kenneth E. Houp, Jr., Austin, for appellant.

James L. McMurtry, County Atty., and S.F. Eley, Asst. County Atty., Robert Huttash, State's Atty. and
Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W.C. DAVIS and TEAGUE, JJ.

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction, after a bench trial, for the offense of theft over five dollars. The court
assessed punishment at 10 days confinement, probated for 180 days, and a fine of $150.

In three related grounds of error, appellant challenges the sufficiency of the evidence. *505 Viewing the
evidence in the light most favorable to the verdict, Fernandez v. State, 564 S.W.2d
771 (Tex.Cr.App.1978), the record reflects that on March 1, 1978, Eileen Quinlan returned from lunch to
the Safeway store where she worked as a clerk. Upon entering the front door she noticed appellant, with
an unsacked bottle of wine in his hand, standing by the magazine rack. Quinlan then entered the store's
office, at which point she noticed appellant leave the store and informed the store manager, Tim
Ripperda, that appellant had just left the store with the bottle of wine.

Upon hearing Quinlan's suspicions Ripperda followed appellant out of the store and asked him to produce
a sales receipt for the wine. When asked for the receipt, appellant turned to Ripperda and stated, "Here's
your wine." The bottle had a typical Safeway price sticker on it. Appellant never produced a receipt, and
he never told Ripperda that he had actually paid for the wine. Ripperda then took appellant back inside
the store, the police were called, and appellant was placed under arrest.

V.T.C.A., Penal Code, Sec. 31.03, defines the offense of theft, and provides in part:

"(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of
property. "(b) Appropriation of property is unlawful if: "(1) it is without the owner's effective consent; ..."

We find the evidence adduced sufficient and appellant's grounds of error are overruled.

In his first ground of error, appellant alleges that the trial court erred in overruling his motion to quash the
information for failure to sufficiently notify him of the charges against him. Omitting the formal portions, the
information on which appellant was tried alleged that he, on March 1, 1978, did:

"... unlawfully appropriate property, to-wit: one bottle of Blue Nun wine of the value of less than $20.00
and over $5.00 from Safeway Stores Incorporated without the effective consent of the owner, Tim
Ripperda, and with intent to deprive the said owner of said property, ..." (emphasis added)

By timely filed motion to quash appellant asserted that the information failed to properly put him on notice
in that it did not specify which statutory definition of "appropriate" the prosecution was relying on.

Under V.T.C.A. Penal Code, Sec. 31.01(5), the term "appropriate", as used in the definition of the offense
of theft, is defined as follows:

"(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property,
whether to the actor or another; or "(B) to acquire or otherwise exercise control over property other than
real property."

In Gorman v. State, 634 S.W.2d 681 (Tex. Cr.App.1982), the indictment alleged in pertinent part, that on
a given date and with the required intent and culpable mental state appellant did "unlawfully appropriate
such property," namely "one camera" valued at more than two hundred but less than ten thousand
dollars. The trial court subsequently overruled the appellant's motion to quash the indictment. In reversing
the conviction on the basis of the indictment's failure to provide the appellant with adequate notice of the
charges against him, this Court quoted from Ferguson v. State, 622 S.W.2d 846(Tex.Cr.App.1982)
(Opinion on Rehearing), which held:

"... it is clear that even though an act or omission by a defendant is statutorily defined, if that definition
provides for more than one manner or means to commit that act or omission, then upon timely request,
the State must allege the particular manner or means it seeks to establish." 622 S.W.2d at 851.

Thereafter, in Coleman v. State, 643 S.W.2d 124 (1982), this Court reaffirmed the rule expressed in
Gorman, supra. In Coleman, the indictment alleged in part that the appellant "did unlawfully, knowingly,
and *506 intentionally appropriate property, other than real property, namely: four (4) men's suits...." Prior
to trial, the appellant filed a motion to quash the indictment claiming therein that the indictment failed to
give him sufficient notice of the meaning of the term "appropriate." The motion was denied, and the
appellant was convicted. The Dallas Court of Appeals then reversed the conviction, relying on Ferguson,
supra, on the grounds that "the term `appropriate' goes to an act or omission of the accused and the trial
court erred in failing to grant appellant's motion to quash the indictment." In upholding the Court of
Appeal's reversal of the conviction this Court stated:

"... if a word or term in a charging instrument goes to an act or omission of the defendant, and the
defendant files and presents to the trial court a motion to quash, the word or term, even though statutorily
defined, must be further clarified by the State because the `lack of notice of acts or omissions is by
definition a denial of fair notice' to an accused.... [t]hus, there are different and distinct ways which the
State could have used to establish that the appellant `appropriated' the four (4) men's suits he was
accused of stealing. We, therefore, answer the question, whether or not the appellant could have
unlawfully committed the act of appropriating four (4) men's suits through more than one manner or
means, in the affirmative."

We find that the holdings of Gorman, supra, and Coleman, supra, control the disposition of the case at
bar. Because the act of "appropriation" could have been committed by more than one manner or means,
Sec. 31.01(5), supra, appellant was entitled to have this term clarified by the prosecution in a correctly
drawn information. We see no distinction between "appropriating" one bottle of Blue Nun wine, and
"appropriating" one camera, or four (4) men's suits. It was error for the court to overrule appellant's motion
to quash the information.

We therefore order the judgment reversed and the information dismissed.

DALLY, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8646 March 31, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
BENITO SIY CONG BIEN and CO KONG, defendants.
BENITO SIY CONG BIENG, appellant.

Tirso de Irureta Goyena for appellant.

Attorney-General Avanceña for appellee.

CARSON, J.:

Benito Siy Cong Bieng and Co Kong, the defendants in this action, were convicted in the court below of a violation of
section 7 of Act No. 1655 of the Philippine Commission, known as the Pure Food and Drugs Sct, and each of them
was sentenced to pay a fine of P10 and one-half of the costs of the proceedings. From this judgment the defendant
Benito Siy Cong Bieng alone appealed. The only error assigned by counsel for the appellant in his brief on this
appeal is as follows:

The court erred in holding that the accused Benito Siy Cong Bieng had violated the provision of Act No.
1655 and was criminally responsible, in the same way as his agent Co Kong, notwithstanding the fact that
he had never had any knowledge of the acts performed by the latter, which are the subject matter of the
complaint, to wit, sale of adulterated coffee or of any kind of coffee.

The record discloses that Co Kong, while in charge of appellant's tienda (store) and acting as his agent and
employee, sold, in the ordinary course of business coffee which had been adulterated by the admixture of peanuts
and other extraneous substances. The circumstances under which the sale was made clearly appear from the
following statement of facts which was read into the record under an agreement signed by both defendants and by all
the attorneys in the case:

It is hereby stipulated and admitted by both parties that the defendant Benito Siy Cong Bieng is the owner
of tienda No. 326, Calle Santo Cristo, and that Co Kong is his agent duly installed thereon and performing
the services of his employment; that on July 2, 1912, the defendant Co Kong in the ordinary course of the
business sold a certain food product designated by the name of coffee; that said coffee was adulterated and
falsely branded, as alleged in the complaint; 'that the defendant Benito Siy Con Bieng really had no
knowledge that his agent Co Kong would sell said coffee or any special brand of coffee, such as the
aforesaid adulterated and falsely branded coffee, as is specified in the complaint; it was not manufactured or
put up by or with the knowledge of the defendant Benito Siy Cong Bieng;' and the defendants Benito Siy
 Cong Bieng and Co Kong furthermore agree that this stipulation shall have the effects of, and may be used
by the prosecution as, an admission of the facts herein established."

The only questions, therefore, which need be considered on this appeal are: first, whether a conviction under the
Pure Food and Drugs Act can be sustained where it appears that the sale of adulterated food products charged in the
information was made without guilty knowledge of the fact of adulteration, and without conscious intent to violate the
statute; and second, whether a principal can be convicted under the Act for a sale of adulterated goods made by one
of his agents or employees in the regular course of his employment, but without knowledge on the part of the
principal of the fact that the goods sold were adulterated.

While it is true that, as a rule and on principles of abstract justice, men are not and should not be held criminally
responsible for acts committed by them without guilty knowledge and criminal or at least evil intent (Bishop's New
Crim. Law, Vol. I, sec. 286), the courts have always recognized the power of the legislature, on grounds of public
policy and compelled by necessity, "the great master of things," to forbid in a limited class of cases the doing of
certain acts, and to make their commission criminal without regard to the intent of the doer. (U. S. vs. Go Chico, 14
Phil. Rep., 128; U. S. vs. Ah Chong, 15 Phil. Rep., 488.) In such cases no judicial authority has the power to require,
in the enforcement of the law, such knowledge or motive to be shown. As was said in the case of State vs.
McBrayer (98 N. C., 619, 623):

It is a mistaken notion that positive, willful intent, as distinguished from a mere intent, to violate the criminal
law, is an essential ingredient in every criminal offense, and that where there is the absence of such intent
there is no offense; this is especially so as to statutory offenses. When the statute plainly forbids an act to be
done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was
honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the
offense is not made to depend upon the positive, will intent and purpose, nothing is left to interpretation.

In the case of United States vs. Go Chico (14 Phil. Rep., 128, 138) it was said that: "Care must be exercised in
distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act."

The intent to commit an act prohibited and penalized by statute must, of course, always appear before a conviction
upon a charge of the commission of a crime can be maintained. But whether or not the existence of guilty knowledge
and criminal or evil intent, that is to say, the conscious intent or will to violate the statute, just also appear in order to
sustain a judgment of conviction is a question which must be determined in each case by reference to the language
of the statute defining the offense.

The growing interest manifested during the past decade on the subject if pure food has been reflected in the passage
of the Federal Pure Food and Drugs Act of June 30, 1906, and in the passage of similar acts by a number of the state
legislatures. The Philippine Pure Food and Drugs Act (No. 1655) is, with some light modifications, substantially
identical with the Federal act. Its prohibitions of the sales of adulterated foodstuffs and drugs are absolute and
general. Indeed, they could hardly be expressed in terms more explicit and comprehensive. The statutory definition of
the offense embraces no word implying that the forbidden act shall be done knowingly or willfully, and if it did, the
design and purpose of the Act would in many instances be thwarted and practically defeated. The intention of the
Legislature is plain that persons engaged in the sale drugs and food products cannot set up their ignorance of the
nature and quality of the commodities sold by them as a defense. We conclude therefore that under the Act proof of
the facts of the sale of adulterated drugs and food products as prohibited by the Act is sufficient to sustain a
conviction, without proof of guilty knowledge of the fact of adulteration, or criminal intent in the making of the sale
other than that necessarily implied by the statute in the doing of the prohibited act.

Counsel for appellant has cited a number of cases touching the various phases of the question now under discussion,
but it will be sufficient for our purposes to limit ourselves to some reference to the cases wherein prosecutions have
arisen upon charges of violations of pure food laws. In some of these statutes guilty knowledge and criminal intent is
made essential to the commission of the offense prohibited, and of course where such is the case guilty knowledge
and criminal intent must appear before a conviction can be sustained. But the overwhelming weight of authority
construing statutes, generally known as pure food laws, is to the effect that in the absence of language in the statute
making guilty knowledge and criminal intent an essential element of the acts prohibited thereunder, it is not necessary
to charge or to prove that prohibited sales of food products are made with guilty knowledge or criminal intent in order
to sustain convictions under such statutes.

Supported by numerous citations of authority, Thornton in his work on "Pure Food and Drugs," says with reference to
the Federal act of June 30, 1906: "The intent with which these several violations of the statute is done is immaterial.
There may be no intention to violate the statute, yet if the act produces the result forbidden by the statute, an offense
has been committed." (Sec. 119, p. 202.)

And again: "Repeated statements have been made in this work that an intent to violate the statute is not necessary in
order to incur the infliction of a penalty for the sale or keeping for sale [of] adulterated or impure food or drugs. An act
performed with no intent to violate a purefoods statute is just as much a crime under this Federal Pure Food and Drug
Act of June 30, 1906, as if a criminal design to violate it was intended and entertained at the time of its performance.
This rule extends to sales or other acts by servants." (Sec. 512, p. 613.)

And again, at section 559, the same author, citing numerous authorities, shows that in prosecutions for the sale of
adulterated milk it has been quite uniformly held that it is no defense that the accused had no knowledge of the fact of
alteration, and that it need not be alleged or proven that he had such knowledge, in the absence of special words in
the statute requiring the sale to be made with knowledge of the adulteration.

In the case of People vs. Kibler (106 N. Y., 321), the court said: "It is notorious that the adulteration of food products
has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with
greed, and the careless and heedless consumers are exposed to increasing perils. The redress such evils is a plain
duty but a difficult task. Experience such taught the lesson that repressive measures which depend for their efficiency
upon proof of the dealer's knowledge and of his intent to deceive and defraud are of title use and rarely accomplish
their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the
purity and soundness of what he sells and compels him to know and to be certain."

Upon the question of the liability of the master for the violation of a pure food law by his clerk committed without his
knowledge or consent, the leading case would seem to be Groff vs. State (171 Ind., 547). In that case the court said:

The distribution of impure or adulterated food for consumption is an act perilous to human life and health;
hence, a dangerous act, and cannot be made innocent and harmless by the want of knowledge or the good
faith of the seller.

Guilty intent is not an element in the crime . . . . hence, the rule that governs in that large class of offenses,
which rests upon criminal intent, has no application here. Cases like this are founded largely upon the
principle that he who voluntarily deals in perilous articles must be cautious how he deals.

The sale of oleomargarine in an adulterated form, or as a substitute for butter, is a crime against the public
health. Whoever, therefore, engages in its sale, or in the sale of any article interdicted by the law, does so at
his peril, and impliedly undertakes to conduct it with whatever degree of care is necessary to secure
compliance with the law. He may conduct the business himself, or by clerks or agents but if he chooses the
latter the duty is imposed upon him to see to it that those selected by him to sell the article to the public obey
the law in the matter of selling; otherwise, he, as the principal and the responsible proprietor of the business,
is liable for the penalty imposed by the statute.

See also the cases of State vs. Bockstruck (136 Mo., 335), and Commonwealth vs. Vieth (155 Mass., 442).

Labatt in his work on Master and Servant (vol. 7, sec. 2569) discusses the general rule as to liability of the master for
criminal conduct of his servant as follows: "Although the courts are in accord as to the master's liability when he
participates in the criminal conduct of his servant, there is a decided conflict of opinion as to his responsibility when
the act of the servant is without the master's knowledge or connivance and against his express orders. These cases
can be reconciled to some extent by the difference in the language employed in the statutes to define the various
offenses, and the policy of the statutes themselves. Wherever guilty intent is an essential ingredient of the crime, it
would be impossible to fix responsibility upon the master for his servant's transgression of the law, if the master did
not harbor such an intent. . . . In most instances where the master is held to be responsible criminally for the wrongful
conduct of his servant, it is on the theory that the act complained of is positively forbidden, and therefore guilty
intention is not essential to a conviction of the offense."

And in section 2573, supported by numerous citations from cases dealing with infringement of liquor laws and pure
food laws, he say: "I f certain acts are positively forbidden by statute, and it is the policy of the law to prohibit them,
irrespective of what the motive or intent of the person violating statute may be, no principle of justice is violated by
holding the master responsible for the conduct of his servant on the same theory that he is held responsible civilly."

Upon the reasoning and the authority of the cases there referred to, we are of opinion that even in the absence of
express provisions in the statute, the appellant in the case at bar was properly held criminally responsible for the act
of his agent in selling the adulterated coffee, and indeed it seems write clear that his liability is expressly
contemplated under the provision of section 12 of Act No. 1655 of the Philippine Commission, which is as follows:

The word "person" as used in this Act shall be construed to import both the plural and the singular, as the
case demands, and shall include corporations, companies, societies, associations, and other commercial or
legal entities. When construing and enforcing the provisions of this Act, the act, omission, or failure of any
officer, agent, or other person acting for or employed by any corporation, company society, association, or
other commercial or legal entity, within the scope of his employment or office, shall in every case be also
deemed to be the act, omission, or failure of such corporation, company, society, association, or other
commercial or legal entity, as well as that of the person.

It is contended that the express provisions of this section, referring as they do to the liability of any "corporation,
society, association, or other commercial or legal entity," do not include cases of agency of a private individual. We
are of opinion, however, that the words "commercial or legal entity" as used in this provision is sufficiently
comprehensive to include a private individual engaged in business who makes use of agent or agents, employee or
employees, in the conduct of his business; and even if this position could be successfully controverted we would still
be of opinion that the provisions of this section clearly and definitely indicate the policy of the statute to prohibit and
penalize the acts forbidden thereunder, irrespective of what the motive or intent of the person violating the statute
may be, and to hold the master in all cases responsible for the act, omission or failure of his servant, within the scope
of his employment, whether he be a private individual, a corporation, company, society, association, or other
commercial or legal entity.

We conclude that the judgment of conviction entered in the court below should be affirmed, with the costs of this
instances against the appellant. So ordered.

Torres, Johnson and Trent, JJ., concur.

Arellano, C.J. and Araullo, J., dissent.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9806 January 19, 1916

LEONIDES LOPEZ LISO, plaintiff-appellee,
vs.
MANUEL TAMBUNTING, defendant-appellant.

Silvestre Apacible for appellant.

Gibbs, McDonough and Blanco for appellee.

ARAULLO, J.:

These proceedings were brought to recover from the defendant the sum of P2,000, amount of the fees, which,
according to the complaint, are owing for professional medical services rendered by the plaintiff to a daughter of the
defendant from March 10 to July 15, 1913, which fees the defendant refused to pay, notwithstanding the demands
therefor made upon him by the plaintiff.

The defendant denied the allegations of the complaint, and furthermore alleged that the obligation which the plaintiff
endeavored to compel him to fulfill was already extinguished.

The Court of First Instance of Manila, after hearing the evidence introduce by both parties, rendered judgment on
December 17, 1913, ordering the defendant to pay to the plaintiff the sum of P700, without express finding as to
costs. The defendant, after entering a motion for a new trial, which was denied, appealed from said judgment and
forwarded to this court the proper bill of exceptions.

The first question raised by this appeal relates to the amount or value of the fees which the defendant was ordered to
pay.

In the judgment appealed from, the medical services rendered by the plaintiff to the defendant's daughter are given in
detail, in accordance with the statement Exhibit A, presented by the plaintiff. The latter claimed the sum of P2,000 as
the reasonable value of his services. The court after discussing the matter of the service rendered and after taking
into account that the plaintiff, as soon as he had finished rendering them, asked for compensation in the sum of P700
only, and furthermore, holding that it was in no wise proven that, because said amount was not paid the plaintiff was
entitled to recover from the defendant, by means of these proceedings, the sum of P2,000, held that the reasonable
value of said services could only be worth said P700. We agree with this finding of the trial court.

The second question raised by this appeal involves the question of whether the defendant has really paid the plaintiff,
as he claims to have done, the sum of P700 before mentioned, that is, whether the obligation alleged in the complaint
has already been extinguished.

The receipt signed by the plaintiff, for P700, the amount of his fees he endeavored to collect from the defendant after
he had finished rendering the services in question (which receipt was presented by the defendant at the trial as
Exhibit 1) was in the latter's possession, and this fact was alleged by him as proof that he had already paid said fees
to the plaintiff.

With respect to this point, and as the trial court very correctly said in the judgment appealed from, the testimony given
by both the plaintiff and the defendant, as well as by their respective witnesses, is entirely contradictory.

The court, after hearing the testimony, reached the conclusion that, notwithstanding that the defendant was in
possession of the receipt, the said P700 had not been paid to the plaintiff.

After a careful examination of the evidence we find no reasons whatever for changing or modifying this finding of the
court below. The trial judge had the plaintiff and the defendant and their witnesses before him, he heard them make
their respective statement and was in a position to know which of them was telling the truth and to determine on
which side the preponderance of the evidence lay.

It is true that number 8 of section 334 of the Code of Civil Procedure provides as a legal presumption "that an
obligation delivered up to the debtor has been paid." Article 1188 of the Civil Code also provides that the voluntarily
surrender by a creditor to his debtor of a private instrument proving a credit, implies the renunciation of the right of
action against the debtor; and article 1189 prescribes that whenever the private instrument which evidences the debt
is in the possession of the debtor, it will be presumed that the creditor delivered it of his own free will, unless the
contrary is proven.

But the legal presumption established by the foregoing provisions of law cannot stand if sufficient proof is adduced
against it. In the case at bar the trial court correctly held that there was sufficient evidence to the contrary, in view of
the preponderance thereof in favor of the plaintiff and of the circumstances connected with the defendant's
possession of said receipt Exhibit 1. Furthermore, in order that such a presumption may be taken into account, it is
necessary, as stated in the laws cited, that the evidence of the obligation be delivered up to the debtor and that the
delivery of the instrument proving the credit be made voluntarily by the creditor to the debtor. In the present case, it
cannot be said that these circumstances concurred, inasmuch as when the plaintiff sent the receipt to the defendant
for the purpose of collecting his fee, it was not his intention that that document should remain in the possession of the
defendant if the latter did not forthwith pay the amount specified therein.

By reason of the foregoing, we affirm the judgment appealed from, with costs of this instance against the appellant.
So ordered.

Arellano, C.J., Torres, Johnson, Moreland and Trent, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 176479 October 6, 2010

RIZAL COMMERCIAL BANKING CORPORATION, Petitioner,

vs.
PEDRO P. BUENAVENTURA, Respondent.

RESOLUTION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court. Petitioner Rizal
Commercial Banking Corporation (RCBC) assails the Decision 1 dated November 21, 2006 and the Resolution2dated
January 30, 2007 of the Court of Appeals (CA) in CA-G.R. CV No. 82079.

Respondent Pedro P. Buenaventura and his first wife (now deceased) owned a townhouse unit in Casa Nueva
Manila Townhouse, Quezon City. On December 27, 1994, they obtained a loan from petitioner. As security for the
loan, they mortgaged the townhouse to petitioner. 3 Under the loan agreement, respondent was to pay RCBC a fixed
monthly payment with adjustable interest for five years. For this purpose, respondent opened an account with
RCBC’s Binondo branch from which the bank was to deduct the monthly amortizations. 4

On April 19, 1999, respondent received a Notice of Public Auction of the mortgaged townhouse unit. He wrote Atty.
Saturnino Basconcillo, the notary public conducting the auction sale, demanding the cancellation of the auction sale.
However, the notary public proceeded with the public sale on May 25, 1999, where RCBC emerged as the highest
bidder. The Notary Public’s Certificate of Sale was registered with the Register of Deeds on September 28, 2000.

On September 18, 2001, respondent filed with the Regional Trial Court (RTC) of Quezon City a complaint for
Annulment of Sale and Damages against RCBC, notary public Saturnino Basconcillo, and the Registrar of Deeds of
Quezon City. Respondent prayed that the RTC (1) annul the extra-judicial foreclosure and sale of the property; (2)
cancel the Certificate of Sale; and (3) direct the payment of ₱170,000.00 as actual damages, ₱100,000.00 as moral
damages, ₱50,000.00 as exemplary damages, ₱70,000.00 as attorney’s fees, plus ₱2,500.00 for every court
appearance of his counsel, and the costs of the suit.

RCBC failed to timely file an Answer and was declared in default. Based on respondent’s evidence, the RTC
rendered a decision,5 the dispositive portion of which reads:

WHEREFORE, judgment is rendered:

1. Declaring the foreclosure sale of the plaintiff’s (respondent’s) property covered by Transfer Certificate of
Title No. 39234 of the Registry of Deeds of Quezon City conducted on May 25, 1999 by notary public ATTY.
SATURNINO M. BASCONCILLO, and the resulting certificate of sale issued by said notary public on May
27, 1999 null and void and of no effect; and

2. Ordering RIZAL COMMERCIAL BANKING CORPORATION to pay to the plaintiff ₱100,000.00 as moral
damages; ₱50,000.00 as exemplary damages; ₱70,000.00 as actual damages; and the costs of suit; and

3. Dismissing the complaint as against ATTY. SATURNINO M. BASCONCILLO and the REGISTRAR OF
DEEDS OF QUEZON CITY.

SO ORDERED.6

The RTC found that respondent made regular payments of the monthly amortizations as they fell due, as evidenced
by his passbooks and the various deposit slips acknowledged by RCBC. 7 The RTC also found that RCBC’s own
computer-generated amortization schedule showed that no balance was due respondent after his last payment on
March 27, 2000.8

RCBC filed a motion for reconsideration. It was denied in a resolution9 dated February 11, 2004.

RCBC then appealed to the CA. In the assailed November 21, 2006 Decision, 10 the CA affirmed the RTC’s decision
with modification, deleting the award of moral and exemplary damages.

The CA ruled that the foreclosure sale was premature. It held that respondent made valid and sufficient payments on
his loan obligation. It found respondent’s evidence as sufficient proof to negate default on his part in paying the
monthly amortizations. It noted that sometime in September 1996, RCBC sent respondent a letter informing the latter
of past due accounts since January 27, 1996, which would warrant the application of the acceleration clause. The
CA, however, deemed the same to have been "cured" by a subsequent Amortization Schedule given by the bank to
respondent stating that, as of March 27, 2000, he no longer had an unpaid balance on his loan. The CA said this
clearly suggests the uninterrupted receipt by RCBC of the installments, thus, negating the claim that respondent was
in default. It also noted respondent’s evidence (his passbooks) which indicated that he had sufficient funds to cover
the remaining balance of his loan at the time of the foreclosure sale. Moreover, the CA said that based on the term of
the loan (April 27, 1995 to March 27, 2000), the loan was not yet due and demandable at the time of the foreclosure.
On the other hand, the CA found the award of moral and exemplary damages unwarranted. It held that since
respondent irregularly paid his monthly amortizations, RCBC did not act maliciously and in bad faith when it initiated
the foreclosure proceedings.

RCBC moved for reconsideration of the Decision, but it was denied in a Resolution dated January 30, 2007.

In this petition, RCBC argues that the CA Decision is not in accord with law and applicable jurisprudence. In
particular, it assails the CA’s finding that respondent was not in default at that time of the foreclosure of the mortgage.
It says that the foreclosure sale was done in the lawful exercise of its right as mortgagee of the property as, at the
time of the foreclosure sale, respondent had unpaid amortizations. The bank points out that respondent made
payments until March 2000, but these payments were not withdrawn by the bank and credited to respondent’s loan
payments but remained in his account.

In his Comment, respondent avers that he never received a copy of petitioner’s Motion for Extension of Time to file
the Petition for Review in violation of Rule 45, Section 2. Thus, he argues that the motion is without legal effect, and
therefore, the petition has been filed out of time. He also alleges that the petition lacks the requisite affidavit of
material dates. Respondent likewise posits that the petition does not raise questions of law. He argues that the issue
raised by petitioner, while purportedly a question of law, in reality questions the sufficiency of evidence relied upon by
both the trial court and the CA, which this Court has held in the past to be a question of fact.

In its Reply, petitioner counters respondent’s arguments by saying that the issue it raised – whether respondent’s
subsequent payment of unpaid amortizations done after the foreclosure and public sale of the property invalidates the
extra-judicial foreclosure and public sale proceedings – is a purely legal question.

The petition lacks merit and must be denied.

Clearly, the petition disputes the factual findings of the CA,11 which, in turn, merely affirmed the factual findings of the
RTC.

It is settled that factual findings of the trial court, when adopted and confirmed by the CA, are binding and conclusive
on this Court and will generally not be reviewed on appeal. Inquiry into the veracity of the CA’s factual findings and
conclusions is not the function of the Supreme Court, because this Court is not a trier of facts. Neither is it our
function to reexamine and weigh anew the respective evidence of the parties. 12 1avvphi1

While it is true that there are well-established exceptions to this principle, petitioner in this case has failed to show
that this case falls under one of such exceptions.

The RTC and the CA both found that respondent was not in default on the monthly payments of his loan obligation.

These findings are supported by the evidence on record.

At the time of foreclosure – April 1999 – respondent’s savings account deposits showed a balance of
₱852,913.26.13 This was more than enough to cover whatever amortizations were due from him at that time.
Moreover, the Amortization Schedule shows that, as of April 27, 1999, respondent’s loan account with the bank
totaled only ₱269,023.38.14 The same schedule shows that, by March 27, 2000, he had "0.00" balance left to
pay,15meaning he had paid his loan in full.

Foreclosure is valid only when the debtor is in default in the payment of his obligation. 16 It is a necessary
consequence of non-payment of mortgage indebtedness. As a rule, the mortgage can be foreclosed only when the
debt remains unpaid at the time it is due.17

In a real estate mortgage, when the principal obligation is not paid when due, the mortgagee has the right to foreclose
on the mortgage, to have the property seized and sold, and to apply the proceeds to the obligation. 18

RCBC’s own Amortization Schedule readily shows the applicability of Article 1176 of the Civil Code, which states:

Art. 1176. The receipt of the principal by the creditor, without reservation with respect to the interest, shall give rise to
the presumption that the said interest has been paid.

The receipt of a later installment of a debt without reservation as to prior installments, shall likewise raise the
presumption that such installments have been paid.19

Respondent’s passbooks indicate that RCBC continued to receive his payments even after it made demands for him
to pay his past due accounts, and even after the auction sale.

RCBC cannot deny receipt of the payments, even when it claims that the deposits were "not withdrawn." 20 It is not
respondent’s fault that RCBC did not withdraw the money he deposited. His obligation under the mortgage
agreement was to deposit his payment in the savings account he had opened for that purpose, in order that RCBC
may debit the amount of his monthly liabilities therefrom. He complied with his part of the agreement.

This bolsters the conclusion of the CA that respondent had no unpaid installments and was not in default as would
warrant the application of the acceleration clause and the subsequent foreclosure and auction sale of the property.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The Decision dated November 21, 2006
and the Resolution dated January 30, 2007 of the Court of Appeals in CA-G.R. CV No. 82079 are
hereby AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 169875 December 18, 2007

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANILO JOCSON y BAUTISTA, accused-appellant.

DECISION

PUNO, C.J.:

On appeal are the Decision1 dated April 29, 2005 and the Resolution2 dated September 13, 2005 of the Court of
Appeals, in CA-G.R. CR-H.C. No. 00245. The Court of Appeals affirmed the decision of the Regional Trial Court of
Caloocan City in Criminal Case No. C-66034, convicting accused-appellant Danilo Jocson of violation of Sections 5
and 11, Art. II of R.A. No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

On the evening of August 7, 2002, an informant reported to the office of the Station Drug Enforcement Unit, Caloocan
City, a person referred to by the alias "Manong," who was allegedly selling shabu at the vicinity of B.M.B.A., 2 nd Ave.,
East Caloocan City. With this information, Police Chief Senior Inspector Jose Valencia formed a team to conduct a
buy-bust operation, in which SPO1 Joseph delos Santos was designated as the poseur-buyer. That same night, the
team proceeded to the reported area. The informant, upon seeing "Manong," approached the latter and introduced
Delos Santos as a customer. Delos Santos then told "Manong," "Pare, pabili ng piso," and handed him the marked
100-peso bill with serial number UM856594. Upon receipt of the marked money, "Manong" took out from his pocket
and handed Delos Santos a plastic sachet containing white crystalline granules. Delos Santos then scratched his left
ear, signaling a positive bust. SPO3 Rodrigo Antonio responded to the signal and came to the aid of Delos Santos.
They frisked "Manong" and found four more plastic sachets of white crystalline granules on his body. They also
recovered the marked money from "Manong." They then brought "Manong" to the police station for investigation. It
was only then that the police learned that "Manong" is Danilo Jocson, herein accused-appellant. SPO1 Delos Santos
and SPO3 Antonio also turned over to Police Investigator Ferdinand Moran the plastic sachets and the marked
money recovered from "Manong" upon arriving at the police station. Moran, in turn, marked the pieces of evidence.
Then, the marked pieces of evidence were turned over to the Northern Police District (NPD) crime laboratory for
chemical analysis. Police Inspector Juanita Sioson, a Forensic Chemical Engineer, found the white crystalline
granules, contained in five heat-sealed transparent plastic sachets, to be positive for methylamphetamine
hydrochloride, a dangerous drug. Further, four of the five sachets weighed 0.05 gram each, and one sachet weighed
0.04 gram.

Accused-appellant Jocson was charged with violations of Sections 5 and 11, Art. II of R.A. No. 9165, or the
Comprehensive Dangerous Drugs Act of 2002, in two separate Informations:

CRIMINAL CASE NO. 66034

That on or about the 7th day of August 2002 in Caloocan City, M.M. and within the jurisdiction of this
Honorable Court, the above-named accused, without having been authorized by law, did then and there
willfully, unlawfully and feloniously sell and deliver to one PO1 JOSEPH DELOS SANTOS, who posed as
buyer, 0.05 gram of Methylamphetamine Hydrochloride (Shabu), for One Hundred Pesos with SN
UM856594 knowing the same to be a dangerous drug.

CONTRARY TO LAW.

CRIMINAL CASE NO. 66035

That on or about the 7th day of August 2002 in Caloocan City, M.M. and within the jurisdiction of this
Honorable Court, the above-named accused, without having been authorized by law, did then and there
willfully, unlawfully and feloniously have in his possession, custody and control four (4) pcs. of heat-sealed
transparent plastic sachet containing Methylamphetamine Hydrochloride (Shabu) with a total weight [of] 0.19
gram, knowing the same to be a dangerous drug.

CONTRARY TO LAW.3

The two criminal cases against accused-appellant were consolidated, and trial ensued.

Accused-appellant Jocson denied the accusations against him. He testified that on the night of his arrest, he was at
his residence at No. 192 2nd Avenue, Grace Park, Caloocan City. While watching a late-night television show with his
mother and his 11-year old niece, SPO3 Antonio entered his house, and upon seeing him, shouted "Positive!"
Thereafter, five other policemen entered the house, forced accused-appellant out of his bed and handcuffed him. The
police officers then brought him to the police station without informing him of the charges. In his testimony, accused-
appellant denied selling shabu to the police poseur-buyer or possessing more quantities of shabu. He alleged that the
charges against him were fabricated.
Eleven-year old April Jane Buenaobra, niece of accused-appellant, corroborated the latter’s testimony. Buenaobra
testified that on August 7, 2002, at around eleven o’clock in the evening, while watching television, her grandmother
answered a knock on the door. Suddenly, policemen barged into the house, grabbed her uncle and forcibly took him
away.

On April 8, 2003, the Regional Trial Court of Caloocan City convicted the accused-appellant. The dispositive portion
of the decision reads:

THEREFORE, premises considered and the prosecution having established to a moral certainty the guilt of
Accused DANILO JOCSON y BAUTISTA of the crimes charged, this Court hereby renders judgment as
follows:

1. In Crim. Case No. 66034 for Violation of Sec. 5, Art. 11 of RA 9165, this Court in the absence of any
aggravating circumstance hereby sentences the aforenamed Accused to LIFE IMPRISONMENT; and to pay
the fine of P500,000.00 without any subsidiary imprisonment in case of insolvency;

2. In Crim. Case No. 66035 for Violation of Sec. 11, Art. 11 of same Act, this Court in the absence of any
modifying circumstance hereby sentences common Accused to a prison term of twelve (12) years and one
(1) day to fourteen (14) years and eight (8) months and to pay the fine of three hundred thousand pesos
(P300,000.00), without any subsidiary imprisonment in case of insolvency.

Subject drug in both cases are hereby declared confiscated and forfeited in favor of the government to be
dealt with in accordance with law.

xxxxxx

SO ORDERED.4

Accused-appellant Jocson appealed to this Court, with the following assignment of errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE SELF-
SERVING TESTIMONIES OF POLICE OFFICERS RODRIGO ANTONIO AND JOSEPH DE LOS SANTOS.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.5

This Court, however, referred the case to the Court of Appeals in conformity with the ruling in People v. Mateo.6

The Court of Appeals affirmed the decision of the Regional Trial Court. It also denied accused-appellant’s motion for
reconsideration.

We affirm the decision of the Court of Appeals.

The testimony of SPO1 Delos Santos was spontaneous, straightforward and categorical. Further, SPO3 Antonio,
back-up security of SPO1 Delos Santos, corroborated the latter’s testimony on its material points. On the other hand,
we find no reason to believe the denials and self-serving allegation of accused-appellant that his arrest was
concocted out of thin air by the police officers. No evidence was presented to show any antagonism between him and
the police officers to explain why the police officers allegedly picked on him. Settled is the rule that in cases involving
violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for they are
presumed to have performed their duties in a regular manner, unless there is evidence to the contrary suggesting ill
motive on the part of the police officers or deviation from the regular performance of their duties. 7None was presented
in the instant case.

Neither will the testimony of his 11-year old niece exculpate accused-appellant from the crimes charged against him.
On cross-examination, April Jane admitted that her grandmother impressed on her that her uncle was arrested by the
police even when he had done nothing wrong. As observed by the trial court, April Jane appeared to be a rehearsed
witness. Further, being a close kin of accused-appellant, her credibility is highly suspect. A portion of her testimony is
as follows:

CROSS-EXAMINATION

Q Are you saying now Madam Witness that you [were] also discussing this case to (sic) your mother?

A Yes, sir.

Q When you discussed this case, Madam Witness, do I get you right that they were talking to you with
respect [to] how your uncle was arrested?

A Yes, sir.
 Q And, they [were] also discussing to (sic) you that your uncle has not committed any wrong?

A Yes, sir.

Q And, they were also discussing with you Madam Witness, that what was done by the policeman is also
wrong?

A Yes, sir.8

The findings and conclusion of the trial court on the credibility of witnesses are entitled to great respect because the
trial courts have the advantage of observing the demeanor of witnesses as they testify. In the process of converting
into written form the statements of living human beings, not only fine nuances but a world of meaning apparent to the
judge present, watching and listening, may escape the reader of the translated words. 9

In the instant case, the police arrested accused-appellant in a buy-bust operation. A buy-bust operation is one form of
entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission
of an offense.10 Entrapment has received judicial sanction when undertaken with due regard for constitutional and
legal safeguards.11 Where the criminal intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person, acting as a decoy for the state, or that public officials furnished the accused an
opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to
secure the evidence necessary to prosecute him, there is permissible entrapment and the accused must be
convicted.12 What the law forbids is the inducing of another to violate the law, the "seduction" of an otherwise innocent
person into a criminal career.13 Where the criminal intent originates in the mind of the state decoy, such as an
undercover agent, and the accused is lured into the commission of the offense charged in order to prosecute him,
there is instigation, as we call it in our jurisprudence, and no conviction may be had. 14 In instigation, the instigator
practically induces the would-be accused into the commission of the offense and himself becomes a co-principal. In
entrapment, the peace officer resorts to ways and means to trap and capture the lawbreaker in the execution of the
latter’s criminal plan. Instigation is illegal and contrary to public policy. Entrapment is not. 15

In the case at bar, the details of the transaction were clearly and adequately shown, viz.: (a) the initial contact
between the poseur-buyer and the pusher; (b) the offer to buy; (c) the promise or payment of the consideration; and
(d) the delivery of the illegal drug subject of the sale. The initial contact was made through an informant. On the day
of the operation, the informant approached accused-appellant Jocson, a.k.a. "Manong," and introduced him to SPO1
Delos Santos, the poseur-buyer. Delos Santos then offered to buy when he told "Manong," "Pare, pabili ng piso." The
sale was consummated after payment and delivery when SPO1 Delos Santos handed "Manong" the marked 100-
peso bill, and "Manong" took out from his pocket and handed SPO1 Delos Santos a plastic sachet containing shabu.
From the moment SPO1 Delos Santos received the prohibited drug from "Manong," the illegal sale of the dangerous
drug was consummated.16 "Manong" was at once apprehended, and four more sachets of shabu were found in his
possession.

Having established that the illegal sale took place between the poseur-buyer and the seller, the prosecution likewise
presented the dangerous drug, i.e., the corpus delicti, as evidence in court. The illegal substance sold, including the
four other sachets recovered from the pocket of accused-appellant, was offered as evidence during the trial and
properly identified by the prosecution witnesses. The prosecution also accounted for the chain of custody of the
subject substances. From accused-appellant’s possession, police officers Delos Santos and Antonio seized the
sachets of shabu and turned them over to Police Investigator Moran who marked the pieces of evidence. Then,
Moran turned them over to the NPD crime laboratory for chemical analysis, where Police Inspector Juanita Sioson, a
Forensic Chemical Engineer, found the white crystalline granules contained in five heat-sealed transparent plastic
sachets to be positive for methylamphetamine hydrochloride, a dangerous drug.

IN VIEW WHEREOF, the petition is DENIED and the Decision and Resolution of the Court of Appeals in CA-G.R.
CR-H.C. No. 00245, dated April 29, 2005 and September 13, 2005, respectively, are AFFIRMED.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna, Leonardo-de Castro, JJ., concur.

THIRD DIVISION

[G.R. No. 106916. September 3, 1999]

MASAGANA CONCRETE PRODUCTS, KINGSTONE CONCRETE

PRODUCTS and ALFREDO CHUA, petitioners, vs. NATIONAL
LABOR RELATIONS, COMMISSION and RUBEN
MARIAS, respondents.

DECISION
GONZAGA-REYES, J.:
 This petition for certiorari assails the Decision[1] dated July 21, 1992 and the Resolution
dated August 25, 1992 of herein public respondent National Labor Relations Commission
(NLRC) which affirmed with modification the Labor Arbiters Decision[2] dated June 15, 1991,
ordering herein petitioners to reinstate private respondent, Ruben Marias, without loss of
seniority rights and privileges with full backwages. The assailed Decision of the NLRC deleted
the award of attorneys fees in favor of the private respondent Ruben Marias for lack of sufficient
basis.
The antecedents are summarized by the Solicitor General as follows:

Petitioners Masagana Concrete Products and Kingstone Concrete Products are

licensed business establishments owned and managed by petitioner Alfredo Chua.

Sometime in May 1983, Masagana Concrete Products hired private respondent Ruben
Marias as truck helper at the compensation of P107.00 a day. The name of the
establishment was later changed to Kingstone Concrete Products. Private respondent
worked continuously for petitioners until November 30,1990.

On November 30, 1990, Chua accused Marias of tampering a vale sheet and was
ordered to leave the business premises. Marias returned the next day but he was not
allowed to enter the premises of Masagana Concrete Products or Kingstone Concrete
Products. On December 3, 1990, he sent a letter to Chua requesting that he (Marias)
be allowed to return to work. This request was ignored by petitioners. Marias
discovered that he had been replaced by a certain Anton and that his (Marias) time
card was no longer in the rack (Records, p. 35).

On December 7, 1990, Marinas filed a complaint against petitioners before public

respondents Arbitration Branch, Region IV (docketed as NLRC Case No. RB-IV-12-
3534-90), for Unfair Labor Practice, Illegal Dismissal, Overtime Pay, Legal Holiday
Pay, Premium Pay for Holiday and Rest Day Service Incentive Leave, Violation of
P.D.s 525, 171, 1123, 1614, 1634, 1678, 851, 928, 1389, 1614 and 1715 (Records,
p.1).

On December 17, 1990, a copy of the Notification and Summons was sent to Alfredo
Chua, President/Manager, Masagana Concrete Products, Kingstone Concrete
Products, at Bo. Mayamot, Antipolo Rizal, notifying petitioners of the initial hearing
set on January 16, 1991 before Labor Arbiter Ambrosio B. Sison (Records, p. 2). The
registry return card for the Notification and Summons shows that it was received by
petitioners on January 8, 1991 (Records, p. 7).

On January 16, 1991, the hearing date, only respondent Marias appeared before the
Labor Arbiter. Assisted by counsel, Marias filed his Sinumpaang Salaysay. The
hearing was reset to February 1, 1991 (Records, p. 11). Petitioners were notified by
registered mail of the February 1, 1991 hearing on January 30, 1991 (Records, p. 14).

On February 1, 1991, no one appeared for petitioners. On that date, Marias requested
that he be allowed to file his position paper on February 21, 1991, the new hearing
date (Records, p. 13). On February 7, 1991, a copy of Notice of Hearing was sent to
petitioners (Records, p. 15).

On February 15, 1991, Marias filed his Position Paper without Annexes (Records, pp.
16-29). On February 21, 1991, he submitted the Annexes to his Position Paper
(Records, pp. 30-36).

At the hearing set on February 21, 1991, only Marias appeared before the Labor
Arbiter, although petitioners were notified thereof on February 20, 1991 (Records, p.
40). The hearing of the case was reset to March 11, 1991. On page 38 of the record is
a Notice of Hearing addressed to MR. ALFREDO CHUA, President/Manager,
Masagana Concrete Products, Kingstone Concrete Product, Bo. Mayamot, Antipolo,
Rizal and informing him of the hearing set on March 11, 1991 at 10:00 a.m. The
Notice of Hearing warned Chua that: Failure on your part to attend this scheduled
hearing on the same (shall) be conducted ex-parte after which the case (shall be)
submitted for resolution. Also written on the face of the Notice of Hearing are the
words: REG. MAIL ON 2.21-91 and an unidentified initial, although there is no
registry receipt or registry return card for the notice.

On March 11, 1991, petitioners again failed to appear before the Labor Arbiter, so that
the case was submitted for resolution.[3]

The labor arbiter deemed herein petitioners non-appearance as a continued failure on their
part to controvert the facts as claimed by private respondent, Ruben Marias. Thus, on June 15,
1991 it rendered a decision finding the dismissal unjustified. The dispositive portion of the
decision reads:

Considering the evidence adduced by complainant and finding the action set forth in
the complaint to have been sufficiently established, judgment is hereby rendered
ordering respondents:

1. To reinstate complainant to his former position without loss of seniority rights and
privileges with full backwages computed from the time the same was withheld from
him on November 30, 1990 up to the date of this decision or in the total amount
of P51,467.00 (P107.00 x 26 working days = P2,782.00 monthly wage x 18
months). This backwages shall continue to be paid by the respondents until
complainant is actually reinstated to his former position or at the option of
respondents reinstate him in the payroll.

2. To pay complainant attorneys fees in the amount equivalent to 10% of the

backwages.

The monetary award contained herein is a joint and several liability of respondents
Masagana Concrete Products, Kingstone Concrete Products or Alfredo Chua.

3. Claims for moral and exemplary damages are dismissed for lack of merit, while the
charge for unfair labor practice, and other monetary claims are, as they are, hereby
dismissed for having withdrawn.

SO ORDERED.[4]

Aggrieved by the aforequoted Decision, the petitioners appealed to the NLRC on July 19,
1991.
On July 21, 1992, the NLRC rendered a decision in favor of private respondent, Ruben
Marias, the dispositive portion of the decision reads, to wit:

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED,

with modification deleting the award of attorneys fees.

SO ORDERED.[5]

On August 13, 1992, private respondent, Ruben Marias filed a Motion for Reconsideration,
with respect to the deletion of the award of attorneys fees. Herein petitioners also filed a Motion
for Reconsideration arguing that they were deprived of their constitutional right to due process of
law; that the labor arbiter failed to acquire jurisdiction over their person; and that they have a
meritorious defense.
On August 25, 1992, the NLRC denied both motions for reconsideration for lack of merit.
 On October 5, 1992, herein petitioners appealed to this Court by petition for certiorari under
Rule 65 of the Rules of Court assailing the aforesaid resolutions of the NLRC on grounds of
grave abuse of discretion amounting to lack of excess of jurisdiction and raising the following
assignment of errors:
I

THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF

DISCRETION IN FINDING THAT THE PETITIONERS WERE NOT DEPRIVED
OF DUE PROCESS.
II.

THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF

DISCRETION IN NOT FINDING THAT THE LABOR ARBITER NEVER
ACQUIRED JURISDICTION OVER THE PERSONS OF THE PETITIONERS.
III

THE RESPONDENT COMMISSION SERIOUSLY ERRED IN THE

APPLICATION OF SEC. 4 (a), RULE III OF THE NEW RULES OF PROCEDURE
OF THE NLRC.
IV

THE RESPONDENT COMMISSION ERRED IN NOT FINDING THAT THE

PETITIONERS HAVE A MERITORIOUS CASE NECESSITATING THE
SETTING ASIDE OF THE DECISION OF THE LABOR ARBITER.

In brief, petitioners allege that both decisions of the labor arbiter and herein public
respondent NLRC are void for the following reasons, to wit: (1) that there was no valid service
of summons; (2) that the labor arbiter did not acquire jurisdiction over their persons; and (3) that
private respondent, Ruben Marias abandoned his job, thus, he was not illegally dismissed.
In this case, the service of summons or notices was governed by Sections 4 and 5 of Rule IV
of the then Revised Rules of Procedure of the National Labor Relations Commission [6] which
took effect fifteen (15) days after its approval on November 5, 1986. They respectively provide:

Section 4. Service of notices and resolutions.--a) Notices or summons and copies of

orders, resolutions or decisions shall be served personally by the bailiff or the duly
authorized public officer or by registered mail on the parties to the case within five
(5) days from receipt thereof by the serving officer; Provided that where a party is
represented by counsel or authorized representative, service shall be made on the
latter.

xxx.

Section 5. Proof and completeness of service.-- The return is prima facie proof of the
facts indicated therein. Service by registered mail is complete upon receipt by the
addressee or his agent.

Thus, under the NLRC Rules of Procedure, summons on the respondent shall be served
personally or by registered mail on the party himself. Such service is deemed completed upon
receipt by the addressee or his agent.
Herein petitioners do not deny the fact that the notices or summons served upon them by
registered mail were correctly addressed at their business address. However, they claim that even
though said notices or summons were correctly sent by registered mail to their business address
these notices or summons were received by impostors or persons unknown to them. As a result,
petitioners assert that they were not properly served with notices or summons in the scheduled
hearings before the labor arbiter, and the labor arbiter did not acquire jurisdiction over their
persons. They were not afforded due process when the labor arbiter found them liable for illegal
dismissal.
Petitioners contention has no merit.
Well-settled is the rule that in quasi-judicial proceedings, before the NLRC and its
arbitration branch, procedural rules governing service of summons are not strictly
construed. Substantial compliance thereof is sufficient.[7] The constitutional requirement of due
process with respect to service of summons, only exacts that the service of summons be such as
may reasonably be expected to give the notice desired.[8] It is also a fundamental rule that unless
the contrary is proved, official duty is presumed to have been performed regularly and judicial
proceedings regularly conducted.[9] This presumption of the regularity of the court proceedings
includes presumptions of regularity of service of summons.[10] It is therefore incumbent upon
herein petitioners to rebut these presumptions with competent and proper evidence. For the
return is prima facie proof of the facts indicated therein.[11]
The records disclose that:

1) Notification and summons was sent to respondent Alfredo Chua by registered mail
and there is an illegible signature in the Registry Return Receipt (p. 7, Rollo); 2) The
Notice of Hearing for February 1, 1991 was sent by registered mail to respondent
Chua and the Registry Return Receipt (p. 14, Rollo) was signed by one Ragayunal;
3) a xerox copy of the demand letter (p. 31, Rollo) of counsel for complainant was
sent to respondent Alfredo Chua and the Registry Return Receipt was signed by
someone whose signature was illegible; 4) a xerox copy of complainants Sinumpaang
Salaysay (p. 33, Rollo) was sent to respondent Alfredo Chua and the Registry Return
Receipt was signed by one Freddie Tolentino; 5) The notice of hearing for March 11,
1991 was sent by registered mail to respondent Alfredo Chua and the Registry Return
Receipt (p. 40, Rollo) was signed by one Jonathan; x x x.[12]

In the instant case, the bare assertion of the petitioners that the summons and/or notices of
the scheduled hearings sent by registered mail were received by impostors or persons unknown
to them, requires substantiation by competent evidence. Mere allegation is neither equivalent to
proof[13] nor evidence.[14] The registry return receipt states that a registered article must not be
delivered to anyone but the addressee, or upon the addressees written order.[15] Thus, the persons
who received the notice were presumably able to present a written authorization to receive the
same and we can assume that the notices were duly received in the ordinary course of events. It
is a legal presumption, born of wisdom and experience, that official duty has been regularly
performed; that the proceedings of a judicial tribunal are regular and valid, and that judicial acts
and duties have been and will be duly and properly performed.[16] The burden of proving the
irregularity in official conduct, if any, is on the part of petitioners who in this case clearly failed
to discharge the same.
Petitioners had the opportunity to substantiate their claim that the notices were received by
impostors or unknown persons by submitting necessary supporting documents in their
memorandum of appeal which they seasonably filed before the respondent NLRC. Article 223
(d) of the Labor Code allows an appeal from a decision of the Labor Arbiter if serious errors in
the findings of facts are raised which would cause grave or irreparable injury to the appellant.
The NLRC, in the exercise of its appellate powers, is authorized to correct, amend or waive any
error, defect or irregularity in substance or in form.[17]Thus, this Court has allowed evidence to be
submitted on appeal,[18] emphasizing that, in labor cases, technical rules of evidence are not
binding.[19] Petitioners failed to adduce their evidence on appeal.
Notably, notwithstanding the allegation that the notices have not been received, petitioners
actually received a copy of the labor arbiters adverse decision and then seasonably pleaded their
case before the NLRC despite the fact that nobody purportedly signed or received the registry
return receipt[20] in their behalf. As aptly opined by public respondent NLRC, viz:

To our mind, all the foregoing notices were duly received by respondents or their
representatives but they wittingly or unwittingly chose to ignore the same and they
now complain of lack of due process after they lost the case below by their own
default.
Whether or not respondents deliberately ignored the summons and notices or whether
those who received the same in their behalf failed to deliver the same because of lack
of instruction or negligence is of no moment.

What matters is that the summons and notices as evidenced by the Registry Return
Receipts did reach respondent Chuas business address so as to enable this
Commission to acquire jurisdiction over respondents.

A contrary view would enable parties to resist our jurisdiction by mere manifestation
that summons and notices by registered mail were received by unknown persons or
impostors.

Besides, the disputable presumption that notices were regularly sent and received in
the ordinary course of events has not been overcome by respondents mere allegations
of receipt of notices by impostors or persons unknown.[21]

We agree that there was sufficient compliance with the procedure for service of summons and/or
notices of the scheduled hearings upon the petitioners. The return is prima facie proof of the facts
indicated therein and service by registered mail is deemed completed even only upon receipt by
an agent of the addressee.
It must be pointed out that the determination of whether the persons who actually signed the
proof of return were employees, impostors or persons unknown to petitioners is a factual issue
clearly beyond the ambit of a petition for certiorari. A petition for certiorari under Rule 65 of
the Rules of Court does not include a correction of its evaluation of the evidence upon which the
proper labor officer or office based on his or its determination but is confined to issues of
jurisdiction or grave abuse of discretion.[22] We find no basis from the records to hold that the
NLRC went beyond its jurisdiction or gravely abused its discretion when it rejected the claim of
petitioners that they were never served any copy of the notices and summons of the scheduled
hearings before the Labor Arbiter and that the persons who allegedly signed the registry return
cards correspondingly attached thereto were total strangers to herein petitioners.
Equally without merit is herein petitioners contention that they were not afforded due
process when the Labor Arbiter rendered its decision based only on the evidence adduced by
private respondent Ruben Marias. The authority of the labor arbiter to render judgment based
solely on the evidence adduced by a complainant is explicitly sanctioned by then Section 10 [23] (b
& c) of Rule VII of the Revised Rules of Procedure of the NLRC, which provides:

Section 10. Non-appearance of Parties.-

a) x x x.

b) In case of non-appearance by the respondent, despite due notice, during the

complainants presentation of evidence, the complainant shall be allowed to present
evidence ex-parte, subject to cross-examination by the respondent, where proper, at
the next hearing. Upon completion of such presentation of evidence for the
complainant, another notice of hearing for the reception of the respondents evidence
shall be issued, with a warning that failure of the respondent to appear shall be
construed as submission by him of the case for resolution without presenting his
evidence.

c) In case of unjustified non-appearance by the respondent during his turn to present

evidence, despite due notice, the case shall be considered submitted for decision on
the basis of the evidence so far presented.

In Helpmate Inc. v. NLRC citing M. Ramirez Industries and/or Manny Ramirez v. Secretary
of Labor, et al., 266 SCRA 111, the Court stated:

The essence of due process is that a party be afforded reasonable opportunity to be

heard and to submit any evidence he may have in support of his defense. In
administrative proceedings such as the one at bench, due process simply means the
opportunity to explain ones side or the opportunity to seek a reconsideration of the
action or ruling complained of.[24]

Herein petitioners failure to present their defense was due to their neglect to participate in the
proceedings at the arbitration level. In any event, petitioners were able to seek the
reconsideration of the adverse decision of the Labor Arbiter when they filed their timely appeal
before the NLRC. A party who has availed of the opportunity to present his position cannot
claim to have been denied due process.[25] Despite such opportunity, petitioner failed to
convincingly establish that their defense is meritorious.
As regards the issue on illegal dismissal, petitioners contend that private respondent Ruben
Marias was not illegally dismissed, rather private respondent Ruben Marias abandoned his job by
simply failing to work starting December 1990.
The contention is without merit. Abandonment as a just and valid ground for dismissal
requires the deliberate, unjustified refusal of the employee to resume his employment.[26] Mere
absence or failure to report for work, after notice to return, is not enough to amount to such
abandonment.[27] For a valid finding of abandonment, two factors must be present, viz: (1) the
failure to report for work or absence without valid or justifiable reason; and (2) a clear intention
to sever employer-employee relationship,[28] with the second element as the more determinative
factor being manifested by some overt acts.[29] In abandonment, there must be a concurrence of
the intention to abandon and some overt acts from which an employee may be deduced as
having no more intention to work.[30] The intent to discontinue the employment must be shown by
clear proof that it was deliberate and unjustified[31] a fact that herein petitioners failed to show.
As gathered from the factual findings of the labor arbiter, Marias absence from work was
not without valid or justifiable reason. He was prevented from returning to work after he was
accused by petitioner Alfredo Chua, owner and manager of both Masagana Concrete Products
and Kingstone Concrete Products, of tampering a vale sheet on November 30, 1990. On the next
day, he was not allowed entry. In his letter dated December 3, 1990 Marias pleaded to be
allowed to return to work, but this was not heeded. No investigation was conducted to determine
his liability in connection with the tampering incident and Marias was not allowed any
opportunity to controvert the accusation against him. Surprisingly, it was only after eight (8)
days or on December 15, 1990, when the complaint for illegal dismissal had already been filed
on December 7, 1990, that petitioner Chua advised him to report for work provided that the
former admit in writing his mistake in a vale sheet. While there was no formal termination of his
services, Marias was constructively dismissed when he was accused of tampering the vale sheet
and prevented from returning to work. Constructive dismissal does not always involve forthright
dismissal or diminution in rank, compensation, benefit and privileges.[32] For an act of clear
discrimination, insensibility, or disdain by an employer may become so unbearable on the part of
the employee that it could foreclose any choice by him except to forego his continued
employment.[33] In this case, Marias had to resign from his job because he was prevented from
returning back to work unless he admitted his mistake in writing and he was not given any
opportunity to contest the charge against him. It is a rule often repeated that unsubstantiated
accusation without anything more are not synonymous with guilt and unless a clear, valid, just or
authorized ground for dismissing an employee is established by the employer the dismissal shall
be considered unfounded.[34]
The filing of the complaint for illegal dismissal on December 7, 1990, or six (6) days after
his alleged abandonment negates the charge of abandonment. The fact that Marias eventually
resigned from his job and is presently employed in another company[35] does not run counter to
this Courts finding that no intent to abandon or sever the employer-employee relationship was
clearly established to support the claim of a valid and justified dismissal. It is highly illogical for
an employee to abandon his employment and thereafter file a complaint for illegal
dismissal.[36] Abandonment is not compatible with constructive dismissal.[37]
Even assuming that there was abandonment, which is a just cause for dismissal, there was
non-compliance with the statutory requirement of notice. The law requires that the employer
must furnish the worker sought to be dismissed with two written notices before termination of
employment can be legally effected, to wit: 1) notice which apprises the employee of the
particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice
which informs the employee of the employers decision to dismiss him.[38] Thus, if there is truth to
the claim that Marias abandoned his job, petitioners should have formally notified Marias that
such abandonment is the cause of his termination from service. No written notice was given to
private respondent that his services were being terminated and there was violation of his right to
security of tenure and his right to due process.[39] Our ruling in Premier Development Bank, et al.
v. NLRC and Teodoro Labanda[40] is instructive:

Granting arguendo that there was abandonment in this case, it nonetheless cannot be
denied that notice still has to be served upon the employee sought to be dismissed, as
the second sentence of Section 2 of the pertinent implementing rules of the Labor
Code explicitly requires service thereof at the employees last known address. While it
is conceded that it is the employers prerogative to terminate the services of an
employee, especially when there is a just cause therefor, the requirements of due
process cannot be taken lightly. The law does not countenance the arbitrary exercise
of such a power or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee.

The failure to comply with the requirement of procedural due process taints herein
petitioners dismissal with illegality. In all termination cases, strict compliance by the employer
with the demands of both procedural and substantive due process is a condition sine qua non for
the same to be declared valid.[41] Marias is thus entitled to reinstatement as well as full
backwages, as decreed by public respondent for having been illegally dismissed from
employment.
In connection with the foregoing, this Court notes petitioners claim in their Reply[42] dated
April 12, 1994 to Private Respondents Comment dated December 29, 1993, that both Masagana
Concrete Products and Kingstone Concrete Products have ceased operations due to losses since
March 1990 and December 24, 1992, respectively. However, whether the alleged business losses
sustained by petitioners affected the companys financial health so as to compel it to close shop is
a factual issue that should have been raised at the earliest possible time so that it could have been
properly litigated. Be that as it may, herein petitioners cannot exculpate itself from the
consequences of illegally dismissing an employee.
An illegally dismissed employee is entitled to: 1) either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and 2) backwages.[43] Backwages and
separation pay are distinct reliefs given to alleviate the economic damage suffered by an illegally
dismissed employee.[44] Hence, an award of separation pay in lieu of reinstatement does not bar
an award of backwages, computed from the time of illegal dismissal, in this case on November
30, 1990, up to the date of the finality of the Supreme Court decision, without qualification or
deduction.[45] Separation pay, equivalent to one months salary for every year of service, is
awarded as an alternative to reinstatement when the latter is no longer an option. Separation pay
is computed from the commencement of employment up to the time of termination, including the
imputed service for which the employee is entitled to backwages, with the salary rate prevailing
at the end of the period of putative service being the basis for computation.[46]
WHEREFORE, premises considered, the petition is hereby DISMISSED. The assailed
Resolutions of public respondent NLRC are hereby AFFIRMED with the MODIFICATION that:
In case reinstatement is no longer feasible, private respondent Ruben Marias shall be
entitled, in the alternative, to separation pay and backwages. The separation pay shall be
equivalent to one months salary for every year of service, a fraction of at least six (6) months
being considered as one whole year, computed from the commencement of employment up
to the time of termination, on November 30, 1990, including the imputed service for which the
employee is entitled to backwages, with the salary rate prevailing at the end of the period of
putative service being the basis for computation. The backwages shall be computed from the
time of illegal dismissal up to the date of the finality of the Supreme Court decision, without
qualification or deduction.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

Republic of the Philippines

 Supreme Court
Manila

SECOND DIVISION

RAMON R. OLBES and RICARDO G.R. No. 152082

R. OLBES,
Petitioners, Present:

PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,
CORONA,
- versus - AZCUNA, and
GARCIA, JJ.

Promulgated:
CHINA BANKING CORPORATION,
Respondent. March 10, 2006

x-----------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

Under consideration is this petition for review on certiorari to set

aside and reverse that portion of the Decision[1] dated January 31, 2002 of
the Court of Appeals (CA) in CA G.R. CV No. 56487 entitled China Banking
Corporation vs. Olbes, Ogilvy & Mather, Inc. (OO&M), Ramon R. Olbes and
Ricardo R. Olbes, holding herein petitioners Ramon R. Olbes and Ricardo R.
Olbes solidarily liable with OO&M on the loan obligation obtained by the
latter from respondent China Banking Corporation.

The CA recites the facts, as follows:

On four occasions in 1989 up to 1990, [herein respondent] China

Banking Corporation , as lender and [OO&M] as borrower entered into
loan agreements covered by promissory notes bearing numbers T-227,
T-228, T-229, T-230 and T-231 .

The promissory notes [PNs] contain identical provisions with a

few exceptions. The identical provisions material to the present case
include the escalation clause found in the 4thparagraph of each of the five
[PNs], , the name of Ramon Olbes with a signature appearing thereon as
agent of the borrower corporation, and the name of Ricardo Olbes which
was rubber stamped in the first 4 notes as co-maker.
 The material differences, on the other hand, concern the dates of
execution , the dates of maturity [of the notes], the amounts received
by [OO&M] on the 5 [PNs] (P200,000.00,P315,000.00, P700,000.00,
P100,000.00 and P200,000.00, respectively), and the interest rates
thereon per annum (19% for [PN] T-227, 24% for [PN] T-228 and 27%
for the 3 others).

To secure the payment of the [PNs], [petitioners] Ramon Olbes

and Ricardo Olbes executed on November 12, 1990 in favor of
[respondent bank] a suretyship agreement whereby they jointly and
severally undertook to pay upon maturity any and all obligations for
which the borrower corporation may then or thereafter be indebted to the
extent of one million pesos (P1,000,000) plus interests and attorneys
fees.

Initial payments on the [PNs] were made by [OO&M] and the

Olbeses. Since March 12, 1992, however, no further payments were
made by them, and by [respondent banks] computation, the 5 [PNs] had
outstanding balances of P88,000.00, P140,000.00, P407,500.00,
P52,400.00, P121,600.00 respectively or a total of P809,500.00 as of that
date, exclusive of interests and penalty charges. As demands for payment
proved futile, [respondent bank] filed a complaint for collection before
the Regional Trial Court (RTC) Branch 7 of Manila on December 2,
1992 against [OO&M] and the Olbeses.

The [OO&M] denied liability on the [PNs], claiming that it had

fully met its obligation and that the alleged balance came about due to
the unwarranted application of the escalation clause provided for in
paragraph 4 of each of the notes.

Both Olbeses denied any liability under the suretyship agreement,

they claiming that they signed it merely as officers of [OO&M] and that
its import was never explained to them by [respondent bank].

Ricardo Olbes also denied liability as co-maker, he claiming that

he was signing as an officer of [OO&M].

All the defendants denied liability on the penalty charges and

attorneys fees . They thus interposed a counterclaim for attorneys fees.
(Underscoring and words in bracket added.)

On September 12, 1998, in Civil Case No. 92-63676, the Regional Trial
Court of Manila, Branch 7, on the premise that Ramon Olbes is liable on
the promissory notes (PNs) based on the suretyship agreement as is
Ricardo Olbes who is furthermore personally liable as co-maker, rendered
judgment for respondent bank, as plaintiff a quo, and against OO&M and
the Olbeses, as defendants a quo.

Therefrom, herein petitioners and OO&M went on appeal to the CA

whereat their recourse was docketed as CA G.R. CV No. 56487.
 On January 31, 2002, the CA rendered the herein assailed Decision
affirming that of the trial court, particularly its disposition on the solidary
liability of herein petitioners Ramon R. Olbes and Ricardo R. Olbes, with the
modification of disallowing the application by the respondent bank of the
escalating interest rate on the loan transactions. In full, the dispositive
portion of the CA Decision reads:

ACCORDINGLY, judgment is hereby rendered AFFIRMING the

appealed decision with MODIFICATION in accordance with the
foregoing discussions.

As modified, the judgment reads as follows: Defendant-appellant

corporation, as maker of promissory notes Nos. T-227, T-228. T-229 and
T-230, defendant-appellant Ricardo Olbes, as co-maker thereof, and
appellants Ricardo Olbes and Ramon Olbes as sureties, are hereby
ordered to pay plaintiff-appellee jointly and severally:

1. On the first cause of action, P88,000.00

representing the unpaid principal of the promissory
note No. T-227 (Exhibit A) plus 19% interest per
annum from March 12, 1992, with deductions on the
said unpaid principal corresponding to the amounts
included therein by escalating the interest rates;

2. On the second cause of action, P140,000.00

representing the unpaid principal of promissory note
No. T-228 (Exhibit B) plus 24% interest per annum
from March 12,1992, with deductions on the said
unpaid principal corresponding to the amounts
included therein by escalating the interest rates;

3. On the third cause of action, P407,500.00

representing the unpaid principal of promissory not
No. T-229 (Exhibit C) plus 27% interest per annum
from March 12, 1992, with deductions on the said
unpaid principal corresponding to the amounts
included therein by escalating the interest rates; and;

4. On the fourth cause of action, P52,400.00

representing the unpaid principal of promissory note
No. T-230 (Exhibit D) plus 27% interest per annum
from March 12, 1992, with deductions on the said
unpaid principal corresponding to the amounts
included therein by escalating the interest rates;

Defendant-appellant corporation, as maker of

promissory note No. T-231, and defendants-
appellants Ricardo and Ramon Olbes as sureties
thereof, are also hereby ordered to pay jointly and
severally plaintiff-appellee; and

5. On the fifth cause of action, P121,600.00 representing

the unpaid principal of promissory note No. T- 231
plus 27% interest per annum from March 12, 1992,
with deductions on the said unpaid corresponding to
 the amounts included therein by escalating the
interest rates.[2]

Inasmuch as the assailed decision sustained their solidary liability

with, for the loan obligation of, OO&M, petitioners have interposed the
instant recourse, ascribing to the CA the commission of the following
errors, viz:

1. In holding petitioners liable retroactively for the loan obligations of

OO&M under the surety agreement.

2. In holding petitioner Ricardo Olbes liable on 4 of the subject

promissory notes as co-maker based on a mere title of co-maker
rubber stamped under his name on the said promissory notes
despite the absence of any provision showing him to have
understood that he was affixing his signature as such.[3]

The petition is without merit.

Petitioners disclaim, at the outset, liability on the PNs on the basis of

the suretyship agreement they executed on November 12, 1990 after
the execution of the last promissory note on January 23, 1990. To them,
their undertaking under the suretyship agreement cannot be made to cover
past transactions, such as the five promissory notes in question.

Petitioners posture is valid to a degree. It bears to point out,

however, that the rule on the retrospective application of a suretyship
agreement admits of exceptions. The Court referred to one in Willex Plastic
Industries, Corp. vs. CA.[4] There, we held that no liability attaches under a
contract of suretyship for defaults occurring before it is entered into unless
an intent to be so liable is indicated. Indeed, as we said in an old but still
very much applicable case of Bank of the Philippine Islands vs.
Foerster,[5] although a contract of suretyship is ordinarily not to be
construed as retrospective, in the end the intention of the parties, as
revealed by the evidence, is controlling. Put in another way, the rule that
bonds or other contracts of suretyship are ordinarily not to be construed as
retrospective must yield to the intention of the contracting parties as
revealed by the evidence, and does not interfere with the use of ordinary
tests and canons of interpretation which apply in regard to other
contracts.[6]
The specific suretyship agreement under consideration provides:

For and in consideration of the covenants hereinafter mentioned

and of the granting of credits, overdrafts, loans, discounts, trust receipts
and such further credit facilities as may from time to time be incurred
with the Creditor by the Principal(s), the Surety(ies)
hereby jointly and severally undertake, bind themselves and warrant to
the said Creditor, its successors or assigns the prompt payment at
maturity or on demand, as the case may be, of all overdrafts, promissory
notes, discounts, letters of credit, drafts, bills of exchange, promissory
notes, etc., without any further endorsements by the Surety(ies), for
 which the Principal(s) may now be indebted or may hereafter become
indebted to the Creditor.[7] (Emphasis added.)

As correctly observed by the CA, the Suretyship Agreement, as

couched, expressly covered both current (may now be indebted)
and future (may hereafter become indebted) loans of the principal. In net
effect, the agreement thus executed by petitioners was intended to secure
the payments of the amounts borrowed by and for which OO&M signed the
PNs in question.
Not to be overlooked is the fact that the Suretyship Agreement
expressly contemplated a solidary obligation, providing as it did that .the
surety(ies) hereby jointly and severally undertake, bind themselves and
warrant to the said Creditor. It is a cardinal rule that if the terms of a
contract are clear and leave no doubt as to the intention of the contracting
parties, the literal meaning of its stipulation shall control.[8] In the present
case, there can be no mistaking about petitioners intent, as sureties, to be
jointly and severally obligated with the principal maker of the notes in
dispute. As such sureties, Ramon Olbes and Ricardo Olbes are personally
liable under the suretyship agreement.

Petitioners next fault the CA for holding petitioner Ricardo Olbes

liable as co-maker on four (4) of the subject PNs on the basis of the
word co-makerrubber-stamped under his name on the said notes despite
the absence of any provision indicating that he understood that he was
affixing his signature in that capacity.

The Court is far from being convinced.

What the CA wrote on petitioner Ricardo Olbess posture respecting

the rubber-stamping angle reads:

And so is the finding of the court a quo that appellant Ricardo

Olbes is personally liable as co-maker of 4 of the 5 promissory notes.
Said appellants denial of personal liability upon the ground that the word
co-maker was merely stamped and not printed as are the rest of the
wordings of the promissory notes and that it was stamped arbitrarily
does not persuade. It is presumed that private transactions have been fair
and regular (Section 3 (p), Rule 131, Revised Rules of Court). It is also
basic in evidence that he who alleges has the burden of proving his
allegation. Appellant (i.e. Ricardo Olbes), therefore, had the burden of
proving that the word co-maker was rubber stamped unfairly, irregularly
and arbitrarily. But the record does not support his claim. On the
contrary, plaintiff-appellees witness Jacqueline Azarcon testified, and
appellant Ricardo Olbes failed to refute, that the promissory notes were
stamped before they were given to appellants for their
[9]
signature. (Emphasis in the original)

Having affixed his consenting signature in a contract with full

knowledge of its terms and conditions, petitioner Ricardo Olbes is
precluded from asserting, as he presently does, that he acted under a
misapprehension or in ignorance of the legal effect of the contract, or the
 undertaking he assumed thereunder. He, just like his co-petitioner, Ramon
Olbes, does not appear to be unlettered. The trial court in fact described
both petitioners as intelligent men, and top officers of a corporation which
has 200 affiliates worldwide,[10] Being an experienced businessman,
doubtless routinely dealing with commercial papers and documents passing
his table, petitioner Ricardo Olbes knew, or at least presumed to know, the
import of the documents he executed as co-maker. He cannot be heard on
his allegation of not knowing the legal effect of what he was entering into
on the pretext that respondent bank failed to inform him about such detail.
It cannot be over-emphasized that it behooves every contracting party to
learn and know the contents of a document before he signs and delivers it.

If blame has to be assigned, the faulting finger should be pointed at

petitioner Ricardo Olbes, who apparently did not undertake the usual due
diligence in the pursuit of his business concerns. Had he done so, he would
have easily discovered that he was signing the action documents in
question either as a surety and/or co-maker. An error so patent and
obvious that nobody could have made it, or one which could have been
avoided by ordinary prudence, cannot be invoked by the one who made it
in order to evade liability, let alone annul a contract.[11]

Lastly, petitioner Ricardo Olbess lament about the word co-

maker being stamped, instead of being typed or printed, thus indicating,
according him, an insertion or intercalating
situation, need not delay us long. Irregular or fraudulent
stamping is obviously Ricardo Olbess thesis. But, as found by the CA, the
PNs were stamped before they were presented to Ricardo Olbes for his
signature, a reality arguing against the notion of
fraudulent dealing on the part of the respondent bank. Apart from
this consideration, the appellate court added, no evidence has been
adduced to overturn the presumption that private transactions have been
fair and regular. Needless to stress, the
categorical factual conclusion of the CA ought not to be disturbed in this
recourse. For, it is not this Courts function to review, examine, evaluate or
weigh anew the probative value of the evidence presented below,[12] save
for the most compelling and cogent reasons.[13] The exceptional
circumstance does not presently obtain.

WHEREFORE, the instant petition is DENIED, and the assailed CA

decision dated January 31, 2002 is AFFIRMED.

Costs against petitioners.

SO ORDERED.

SECOND DIVISION

CAPITOL WIRELESS, INC. G.R. No. 169016

Petitioner,
Present:
 QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, Jr., JJ.
Promulgated:
January 31, 2007
CARLOS ANTONIO BALAGOT,
Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Petitioner Capitol Wireless, Inc. (Capwire) hired respondent, Carlos Antonio
Balagot (Balagot), as collector on September 16, 1987. As Balagots duties required
him to work outside of the office, Capwire assigned to him a motorcycle as a
service vehicle, for which it shouldered expenses for gasoline and maintenance.

At around 3:35 p.m. of May 9, 2000, the director of Capwires Human

Resource Department (HRD) saw, to his surprise, Balagot at the Head Office at
Paseo de Roxas, Makati of the China Banking Corporation (China Bank) with
which Capwire had no business relations. It was thereupon discovered that Balagot
had been rendering services to China Bank and that since 1992, Balagot had been
concurrently employed with Contractual Concepts, Inc. (CCI), a local manpower
company, which assigned him to render messengerial services to China Bank in the
same year.

As Capwire HRD director recommended the immediate termination of the

services of Balagot on the ground of grave misconduct and willful breach of trust
and confidence,[1] the HRD sent on May 10, 2000 a memorandum to Balagot
reading:

A report was received this morning from HRD for grave

misconduct on your part. It was found out that you are employed with
Contractual Concepts, Inc. as a motorized messenger serving their
client, China Banking Corp. In view of this, explain within twenty
four (24) hours why no disciplinary action should be taken against
you for this matter.[2]

In an undated handwritten letter-reply, Balagot admitted the charge against

[3]
him.

An administrative hearing was thus conducted on May 18, 2000 during

which Capwire presented 1) a certification of Balagots employment with CCI,
signed by its president and general manager, stating that Balagot had been assigned
to China Bank since December 8, 1992;[4] 2) a cash voucher in favor of Balagot
issued by CCI reflecting a loan amounting to P2,000;[5] and 3) Balagots payslip
from CCI for the period April 1-15, 2000.[6]

Balagot admitted that simultaneously with his employment as a collector for

Capwire, he had been performing messengerial duties to China Bank on a part time
basis.[7]

On May 22, 2000, Capwire informed Balagot that he was found guilty of
grave misconduct, resulting in the loss of trust and confidence in him, and that he
was dismissed on even date.[8]

Balagot thereafter filed on August 4, 2000 a complaint for illegal dismissal

against Capwire and its president Epifanio Marquez (Marquez) before the National
Labor Relations Commission (NLRC).[9] The case, docketed as NLRC NCR (S)
Case No. 30-08-03099-00, was raffled to Labor Arbiter Potenciano Caizares.[10]

By Decision of March 7, 2001, Labor Arbiter Caizares decided in favor of

Balagot in this wise:

After careful deliberation, We are of the opinion that as far as

the complainants working in another company while being an
employee of the respondent is not a just cause for dismissal under the
Labor Code, especially that there is no positive showing that the
complainant uses the company time of one employer in his service
with another or that the two employers are in competing
businesses. Indeed, an employee or worker has to resort to

the proper use of all his time and skills in order to survive in our
country at its economic crisis. Even in America this having-double-
jobs on moonshining is an accepted even encouraged system. On the
other hand, just as companies have to be innovative if they do not
desire to die, the workers should apply his imagination and judgment
wisely to augment his earnings for his family.

The respondents exclaimed that it is hard to believe that the

complainants employment with Contractual Concepts, Inc. does not
interfere with his work with them. However, a scrutiny of the record
does not show that the respondents has [sic] established a prima facie
case against the complainant for using their company time in working
with another. The respondents may indeed find it hard to believe that
the complainant has not been cheating them of company time, but
unless they can show us the evidence, We cannot affirm that
belief.[11](Underscoring supplied)

The Labor Arbiter thus ordered Capwire and Marquez to jointly and
severally[12] reinstate Balagot without loss of seniority rights and other
privileges;[13] and to pay Balagot full backwages and 10% of the monetary award
as attorneys fees, and should Balagot opt for separation pay in lieu of
reinstatement, to give him separation pay equivalent to one-half month pay for
every year of service, a fraction of six months being considered one whole year.[14]

On Capwires appeal, the NLRC reversed the Labor Arbiters decision,

holding as follows:
 There is no denying that taking on double job [sic] per se is not
illegal as extra income would go a long way for an ordinary worker
like herein complainant. The only limitation is where one job overlaps
with the other in terms of time and/or poses a clear case of conflict of
interest as to the nature of business of complainants two employers.

In the case at bar, the conflict of interest scenario is out of the

question since respondent Capitol Wireless (Capwire) business is very
different from Contractual Concepts Incorporated. The problem,
however, is as to time and performance of duty. With respondent
CAPWIRE complainant works as a collector from 8:00 A.M. to 5:00
P.M. On the other hand, his job at Contractual Concept is as a
messenger assigned at China Bank. As a messenger, we do not
believe that hell be performing his task after 5:00 P.M. as by then all
private offices are closed. In fact, Bank closes at 3:00 PM. This being
so, it is highly improbable that in the exercise of a performance of his
work with Contractual Concept, the same will not eat up or use part or
portion of his official time as collector with herein respondents. So
that while earning his salary with respondent from 8:00-5:00 PM as
messenger, he was also being paid as messenger by the other
company. In which cases, respondent company has all the right and
reason to cry foul as this is a clear case of moonlighting and using
the companys time, money andequipment to render service to
another company. A classic case of wanting to have his cake and eat
it too. A situation which we simply cannot countenance. Apropos
from evidence on records it is clear that complainant was guilty of
violating the company rules and regulations resulting into lost [sic] of
trust and confidence. He was therefore lawfully and rightfully
separated from service for cause and with due process.[15] (Emphasis
and underscoring supplied)

The NLRC accordingly dismissed Balagots complaint.

On Balagots Petition for Certiorari, the Court of Appeals, by Decision[16] of

May 31, 2005, holding that Capwire failed to prove that Balagot was dismissed for
just cause, reversed the decision of the NLRC and reinstated that of the Labor
Arbiter. The Court of Appeals absolved Capwire president Marquez of solidary
liability with Capwire, however.[17]

Its Motion for Partial Reconsideration[18] having been denied,[19] Capwire

filed the instant Petition for Review on Certiorari, raising the issue of whether or
not the Honorable Court of Appeals committed manifest error in holding that
respondent was illegally dismissed, thus, totally disregarding the evidence on
record, in violation of the Labor Code as amended, and the revised rules of
evidence.[20]

In his Comment, [21] Balagot reiterates his argument that his job at CCI did
not interfere with his job at Capwire, maintaining that he performed his tasks for
CCI only after office hours. To bolster his argument, he asserts that his
performance at Capwire was always satisfactory and never went below average.[22]
 The petition is impressed with merit.

Capwires evidence, consisting of, among other things, its HRD directors
report that he saw Balagot at China Bank at 3:35 p.m. of May 9, 2000; Balagots
above-stated handwritten admission; the December 8, 1992 certification of
employment signed by CCIs president and general manager; the cash voucher in
favor of Balagot for a company loan from CCI; and Balagots payslip from CCI for
the period April 1-15, 2000, unmistakably indicate that from December 8, 1992 to
May 22, 2000, Balagot had been using Capwire time to perform service for another
company.

Balagots claim that he performed his tasks for CCI only after his office
hours with Capwire does not impress. As Capwire argues:

Under the Rules on Evidence, specifically Section 3, Rule 131,

the presumptions: that the ordinary course of business has been
followed and that things happened according to the ordinary course of
nature and the ordinary habits of life, are disputable presumptions that
can only be overcome by clear and preponderant evidence.

In this connection, it is of general knowledge that the banking

industry follows the ordinary working hours of 8:00 AM to 5:00
PM. Accordingly, an employee of a bank is expected to work from
eight in the morning to five in the afternoon. And, logically, since the
banking industry deals with businesses which observe the same
working hours, a bank has no use for an employee who can only be
of service to it after 5:00 oclock in the afternoon.

Now, since it is presumed, until contradicted that, the ordinary

course of business has been followed, and things happened according
to the ordinary course of nature and the ordinary habits of life, it
logically follows that petitioner performed his duties with China
Banking Corporation during office hours that is from 8:00 am to
5:00 pm. This presumption can be overcome only by clear and
preponderant evidence. However, the records of the case will clearly
show that respondent failed to present any proof to contradict the
same, hence, the presumption stands against him. Thus, it was a
highly erroneous conclusion for the Court of Appeals to have found
that there was no convincing evidence to prove that petitioner was
using the company resources of petitioner in rendering messengerial
services for China Banking Corporation x x x.

In the same manner, this Honorable Court can also take judicial
notice of the fact that banks, or any business establishment for that
matter, close its [sic] business transactions and operations at 5:00 in
the afternoon because this fact is of public/common knowledge. Thus,
it is respectfully submitted that there is no need to produce evidence
that indeed banks close its [sic] operations after 5:00 P.M.

Besides, respondent admitted in his petition, that his job with

petitioner was to be carried out from 9:00 a.m. to 5:00 p.m., Monday
through Friday. [Underscoring in the original] And, it has also been
established that banks carried its [sic] business operations
simultaneous with the petitioner. Undeniably, respondents work
schedule with China Banking Corporation conflicts with his work
 schedule with petitioner. Verily, as offices customarily close at 5:00
P.M., it would be impossible for respondent to have rendered his
services to China Banking Corporation only after office hours. .
.[23]

xxxx

Moreover, if respondents allegation is true that indeed he was

only rendering services to China Banking Corporation after 5:00
P.M., then why was he sighted by private respondents HR director
within the premises of the said bank at 3:35 pm in the
afternoon?[24] (Italics in original; emphasis and underscoring
supplied).

Furthermore, the minutes of the administrative hearing conducted by

Capwire on May 18, 2000 reflect the observations of Balagots superiors about his
shortcomings in the conduct of his duties as collector, to wit: failure to submit a
detailed report of all collections, incomplete collections, and delayed
collections.[25] These observations, which were not refuted, detract from Balagots
claim that his job with CCI did not interfere with his duties at Capwire.

Capwire having established, through substantial evidence, a prima facie case

of just cause to dismiss Balagot, the burden of evidence shifted to
Balagot.[26] Balagot failed, however, to controvert the same. This Court is thus
constrained to uphold his dismissal.

Verily, jurisprudence recognizes as a valid ground for dismissal of an

employee unauthorized use of company time, as Pepsi-Cola Distributors of the
Philippines, Inc. v. NLRC[27] holds:

[An employee] cannot serve himself and [his employer] at the

same time all at the expense of the latter. It would be unfair to
compensate private respondent who does not devote his time and
effort to his employer. The primary duty of the employee is to carry
out his employers policies. . . .[28] (Underscoring supplied),

and of company vehicle, as Soco v. Mercantile Corporation of Davao[29] holds:

. . . Petitioner avers that the damage inflicted on MERCO by his

activities due to his misuse of the company vehicle during working
hours did not hamper the smooth business operations of MERCO.

However, what should not be overlooked is the prerogative of

an employer company to prescribe reasonable rules and regulations
necessary or proper for the conduct of its business and to provide
certain disciplinary measures in order to implement said rules and to
assure that the same would be complied with. A rule prohibiting
employees from using company vehicles for private purpose without
authority from management is, from our viewpoint, a reasonable
one. This regulation cannot be faulted by petitioner because this is
proper and necessary even if only for an orderly conduct of MERCOs
business. From the evidence presented, petitioner twice used the
 company vehicle in pursuing his own personal interests, on company
time and deviating from his authorized route, all without permission.
x x x Certainly, to condone petitioners own conduct will erode the
discipline that an employer should uniformly apply so that it can
expect compliance to the same rules and regulations by its other
employees. Otherwise, the rules necessary and proper for
the operation of its business, would be gradually rendered ineffectual,
ignored, and eventually become meaningless.[30] (Underscoring
supplied)

WHEREFORE, the petition is GRANTED. The appealed decision of the

Court of Appeals is REVERSED and SET ASIDE, and the September 23,
2002 decision of the National Labor Relations Commission is REINSTATED.

SO ORDERED.

FIRST DIVISION

SPOUSES PEDRO AND PAZ G.R. No. 170563

SURTIDA,
Petitioners,
Present:
PANGANIBAN, C.J.,
Chairperson,*
- versus - YNARES-SANTIAGO,**
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

RURAL BANK OF MALINAO Promulgated:

(ALBAY), INC.,
Respondent. December 20, 2006

x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CV No. 52591 and its Resolution[2] denying the motion
for reconsideration thereon. The assailed decision reversed and set aside the
Decision[3] of the Regional Trial Court (RTC) of Legazpi City, Branch 7.

Antecedents
 On June 16, 1986, the spouses Pedro and Paz Surtida executed a real estate
mortgage over their 1,750 square meters residential land, located in Sto. Domingo,
Albay, in favor of the Rural Bank of Malinao (Albay), Inc. (Rural Bank). The deed
was executed as security for the payment of the P100,000.00 loan the spouses
Surtida had applied for.[4]The deed was filed in the Office of the Registry of Deeds
on August 12, 1986.

The spouses Surtida secured a loan of P149,500.00 from the Rural Bank
evidenced by a Promissory Note dated June 16, 1986.[5] On the same day, the
spouses received Cashiers Check Nos. 6947[6] and
6948[7] totalling P140,862.22. The loan was to mature on December 2, 1987.

On November 4, 1987, the spouses Surtida secured another loan in the

amount of P106,800.00 from the Rural Bank to mature on October 29, 1988.[8] The
spouses Surtida also received the net proceeds of their loan on the same day via
Cashiers Check No. 7641[9] as shown by their signatures at the dorsal portions
thereof.

The spouses Surtida failed to pay their loans. On August 31, 1989, they
executed a Dation in Payment over a 300 sq m undivided portion of their property
covered by T.D. No. 519, in payment of their P157,968.20 loan.[10] On January 5,
1990, the spouses Surtida executed another Dation in Payment in favor of the
Rural Bank over a portion of their property, located in Sto. Nio, Sto. Domingo,
Albay.[11]

In a letter dated January 14, 1993, the Rural Bank informed the spouses Surtida
that they were being given a preferential right to repurchase the property.[12] The
spouses Surtida rejected the offer.

On April 20, 1993, the Rural Bank demanded that the spouses Surtida vacate that
portion of Lot 1635 which the spouses Surtida had ceded to it. The spouses Surtida
rejected the Rural Banks demand, and even sent a letter dated May 6, 1993, where
they denied having received any loan from the bank. They further stated that the
note in the real estate mortgage and the dation in payment were simulated
contracts. They likewise demanded for a detailed statement of their loans.

This prompted the Rural Bank to file a complaint against the spouses Surtida for
unlawful detainer in the Municipal Trial Court (MTC).

For their part, the spouses Surtida filed a complaint against the Rural Bank in the
RTC of Legazpi City for the annulment of the promissory notes, real estate
mortgage, and dation in payment. They alleged that they had never secured any
loan from the bank; the said deeds were fictitious; and they were made to sign the
documents to enable it to avail of rediscounting facilities from the Central Bank of
the Philippines. They further stated that they never appeared before the notary
public, who appeared to have notarized the said documents. The spouses Surtida
prayed that, after due proceedings, judgment be rendered in their favor, thus:

WHEREFORE, it is prayed of this Honorable Court that the documents

known as Dacion En Pago xerox copies of which are hereto attached and
marked as ANNEXES A & B declared null and void and without any
force and effect and to condemn further the defendant to pay the
plaintiffs actual and moral damages in the amount of P200,000.00 plus
 exemplary damages the amount of which is left to the assessment of this
Honorable Court, and P50,000.00 attorneys fee exclusive of appearance
fee at P1,000.00 per appearance, and to pay the cost of the suit.

Plaintiffs further pray for whatever other relief and remedy that this
Honorable Court may deem just and proper under the premises.[13]

The case was docketed as Civil Case No. 8792. In its Answer to the complaint, the
Rural Bank specifically denied the material allegations of the spouses Surtida. It
averred that the loans of the spouses Surtida were never presented to the Central
Bank for rediscounting, since rediscounting of loans from rural banks were stopped
in 1984, and was renewed only in March 1991. It alleged that the complaint was
filed in retaliation to the complaint for unlawful detainer it had filed against them.

On January 25, 1996, the RTC rendered judgment in Civil Case No. 8792 in favor
of the spouses Surtida. The dispositive portion of the decision reads:

WHEREFORE, decision is rendered as follows:

1. The documents, Dations in Payment dated August 31,

1989 and January 5, 1990, referred to as Doc. No. 473, Page 97, Book
68, Series of 1989 notarized by Atty. Ireneo de Lumen (Exh. 8-A) and
Doc. No. 51, Page 12, Book 1, Series of 1990 notarized before Atty. Jose
Verches (Exh. B-9), respectively, are declared null and void, and without
force and effect;

2. The Promissory Notes dated June 16, 1986 and November 4,

1987 (Exhibits 1 and 2) and the Real Estate Mortgage dated June 16,
1986 (Exh. 6) and registered on August 12, 1986 which is referred to as
Doc. 1862, Page 74, Book 63, Series of 1986, all executed by the
Spouses Pedro Surtida and Paz Surtida, are likewise declared of no force
and effect; and

3. For lack of factual and legal basis, no award of damages.

No pronouncement as to cost.[14]

The trial court ruled that Rene Imperial, the majority stockholder of the Rural Bank
of Malinao and the Rural Bank of Sto. Domingo, Albay, took advantage of his
friendship with Pedro Surtida (also a stockholder). The latter was made to pre-sign
blank forms of promissory notes, real estate mortgage and dation in payment. The
proceeds of the original loan were remitted to the spouses Surtida on the same date
the promissory notes were executed, and even before the real estate mortgage was
registered in the Office of the Registry of Deeds. According to the trial court, this
was impossible because all these could not have been done in one day. It further
declared that the real estate mortgage was executed as security for the loan secured
by plaintiffs in 1982 in the total amount of P100,000.00 inclusive of
interest. However, the spouses Surtida adduced documentary evidence of their
payment of said loans. Hence, the trial court concluded, the real estate mortgage
and the subsequent dation in payment purportedly executed by the spouses Surtida
was without any consideration.
The court gave no probative weight to the documentary and testimonial evidence
of the bank that the spouses had received the proceeds of the two loans via signed
cashiers checks. It averred that the bank failed to furnish the spouses Surtida with a
breakdown of their loan account.[15] The trial court relied in the decision of the CA
in Ibay v. Mayon Savings and Loan Bank.[16]

The Rural Bank appealed the decision to the CA, alleging that:

1. THE LOWER COURT ERRED IN FINDING THAT THE

DEFENDANT RURAL BANK HAS CAUSED PLAINTIFFS TO PRE-
SIGN VARIOUS BLANK FORMS WHICH IS UNSUPPORTED BY
ANY EVIDENCE OF THE PLAINTIFFS BUT SOLELY ON THE
BASIS OF THE DEFENDANTS LOAN DOCUMENTS BEARING
THE SAME DATES AND THE RELEASE OF THE LOAN
PROCEEDS PRIOR TO THE REGISTRATION OF THE REAL
ESTATE MORTGAGE.

2. THE LOWER COURT ERRED IN FINDING THAT THE

DEFENDANT BANK FAILED TO PROVE CONSIDERATION FOR
THE PROMISSORY NOTES AND REAL ESTATE MORTGAGE
AND IN EVENTUALLY DECLARING THE DATION IN PAYMENT
TO BE LIKEWISE WITHOUT CONSIDERATION.

3. THE LOWER COURT ERRED IN NOT FINDING THAT

THE PLAINTIFFS VOLUNTARILY CONVEYED THEIR REAL
ESTATE PROPERTIES IN FAVOR OF THE DEFENDANT IN
PAYMENT OF THEIR LOANS.

4. THE LOWER COURT ERRED IN NOT AWARDING TO

THE DEFENDANT ITS CLAIM FOR DAMAGES AGAINST THE
PLAINTIFFS.[17]

On June 23, 2004, the CA rendered judgment reversing the decision of the
[18]
RTC. The fallo reads:

WHEREFORE, the foregoing considered, the appealed decision is

REVERSED and SET ASIDE and a new judgment is hereby rendered
declaring the two Dations in Payment dated August 31, 1989 and
January 5, 1990, the Real Estate Mortgage dated June 16, 1986 and
Promissory Notes dated June 16, 1986 and November 4, 1987 valid and
binding. No costs.

SO ORDERED.[19]

According to the appellate court, the spouses Surtidas claim that the assailed
documents were executed merely to accommodate the Rural Bank is belied by the
testimonial and documentary evidence on record. The spouses Surtida received the
net proceeds of the loans as shown by their signatures at the dorsal portion of the
cashiers checks. Moreover, plaintiffs-appellees executed the Dation in Payment
without any protestation. Under Section 9, Rule 130 of the Revised Rules of Court,
when the terms of an agreement have been reduced to writing, as in this case, it is
considered as containing all the terms agreed upon and there can be, between the
parties and their successors-in-interests, no evidence of such terms other than the
contents of the written agreement.[20]
 The spouses Surtida filed a Motion for Reconsideration,[21] which the
appellate court likewise denied in a Resolution dated September 29, 2004. The
decision of the CA became final and executory on November 3, 2004. Entry of
judgment was, thereafter, made of record in the book of entries of judgment.
On December 14, 2005, the spouses Surtida, now petitioners, filed the
instant petition, alleging that

The Honorable Court of Appeals decision dated June 23, 2004 and the
order denying the motion for reconsideration dated September 29,
2004 is contrary to law and the decision of the Honorable Supreme Court
issued in cases of similar nature and circumstances.[22]

Petitioners aver that the findings of the trial court on the credibility of the
witnesses and the probative weight of the evidence of the parties should have been
accorded respect. As between the findings of the trial court and that of the CA, the
former must prevail. Moreover, the trial courts Decision is supported by the
evidence.

In its comment on the petition, respondent avers that the Decision of the CA had
became final and executory as evidenced by the entry of judgment issued by the
CA and made of record in the book of entries of judgment. Hence, this Court has
no appellate jurisdiction over the Decision of the CA.

Petitioners averred in their Reply that respondent had sold Lot 1635-A to Fe
Orense for P130,000.00 on September 16, 2005 under a Deed of Absolute
Sale.[23] The property covered by T.D. No. 519 had also been sold to Maila
Fernandez. Thus, respondent has no right to appeal via petition for review
on certiorari.

The Issues

The Court is to resolve the following issues: (1) whether the Court has appellate
jurisdiction over the Decision and Resolution of the CA; and (2) whether the
Decision and Resolution of the CA are in accord with the evidence and the law.

The petition is denied.

Irrefragably, when petitioners filed their petition in this Court, the Decision
of the CA was already final and executory. The corresponding entry of
judgment[24] was already made of record. Clearly then, the decision of the appellate
court is immutable and unalterable. The rule is that a final judgment may no longer
be modified in any respect, even if the modification is meant to correct erroneous
conclusions of fact or law, and regardless of whether the modification is attempted
to be made by the court rendering it or by the highest court of the land. [25] The
doctrine is founded on considerations of public policy and sound practice that, at
the risk of occasional errors, judgments must become final at some definite point in
time.[26]

Even on its merits, the petition is destined to fail.

 Indeed, the general rule is that findings of facts of the trial court will not
ordinarily be disturbed by an appellate court absent any clear showing that the trial
court has overlooked, misunderstood or misapplied some facts or circumstances of
weight or substance which could very well affect the outcome of the case. It is the
trial court that had the opportunity to observe the witnesses manner of testifying,
their furtive glances, calmness, sighs or their scant or full realization of their
oaths.[27] Nevertheless, the higher court is not entirely precluded from reviewing
and reversing these findings if it is not convinced that they conform to the evidence
of record and to its own impressions of the credibility of the witnesses.[28]

We quote with approval the Decision of the CA:

Appellees aired their alleged misgivings in signing the foregoing

documents upon the alleged prodding of Rene Imperial that such were
only for the purpose of accommodating appellant in its effort to avail of
the rediscounting scheme of the Central Bank without receiving
consideration thereon. We find this strange. First, granted for the sake of
argument that the two promissory notes were executed by appellees for
the purpose of simulating a loan transaction, it is, however, difficult to
understand why they did not register any protest at all when appellant
sent them demand letters. Their natural reaction upon being made to pay
the alleged simulated loan would have been an irate refusal and
protestation. At that very instance, they should have immediately asked
the court for the nullification of the two promissory notes and the real
estate mortgage they executed for lack of consideration. Or else, written
the bank protesting the demand for payment if it had really no
basis. Surprisingly, they even executed two dacciones en pago on two
separate dates.

Second, the fact that appellees did not denounce appellants letters dated
January 14, 1993 giving them preferential right to repurchase the
property they conveyed by way of dacion en pago and that of April 20,
1993 foreclosing the option given to them to repurchase the subject
property and demanding for them to turn over the possession of the
subject property, is an indicia of the factual and truthful basis of the said
letters. Their belated letter of protest to appellant while bearing the date
of May 6, 1993 which was actually mailed on May 12, 1993, the date
when they received the summons in Civil Case S-170 for unlawful
detainer filed by appellant against them, does not manifest spontaneity
which should characterize a truthful and sincere protest if, indeed, the
letters have no factual basis.

Likewise, we cannot give weight to appellees claim that they did not
receive consideration for the loans they applied for. Their signatures at
the back of the cashiers checks are the clear proof that they received the
amount indicated therein. Jocelyn Da, appellants cashier, testified as
follows:

Atty. De Lumen:
Q In this Exhibit 3 which is made payable to the order of
Pedro Surtida, will you please tell this Honorable Court
who is this Pedro Surtida appearing as the payee in this
Cashiers check?
A He is Pedro Surtida.
Q Is he Pedro Surtida, one of the plaintiffs in this case?
A Yes, Sir.

Q It appears in this Exhibit 3 that the amount that was

released for the payee was P94,222.22. What is your
proof of showing that this amount supposedly to be
released to the payee Pedro Surtida was actually
received by him?
A The proof showing that he really received this amount is
the signature at the back of this check.

Q You said that the proof of showing that the payee Pedro
Surtida received the amount reflected therein is the
signature appearing at the dorsal side of the check,
which appears to be illegible, why do you say that this
is the actual signature of the payee?
A Because he affixed his signature in my presence.
xxxx
Q In this Exhibit 4 which is Cashiers Check No. 6948, it is
appearing that the payee of this cashiers check is a
certain Paz Surtida and the amount supposedly
involved in this check was P46,640.00. What is also
your proof of showing to the Honorable Court that
payee Paz Surtida received from you this amount
of P46,640.00?
A My proof that she received the amount is the signature
appearing on the back of this check.
xxxx
Atty. De Lumen:
Q Why do you know that the signature appearing on the
dorsal portion of this check was the signature of the
payee?
A Because Paz Surtida affixed her signature in my
presence.

Q Exhibit 5 which is Check No. 7641 was likewise

prepared, where the payee was supposedly Paz Surtida
and Pedro Surtida, in the amount of P103,062.00. What
is also your proof of showing to the Honorable Court
that the payee of this cashiers check received from you
the amount of P103,000.00 plus?
A My proof that they received are the signatures appearing
on the dorsal side of this check.
xxxx
Atty. De Lumen:
Q Why do you say that the signatures were the signatures
of the payee of the check?
A Because they affixed their signatures in my presence.
xxxx
Court:
 Cross examination.

Atty. Madrilejos:
With the permission of the Honorable Court.

Q In the previous loans obtained by Mr. Surtida, from the

defendant Rural Bank as testified to by you, did you
also issue cashiers check to the plaintiffs representing
the proceeds of those loans?
A Yes, Sir.

Q Do you have those return checks which represented the

proceeds of those loans?
A What return checks, Sir?

Q The checks which you issued which were encashed?

A The cashiers checks were prepared by me inside the bank
and that cashiers checks were encashed also in our
bank.
xxxx

Further, appellees are not unlettered persons without a modicum of

intelligence and unfamiliar with the transactions they entered into. They
are educated persons with nay a little experience in bank transactions
specifically in applying for loans as they have obtained several bank
loans previously. Thus, there is no question that appellees fully
understood the import and consequences of their acts when they signed
the two promissory notes, real estate mortgage and the two daciones en
pago on separate occasions.[29]

Petitioners bare denial that they had secured several loans from respondent on June
16, 1986 and November 4, 1987 cannot prevail over the testimonial and
documentary evidence presented in the trial court.

Under Section 3, Rule 131 of the Rules of Court, the following are
disputable presumptions: (1) private transactions have been fair and regular; [30] (2)
the ordinary course of business has been followed;[31] and (3) there was sufficient
consideration for a contract.[32] A presumption may operate against an adversary
who has not introduced proof to rebut it. The effect of a legal presumption upon a
burden of proof is to create the necessity of presenting evidence to meet the legal
presumption or the prima facie case created thereby, and which if no proof to the
contrary is presented and offered, will prevail. The burden of proof remains where
it is, but by the presumption, the one who has that burden is relieved for the time
being from introducing evidence in support of the averment, because the
presumption stands in the place of evidence unless rebutted.[33]

The presumption that a contract has sufficient consideration cannot be

overthrown by the bare uncorroborated and self-serving assertion of
petitioners that it has no consideration. To overcome the presumption of
consideration, the alleged lack of consideration must be shown by preponderance
of evidence.[34]Petitioners failed to discharge this burden.
 The contracts of Dation in Payment dated August 31, 1989 and January 5,
1990 were duly notarized. It was only after respondent filed its complaint for
unlawful detainer against petitioners that the latter filed their complaint in the
RTC. Obviously, the complaint of petitioners in the RTC was intended to derail the
complaint for unlawful detainer.

IN LIGHT OF ALL THE FOREGOING, the instant petition

is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.

EN BANC

RUDY A. PALECPEC, JR., G.R. No. 171048

Petitioner, Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,
- versus -
CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR. and

HON. CORAZON C. DAVIS
in her capacity as the NACHURA, JJ.
Regional Executive Director,
Department of Environment
and Natural Resources-
National Capital Region,
Manila,
Respondent. Promulgated:
 July 31, 2007

x-------------------------------------------------x

DECISION

PER CURIAM:

The petition before Us is an appeal by certiorari under Rule 45 of the

Revised Rules of Court of the following: (1) the Decision[1] dated 29 September
2005 of the Court of Appeals in CA-G.R. SP No. 90292 entitled, Corazon C. Davis v.
The Honorable Chairman of the Civil Service Commission, et al., finding valid the
removal from service of petitioner Rudy A. Palecpec, Jr. for being absent without
official leave (AWOL) for more than 30 days; and (2) the Resolution[2] dated 10
January 2006 of the same court denying petitioners Motion for
Reconsideration. The assailed Court of Appeals Decision reversed and set aside
Resolutions No. 040968[3] (dated 1 September 2004) and 050758[4] (dated 7 June
2005) of the Civil Service Commission (CSC) affirming the Order[5] dated 29
January 2003 and Decision[6] dated 15 September 2003 of the CSC-National
Capital Region (NCR) reinstating petitioner to his position as Administrative
Officer III of the Department of Environment and Natural Resources (DENR)-NCR.

The following antecedent facts are undisputed:

Petitioner rose from the ranks in the DENR-NCR starting as Clerk II, moving onto
Statistician I, then as Legal Assistant II, until he was promoted to Administrative
Officer III. He served as Administrative Officer III of the Interim Internal Audit
Division of the DENR-NCR from 1998 until he was dropped from the rolls of the
DENR-NCR plantilla of personnel by virtue of a Memorandum[7] issued on 1 August
2000 by respondent Corazon C. Davis, then the incumbent Regional Executive
Director of the DENR-NCR. Under the aforementioned Memorandum, petitioner
was declared separated from work for being AWOL, to wit:

Please be informed that per Memorandum of the Regional Executive

Director dated June 1, 2000, you were advised to report for work within
 (5) days upon receipt thereof and file the corresponding leave
application for the days you were absent. Likewise, you were also
instructed to submit your Original Daily Time Record (DTR) Card for the
month of April to the Personnel Section. However, up to this writing,
you have not yet complied with said instruction nor have properly
informed this Office of your interest/disinterest to go back to work.

In this connection, we regret to inform you that consistent with Civil

Service Commission Memorandum Circular No. 12 Section 2.1.a, s. 1994
hereunder reproduced, you are Officially dropped from the rolls of the
DENR-NCR Plantilla of Personnel effective August 1, 2000.

An Officer or employee who is continuously absent

without approved leave for at least 30 calendar days shall
be separated from the service or dropped from the rolls
without prior notice. He shall however be informed of his
separation from the service not later than five (5) days
from its effectivity which shall be sent to the address
appearing on his 201 files.

In petitioners motion for reconsideration of the afore-quoted memorandum, he

asserted that he had been reporting for work as evidenced by his Entry of Time in
the Security Guards Logbook of Employees and that he had to resort to such
recording of his official attendance since there was no Daily Time Record (DTR)
form found in the DTR rack. To refute the allegations that he was continuously
AWOL the entire months of May, June, and July 2000, petitioner presented the
security logbook showing that he reported for work on 15, 21, 22, and 27 June
2000; and 12 and 24 July 2000.

Respondent denied petitioners motion for reconsideration in an Order[8] dated 13

October 2000 citing that in her earlier Memorandum[9] dated 1 June 2000, she
already ordered petitioner to return to work but he failed to comply therewith,
and neither did he properly inform respondents office of his interest to go back to
work. Respondents Order dated 13 October 2000 also stated that per the offices
records, petitioner had been continuously absent from May to July 2000 and only
filed an approved leave application for 8, 9, and 10 May 2000. Respondent
likewise denied petitioners second motion for reconsideration in an
Order[10] dated 4 December 2000.
Petitioner initially appealed his dismissal from service with the CSC, but his appeal
was dismissed without prejudice in an Order[11] dated 2 April 2001, and he was
directed to file said appeal first with the CSC-NCR. Petitioner thereafter filed a
Petition for Relief from judgment with the CSC-NCR, which, after the conduct of
its own investigation, issued an Order dated 29 January 2003, granting petitioners
Petition for Relief, finding as follows:
 Foregoing premises considered, Palecpec cannot be found to
have been continuously absent for thirty working days. Hence, DENRs
findings of AWOL and the eventual dropping of Palecpec from the rolls
is without valid cause. Thus, Palecpec should be reinstated to his former
position with the payment of back salaries from the time he was
dropped from the rolls. Nonetheless, the DENR should initiate the
appropriate administrative investigation for failure to make complete
entries in the logbook.

WHEREFORE, the Appeal of Rudy A. Palecpec is hereby

granted.[12]

Respondent filed a motion for reconsideration of the foregoing CSC-NCR

Order, but it was denied by the CSC-NCR in a Decision dated 15 September 2003.

Unsatisfied, the respondent filed an appeal of the 29 January 2003 Order and 15
September 2003 Decision of the CSC-NCR with the CSC En Banc. However, said
Decision and Order were both affirmed by the CSC in its Resolution No. 040968,
dated 1 September 2004, thus:

WHEREFORE, the appeal of Regional Executive Director Corazon C.

Davis of DENR is hereby DISMISSED. Accordingly, the Orders of CSC-NCR
dated January 29, 2003 and September 15, 2003 are hereby
AFFIRMED. Thus, Rudy A. Palecpec is hereby reinstated to his position as
Administrative Officer III, Department of Environment and Natural
Resources, National Capital Region. However, this is without prejudice to
whatever disciplinary case that may be commenced against him.[13]

Respondents motion for reconsideration of the above Resolution was

subsequently denied by the CSC in its Resolution No. 050758 dated 7 June 2005,
finding as follows:

WHEREFORE, the motion for reconsideration is hereby DENIED.

Accordingly, CSC Resolution No. 04-0968 dated September 1,
2004 affirming the Orders dated January 29, 2003 and September 15,
2003 of the Civil Service Commission National Capital Region, which
 reinstated Rudy A. Palecpec to his position as Administrative Officer III,
Department of Environment and Natural Resources-National Capital
Region, STANDS.

The CSC-NCR is directed to monitor the implementation of this

Resolution.[14]

On 14 July 2005, respondent appealed to the Court of Appeals CSC Resolutions

No. 040968 (dated 1 September 2004) and 050758 (dated 7 June 2005) via a
Petition for Review under Rule 43 with prayer for a Temporary Restraining Order
(TRO) and preliminary injunction.

On 28 July 2005, the Court of Appeals issued a Resolution enjoining the CSC from
implementing the appealed CSC Resolutions. The Court of Appeals thereafter
rendered a Decision on 29 September 2005 reversing the Resolutions of the CSC
and ruling thus:

WHEREFORE, premises considered, the petition for review is

hereby GRANTED. The assailed Resolutions of the Civil Service
Commission affirming the CSC-NCRs Orders reinstating Rudy Palecpec
to his position as Administrative Officer III with payment of back salaries
are hereby REVERSED and SET ASIDE.[15]

Petitioner filed with the Court of Appeals a motion for reconsideration of its 29
September 2005 Decision, but said motion was denied by the Court of Appeals in
its Resolution dated 10 January 2006.

Hence, petitioner now comes before us via the instant Petition for Review
on Certiorari seeking the reversal and setting aside of the Decision dated 29
September 2005 and Resolution dated 10 January 2006 of the Court of Appeals
and, consequently, his reinstatement to his position as Administrative Officer III
with the DENR-NCR, with payment of back salaries, per CSC Resolutions No.
040968 (dated 1 September 2004) and No. 050758 (dated 07 June 2005).
Petitioner posits the following arguments in support of his Petition:

I. THE ASSAILED DECISION IMPOSES A MEANING AFAR OR NOT

INFERRED IN A CIVIL SERVICE RULE CONCERNING THE DROPPING
 FROM THE ROLLS OF AN OFFICER OR EMPLOYEE IN
GOVERNMENT VIS--VIS THE PRESCRIBED RECORD OF THE DAILY
ATTENDANCE WHICH HAS SUSTAINED THE ADMISSIBILITY OR
RELEVANCE OF EITHER THE DAILY TIME RECORD (DTR) CARD OR
OTHER EQUIVALENT FORMS.

II. THE ASSAILED DECISION RULING OUT THE AUTHENTICITY

AND/OR VERACITY OF THE ENTRIES IN THE SECURITY LOGBOOK
OF EMPLOYEES IN THE DENR-NCR CONCERNING THE
ATTENDANCE OF PETITIONER HEREIN IS FOUNDED PURELY ON
SURMISES AND CONJECTURES.

Respondent countered the present Petition by filing two Comments,

one through private counsel[16] and another through the Office of the Solicitor
General (OSG).[17]

Respondent asserts that the CSC-NCR committed grave abuse of discretion

amounting to lack or excess of jurisdiction in entertaining and assuming
jurisdiction over petitioners Petition for Relief from judgment, since a petition for
relief cannot be a substitute for a lost appeal. Respondent points out that
petitioner received her Memorandum dated 1 August 2000 which declared the
latter separated from work on 18 August 2000, as evidenced by petitioners
signature on the registry receipt. Respondent thus argues that petitioners first
motion for reconsideration dated 9 October 2000 and second motion for
reconsideration dated 16 October 2000 of respondents Memorandum fell beyond
the 15-day reglementary period set by Sections 71 and 72 of the Rules on
Administrative Cases in the Civil Service.[18]

Respondent also refutes petitioners statement that he worked as a

dedicated public servant during his stay with the DENR-NCR alleging that his stay
was actually marked by recalcitrant and contemptuous attitude towards his
superiors and his official responsibilities, in addition to habitual absences.

It is also not true, as petitioner claims, that he only learned of respondents

Memorandum dated 1 August 2000 from his officemates, when the registry
return receipt indicates receipt thereof by a certain Rudy A.
Palecpec.[19] Moreover, according to respondent, the employee security logbook
entries cited by petitioner do not comply with the provision of CSC Memorandum
Circular No. 21, Series of 1991, and standing alone, can hardly be considered as
sufficient proof of ones attendance in the office. As found by the Court of Appeals
in its Resolution dated 10 January 2006, the signature in the employee security
logbook which reads Andy P. is not acceptable as proof of petitioners attendance
in the office. CSC Memorandum Circular No. 15, Series of 1999, cited by petitioner
himself, provides guidelines on ensuring proper attendance recording. It states
that any other means of recording attendance may be allowed provided the
employees respective names and signatures, as well as their times of arrival to
and departure from the office, are indicated, subject to verification. According to
respondent, petitioner did not present independent evidence to prove that the
name and signature opposite Andy P. in the employee security logbook are
actually his. The DTR cards are more reliable than the employee security logbook
since a DTR is certified correct by the employee concerned and the chief of
office. Hence, when respondent marked petitioner as absent in the latters DTR
cards for June to July 2000, and when petitioners immediate supervisor executed
an affidavit certifying that petitioner did not report for work and perform his
assigned duties during the same period, the respondent and the immediate
supervisors actions are entitled to the legal presumption that they did so in the
regular performance of their official duties.[20]

Petitioner replied to both of respondents Comments. He contends that the

perfection of appeal before the CSC is not an issue in the instant petition, and that
the allegation that he did not work as a dedicated public servant is negated by his
Service Record.

Moreover, the wordings of CSC Memorandum Circular No. 21, Series of

1991, simply prescribe the forms available in recording the daily attendance of an
officer or employee in the government, only for the purpose of ensuring a
uniform system of monitoring the attendance of all government officials and
employees for purposes of complying with the eight hours for five working days a
week.[21] Petitioner asserts that the act of not accomplishing his DTR cards may
simply be a non-compliance with the policy of his office or the Civil Service Rules,
and cannot be proof of his being AWOL for the contested period, given that he
had presented evidence of his attendance for the same period.

Petitioner empathically argues that the signature in the employee security

logbook which reads Andy P. refers to one and the same person the petitioner as
is known by respondent and other employees of DENR-NCR, since it is the
customary signature he had used not only in his attendance records, but also in
receiving his salary for the past ten years.

Finally, petitioner asserts that the Memoranda dated 1 June 2000 and 1
August 2000 are without force and effect. According to him, the assailed Decision
of the Court of Appeals states that the absences in issue herein are not those
incurred by [herein petitioner] PALECPEC for the months of April and May, as
asserted in his Opposition, but his absences for the months of June and July
2000.[22] If that were the case, petitioner asserts that a perusal of respondents
Memoranda dated 1 June 2000 and 1 August 2000 would reveal that they concern
his absences for the months of April and May, not June and July 2000; and
therefore, that he was not given due notice. Petitioner also questions the validity
of respondents 1 August 2000 Memorandum informing him of his separation
from service. According to petitioner, he was not served a copy thereof and only
learned of it through his officemates. In his present Petition, he argues:

[T]he disputed Memorandum (sic) by Davis are flawed simply because it

failed to serve it to [petitioner] x x x. Be it noted that no iota of proof has
been adduced that [petitioner] has received either of said disputed
Memorandum.[23]

Petitioner brought his case before us via an appeal by certiorari from the adverse
Decision and Resolution of the Court of Appeals. In a long line of cases, it has been
held that the Supreme Court is not a trier of facts; and under Rule 45 of the 1997
Rules of Civil Procedure, a petition for review to be given due course should raise
only questions of law.[24]
But when is the Court faced with a question of law? We have differentiated a
question of law from a question of fact, thus, [t]here is a question of law when
doubts or differences arise as to what law pertains to a certain state of facts, and
a question of fact when the doubt pertains to the truth or falsity of alleged
facts.[25] A question of fact arises when there is need for a calibration of the
evidence, considering mainly the credibility of witnesses and the existence and
the relevancy of specific surrounding circumstances, their relation to each other
and to the whole, and the probabilities of the situation.[26]

Findings of fact of the Court of Appeals are generally conclusive on this Court, but
this rule admits of the following exceptions[27]:

(1) the factual findings of the Court of Appeals and the trial court are
contradictory;

(2) the findings are grounded entirely on speculation, surmises or

conjectures;

(3) the inference made by the Court of Appeals from its findings of fact
is mainly mistaken, absurd or impossible;

(4) there is grave abuse of discretion in the appreciation of facts;

 (5) the appellate court, in making its findings, goes beyond the issues
of the case and such findings are contrary to the admissions of both
appellant and appellee;

(6) the judgment of the Court of Appeals is premised on a

misapprehension of facts;

(7) the Court of Appeals fails to notice certain relevant facts which, if
properly considered, will justify a different conclusion; and

(8) the findings of fact of the Court of Appeals are contrary to those of
the trial court or are mere conclusions without citation of specific
evidence, or where the facts set forth by the petitioner are not
disputed by respondent, or where the findings of fact of the Court
of Appeals are premised on the absence of evidence but are
contradicted by the evidence on record.

A recognized exception to the general rule that factual issues are not within the
province of this Court is the circumstance in which there are conflicting findings of
fact by the Court of Appeals on one hand and the trial court or government
agency concerned on the other.[28] The findings of fact of the Court of Appeals and
the CSC herein are evidently in conflict with each other; hence, necessitating our
review of the evidence on record and coming up with our own findings of fact.

The factual matters for our determination are (1) the actual attendance of
petitioner during the contested period and the probative value to be given the
security logbook presented as evidence by petitioner; and (2) receipt by petitioner
of a copy of respondents Memorandum dated 1 June 2000 which ordered
petitioner to return to work and another Memorandum dated 1 August 2000
dismissing petitioner from service.

Petitioners allegations that he had been reporting for work on certain days and
was not continuously absent for more than 30 days are dependent chiefly on the
probative value to be given the entries in the employee security logbook.
Petitioner asserts that the employee security logbook must be given probative
value because CSC Memorandum Circular No. 21, Series of 1991, recognizes other
means of recording employees attendance. According to the said Memorandum
Circular:
Use of Bundy Clock and Other Records of Attendance

1. All officers and employees shall record their daily attendance on the
proper form or whenever possible, have them registered on the bundy
clock. Any other means of recording attendance may be
allowed provided their respective names and signature as well as the
time of their arrival to and departure from the office are indicated
subject to verification.

This Court cannot give credence to petitioners assertion. Although it is true that
attendance of civil service employees may be recorded by means other than the
DTR, CSC Memorandum Circular No. 21, Series of 1991, clearly requires that these
records must (1) provide the respective names and signatures of the employees;
(2) indicate their time of arrival and departure; and (3) be subject to
verification. Petitioner failed to establish herein that the employee security
logbook complied with all of these requirements, particularly, that it also
indicated his time of departure and that the said logbook was subjected to the
verification of his supervisors and/or superiors.
To better illustrate, the entries in the employee security logbook of one Andy P.
only consist of the following:

DATE IN OUT IN OUT

(AM) (PM)

June 15 1:00

June 21 8:40 3:30

July 12 (time in is unclear)

July 24 10:15[29]

Not only are these entries unverified, but they are also palpably incomplete and
insufficient to establish actual attendance. And even though the employee
security logbook may be considered as evidence on behalf of petitioner, it cannot
be given more probative value than the positive declarations made by petitioners
immediate supervisor[30] and respondent, as head of office, that he was not
present at the office from April to July 2000. There appears to be no reason why
respondent and his immediate supervisor would insist that petitioner was absent
when, as he claims, he was actually not. In keeping track of petitioners
attendance, petitioners immediate supervisor and respondent may be legally
presumed, in the absence of any evidence to the contrary, to have acted in the
regular performance of their official duties.[31]

Petitioners explanation that he failed to accomplish and submit his DTR because
he was not provided with a DTR form with his name on it on the DTR rack is
untenable in light of the certification by the DENR-NCR Chief of the Personnel
Division that petitioner was provided his DTR forms for the months in issue on the
DTR rack. Said explanation is also specious considering that petitioner could have
easily asked for a DTR form from the Personnel Division, should there be none on
the DTR rack.

If petitioner was actually reporting for work, given that he was already ordered to
return to work by respondent in her Memorandum of 1 June 2000, the more
rational course of action for petitioner would have been to immediately refute
that he had been absent, make sure that respondent and his immediate
supervisor see him within office premises performing his assigned tasks, and
diligently submit his DTR thereafter. It is beyond our comprehension why
petitioner, faced with a serious charge of being AWOL, continued with the
practice which may have gotten him into trouble in the first place refusing to
submit his monthly DTR and, as alleged by him, signing only the employee
security logbook.

Neither is there enough proof to show that the signature Andy P. refers to
petitioner. We cannot accept on face value petitioners allegation that the
signature Andy P. pertains to him in the absence of other proof that indeed such
is the signature and appendage petitioner has been using for the last ten
years.[32] We note that petitioners name is Rudy A. Palecpec, Jr., and there is utter
lack of rationalization as to why his personal signature would bear a different
name such as Andy P. Assuming it were true that petitioner is known among
DENR-NCR employees to be Andy P. and that he actually uses this signature in his
office transactions, then he would have had numerous possible pieces of evidence
to present to support such a contention. Petitioner could have easily provided
additional testimonies or affidavits from his officemates at the DENR-NCR to
prove his contention that Andy P. and Rudy A. Palecpec, Jr. are one and the same
person. He could have also procured copies of official documents from his office,
such as his personal data sheet or statement of assets and liabilities, showing that
he actually signed the same as Andy P. Given the obvious adverse consequence he
would have to face by his failure to establish such a fact, petitioner once again
acted contrary to reason by relying on the security logbook and his self-serving
allegation that the Andy P. therein was his signature, instead of presenting readily
accessible, objective and independent evidence in support thereof.
While petitioner claims respondent did not put the authenticity of the employee
security logbook entries in question, the records of the case reveal otherwise. As
respondent argues, we beg to disagree that we did not put the authenticity of the
logbook entries in question, because it was even first raised in the Motion for
Reconsideration with the CSC-NCR and subsequently discussed under letter A,
Arguments and Discussion of the Memorandum of Appeal.[33] Accordingly,
respondent actually puts in issue the authenticity of the aforementioned logbook
entries. In her Motion for Reconsideration filed before the CSC-NCR, respondent
avers that the same has no basis in fact and in truth, the alleged entries in the
logbook can be entered by anybody.[34]

Lastly, the fact that petitioner was issued his disbursement voucher for his salary
for the period 1-31 May 2000 does not necessarily prove that he had reported for
work during the entire period. It is important to note that petitioner had an
approved leave of absence from 8-10 May 2000. We also take notice of the fact
that reasonable time is needed for the Personnel Division to coordinate with the
Accounting Division of the same office for the withholding of the salary of an
employee for any reason. This is more so when the non-payment of salary is due
to unauthorized absences because the employees salary is released by the end of
the month, just about the same time when the employee is required to submit his
DTR for the said month. It is not uncommon for salary that is improperly paid to
be merely deducted from the employees salary for the following month. Neither
can the said voucher negate petitioners continuous unauthorized absence for 30
days in the succeeding months of June and July 2000, for which reason he was
dropped from the rolls.

The dearth of evidence presented by petitioner astounds us, considering that if

petitioner were truly present at the office during the contested period, then he
could have so easily proven the same by presenting testimonies of officemates
who had seen or interacted with him during those days or his work output during
the period such as work-related documents which bear his signature and date of
signing. Apart from stating that there was no deliberate malice in his absences, as
he had a family problem at the time the absences were incurred, and in giving a
copy of dubious entries in the employee security logbook, petitioner presented
little evidence to refute the AWOL charge against him.Unfortunately, petitioner
chose to build his case around the questionable entries in the employee security
logbook and mostly self-serving allegations.

In view of the foregoing, this Court finds that except for the period 8-10 May 2000
for which petitioner was granted an approved leave of absence, petitioner had
been absent without authorization beginning 2 May 2000, the entire months of
June and July 2000, and up to 1 August 2000 when respondent issued her second
Memorandum. The evidence presented and legal presumptions applicable herein
support the conclusion that petitioner incurred continuous absences of more than
30 days.

Now we proceed with a discussion of petitioners assertion that he was not

properly served a copy of respondents Memoranda dated 1 June 2000 and 1
August 2000, and that he allegedly learned only of the latter Memorandum from
his officemates. Petitioner contends that non-service on him of the questioned
Memoranda deprived him of his right to proper notice. Petitioners arguments are
unmeritorious.

Petitioner alleges that he was never served the first Memorandum dated 1 June
2000, arguing that the signature on the registry receipt is under the name of a
certain Priscilla Sanchez whom he does not even know. However, despite his
protestations, petitioner had already admitted such fact of receipt of the first
Memorandum in his second motion for reconsideration of respondents second
Memorandum dated 1 August 2000, wherein he stated:

It is not true that [petitioner herein] did not report for work in
compliance with the Return to Work Order dated June 1,
2000 and received by him on June 16, 2000. x x x.[35] (Emphasis
supplied.)

Based on the afore-cited, petitioner may not now deny receipt of the above 1
June 2000 Memorandum.

Furthermore, we have already recognized that a government employee who is on

AWOL may be dismissed without prior notice.[36]
The provisions of CSC Memorandum Circular No. 15,[37] Series of 1999, are clear
and leave no room for interpretation. A civil service officer or employee who is
continuously AWOL for at least 30 working days shall be separated from the
service or dropped from the rolls without need of any prior notice. The said
Memorandum Circular only requires that the employee be informed of his
separation from service not later than five (5) days from its effectivity and sent to
the address appearing on his 201 file or to his last known address, which
respondent complied with by her issuance of the second Memorandum dated 1
August 2000.

But petitioner denies being served the second Memorandum dated 1 August
2000, alleging he obtained knowledge thereof only through his
officemates. Petitioners allegation is contradicted by the registry return receipt
for the said Memorandum clearly bearing the handwritten name or signature of a
Rudy A. Palecpec. Moreover, the said Memorandum was sent to petitioners last
known address, where he regularly receives mail, and the very same address
reflected in his 201 file. When a document is shown to have been properly
addressed and actually mailed, then there arises a presumption that the same
was duly received by the addressee,[38] and it becomes the burden of the latter to
prove otherwise. Again, petitioners bare denial of receipt of a copy of the
Memorandum dated 1 August 2000 does little to persuade. In view of the
foregoing, this Court sees that it has been established that petitioner was duly
served a copy of respondents Memorandum dated 1 August 2000 notifying him
that he was being dropped from the rolls.

Assuming arguendo that petitioners unauthorized absences are not continuous

and are less than 30 days, he may still be dropped from the rolls by reason
thereof, after compliance with the requirement set forth in section 2b, Rule XII of
CSC Memorandum Circular No. 15, Series of 1999, which reads:

If the number of unauthorized absences incurred is less than thirty

(30) WORKING days, a written Return-to-Work order shall be served on the
official or employee at his last known address on record. Failure on his part
to report for work within the period stated in the order shall be a valid
ground to drop him from the rolls.

Respondents first Memorandum dated 1 June 2000 expressly required petitioner

to return to work within five days from receipt thereof; it thus constitutes a
written Return-to-Work Order required by the afore-quoted provision. Petitioner
admitted receipt of the said Memorandum, yet he still failed to comply with the
order to return to work within five days from receipt thereof, giving respondent
valid ground to already drop him from the rolls.
Now, we proceed to address petitioners argument that he was not properly
informed that he was being dismissed for his continued absences in June and July
2000, for respondents 1 August 2000 Memorandum refers only to his absences
during the previous months of April and May 2000. We disagree with petitioner
because a cursory reading of respondents 1 August 2000 Memorandum,
particularly the first paragraph thereof, would reveal that respondent noted
petitioners absence and refusal to submit his DTRs for the months of April to July
2000, thus:
Please be informed that per Memorandum of the Regional Executive
Director dated June 1, 2000, you were advised to report for work within
five (5) days upon receipt thereof and file the corresponding leave
application for the days you were absent. Likewise, you were also
instructed to submit your Original Daily Time Record (DTR) Card for the
month of April to the Personnel Section. However, up to this writing, you
have not yet complied with said instruction nor have properly informed
this Office of your interest/disinterest to go back to work. (Emphasis
supplied.)
It is very clear from the foregoing that petitioner, from April 2000 up to the time
of the Memorandums writing on 1 August 2000, had not yet submitted any DTR,
reported back to work, or informed respondent of his interest/disinterest to
return to work. Although petitioner contends that he had submitted his DTRs for
April and May and that the two DTRs are in the possession of the Personnel
Records Division of the DENR-NCR, it behooves this Court to wonder why there
was no attempt by petitioner to provide copies thereof as evidence. Petitioner
could have easily provided us a copy of the aforementioned DTRs he allegedly
submitted by securing copies thereof from the Personnel Records
Division. Without supporting evidence, petitioners contention that he had
submitted his DTRs for April and May is, once more, declared self-serving and
deserves scant consideration.

Anent respondents allegation that petitioners motion for reconsideration with the
Civil Service Commission was filed out of time, petitioner argues that the
reglementary period of 15 days within which to file does not apply inasmuch as
there was no sufficient notice and valid service thereof effected upon
petitioner. Petitioners assertion is delusive. Under Section 80 of the Uniform
Rules on Administrative Cases in the Civil Service, a decision of the CSC or
Regional Office shall be immediately executory after 15 days from receipt thereof
unless a motion for reconsideration[39] is seasonably filed.

As has been extensively discussed in the preceding paragraphs, there was proper
service on petitioner of the first and second memoranda. Thus, petitioners
argument on this ground must fail. The registry receipt shows that a certain Rudy
Palecpec received the 1 August 2000 Memorandum on 18 August 2000. Records
reveal petitioner filed his motion for reconsideration on 9 October 2000 or 52
days from 18 August 2000, way beyond the 15-day reglementary period; his
second motion for reconsideration, on the other hand, which the CSC treated as
an appeal, was filed on 16 October 2000.

This Court has indeed, in several instances, pronounced that the rules on
technicality can be brushed aside in order to serve the ends of substantial
justice.[40] Unfortunately for petitioner, however, the findings of the Court of
Appeals as to the validity of his removal from service due to AWOL are in
accordance with law and the records of the case.

Our Constitution enshrines the policy that public office is a public trust [and all]
public officers must at all times be accountable to the people, serve them with
utmost degree of responsibility, integrity, loyalty and efficiency.[41] Public office
therefore is given utmost regard, and the highest standards of service are
expected from it. We have categorically pronounced that the nature and
responsibilities of public officers enshrined in the 1987 Constitution and oft-
repeated in our case law are not mere rhetorical words, not to be taken as
idealistic sentiments but as working standards and attainable goals that should be
matched with actual deeds.[42]
Thus, the CSC, as the central personnel agency of the government, provides
measures to ensure compliance with these working standards and goals. With
respect to unauthorized absences, the Civil Service Law provides that frequent or
habitual unauthorized absences shall be ground for disciplinary action.[43]
As this Court has held in the case of Talion v. Ayupan[44]:

[C]ivil service employees who are absent for at least 30 days without leave
are considered absent without leave (AWOL) and shall be dropped from
the service after due notice. The notice contemplated by this rule is not
jurisdictional in nature and failure to give such notice by the appropriate
government office does not prevent the dropping of the employee
concerned from the government service. Staying away from ones regular
employment in the government or remaining on leave without proper
approval is something that an employee can hardly be unaware of.

Time and again, this Court has made the pronouncement that any act which falls
short of the exacting standards for public office shall not be
countenanced.[45] Absence without leave for a prolonged period of time constitutes
conduct prejudicial to the best interest of public service and justifies the dismissal
of an employee and the forfeiture of benefits with prejudice to re-employment in
the government[46] since it is an established fact that frequent unauthorized
absences cause inefficiency in the public service.

Hence, in this case, the dismissal of petitioner for being AWOL carries with it the
attendant penalties of cancellation of eligibility, forfeiture of retirement benefits,
and disqualification from reemployment in government service.[47]
WHEREFORE, premises considered, we DENY the present Petition for
Review on Certiorari and AFFIRM the Decision dated 29 September 2005 and
Resolution dated 10 January 2006 of the Court of Appeals in CA-G.R. SP No.
90292. We hereby ORDER that petitioner Rudy A. Palecpec, Jr. be dropped from
the rolls of the Plantilla of Personnel of the Department of Environment and
Natural Resources, National Capital Region effective 1 August 2000, with the
cancellation of his civil service eligibility, forfeiture of retirement benefits; and
with prejudice to his reemployment in any branch of the government or any of its
agencies or instrumentalities, including government owned and controlled
corporations. Costs against the petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-54886 September 10, 1981

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS (Special Second Division), COURT OF FIRST INSTANCE OF
BULACAN, TURANDOT, TRAVIATA, MARCELITA, MARLENE, PACITA, MATTHEW, VICTORIA and ROSARY,
all surnamed ALDABA, respondents.

MAKASIAR, J.:

Petitioner, through this petition for review by certiorari, seeks to annul and set aside the respondent Court of Appeals'
April 29, 1980 decision and August 15, 1980 resolution in CA G.R. No. 10081-SP, entitled "Republic of the
Philippines versus Hon. Roque Tamayo, et al. " — a special action for certiorari, prohibition and mandamus —
sustaining the lower court's action in dismissing petitioner's appeal as not having been perfected on time.

The root case is an expropriation proceedings initiated by the petitioner over a 15,000 square meter lot of private
respondents situated in Barrio Tikay, Malolos, Bulacan, docketed in the lower court as Civil Case No. 525, entitled "
Republic of the Philippines vs. Turandot Aldaba, et al. " The subject parcel of land is needed by the petitioner to set
up a permanent site for the Bulacan Area Shop, Bureau of Equipment, Department of Public Highways, a public
purpose authorized by law to be undertaken by the Ministry of Public Highways. On March 2, 1978, the lower court
issued a writ of possession placing the petitioner in possession of the land in question, upon its deposit of the amount
of P7,200.00 as provisional value. On March 31, 1978, counsel for private respondents filed a motion praying for the
creation of a three (3)- man committee in accordance with Section 5, Rule 67 of the Rules of Court, to study and
submit a report as to the just and reasonable compensation for the parcel of land subject of expropriation. On July 31,
1978, the lower court issued an order naming the chairman and members of the committee of three. On November
17. 1978, the three-man committee submitted a joint report to the lower court, recommending that the just
compensation of the expropriated land be fixed at P50.00 per square meter. In this petition, the Solicitor General
claims that he was not served copies of the aforementioned March 31, 1978 motion of private respondents, July 31,
1978 order of the respondent lower court and the November 17, 1978 report of the three-man committee. The
records reveal that the Solicitor General authorized the provincial fiscal of Bulacan to represent him in that
proceedings (pp. 11-12, C.A. rec.). Parenthetically, private respondents in their comment to this petition, alleged "that
the Provincial Fiscal, being duly authorized by the office of the Solicitor General to represent the latter in this case,
the court merely furnished the office of the Provincial Fiscal with all the pleadings and other papers of the case,, (p.
53, rec.).

On December 18, 1978, the Solicitor General received a copy of the lower court's order dated December 8, 1978.
The order reads in part:

The joint report filed by the three-man committee charged with the determination of the just
compensation of the property herein sought to be condemned is hereby APPROVED, such that the
just compensation of the land described in Paragraph 11 of the Complaint is fixed at Thirty Pesos
(P30.00) per square meter.

The defendant may now withdraw from the Philippine National Bank, Malolos, Branch, the sum of
P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways
under Account No, 35109, said sum to be part of the total amount of P450,000.00 (15,000 square
meters at P30.00 per square meter), which the Department of Public Highways, Third Regional
Equipment Services, Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein
defendants as just compensation for the subject property.

On December 22, 1978, the Solicitor General filed through the mail a notice of appeal as well as a first motion for
extension of time of 30 days from January 17, 1979 within which to file record on appeal. The extension sought for
was granted by the lower court in its order dated January 17, 1979.

On February 13, 1979, the lower court, acting upon petitioner's manifestation filed on January 9, 1979 and motion
filed on February 8, 1979, allowed the Solicitor General to borrow the records of the expropriation case "under proper
receipt, the Clerk of Court taking the necessary steps to index and number the pages thereof and to ensure its
integrity; and granted a second extension of thirty (30) days from February 17, 1979, within which to file the record on
appeal of the Republic of the Philippines" (p. 79, C.A. rec.).

Again, on March 22, 1979, the lower court granted petitioner's third motion for an extension of thirty (30) days from
March 19, 1979 within which to file its record on appeal (p. 80, C.A. rec.).

Subsequently, the lower court, in an order dated April 24, 1980, acted favorably upon petitioner's motion for a fourth
extension of thirty (30) days from April 19, 1979 within which to file its record on appeal and petitioner's request that
the records of the expropriation case be forwarded to the Solicitor General (p. 81, C.A. rec.).

In a motion dated May 17, 1979, the petitioner, invoking heavy pressure of work, asked for a fifth extension of thirty
(30) days from May 18, 1979 or until June 17, 1979, within which to file its record on appeal (pp. 82-83, C.A. rec.).
On June 7, 1979, when its motion for a fifth extension has not yet been acted upon by the lower court, petitioner filed
its record on appeal (p. 13, rec.).

On June 15, 1979, eight (8) days after petitioner had filed its record on appeal, private respondents filed an
opposition to the aforesaid fifth motion for extension (pp. 85-87, C.A. rec.), and an objection to petitioner's record on
appeal (pp. 88-89, C.A. rec.), on the ground that the same was filed beyond the reglementary period, because
petitioner's motion dated May 17, 1979 for extension to file record on appeal was mailed only on May 21, 1979 (pp.
13-14, rec.).

On June 27, 1979, petitioner filed its opposition to the aforesaid objection to its record on appeal, contending that the
said May 17, 1979 motion for extension of time was actually mailed on May 18, 1979, which was the last day of the
extended period allowed by the lower court's order of April 24, 1979 (p. 14, rec.).

In an order dated August 13, 1979 but received by the Solicitor General only on September 10, 1979, the lower court
dismissed the appeal of petitioner on the ground that the fifth motion for extension of time dated May 17,1979 within
which to file the record on appeal and the record on appeal were filed out of time. The lower court found that the said
fifth motion for extension of time was actually mailed on May 21, 1979 and not on May 18, 1979 as claimed by
petitioner (pp. 14, 34-35, rec.). The order of dismissal reads:

Upon consideration of the approval of the record on appeal filed by the Republic and acting on the
manifestation filed on July 25, 1979 by the defendants thru counsel, the Court finds no merit in the
same.

The last motion of the Office of the Solicitor General for extension of time to file record on appeal
was on May 17, 1979, seeking for an additional extension of thirty (30) days from April 18, 1979.

The thirty-day period requested by the Solicitor General from May 18, 1979 therefore expired on
June 17, 1979. But this last request for extension was not acted upon by the court. The Republic of
the Philippines had therefore only up to May 17, 1979, within which to file record on appeal. The
record on appeal was filed only on June 11, 1979 (should be June 7), which is well beyond the
period to file record on appeal Moreover, the last motion for extension which was not acted upon by
the Court had only been filed on May 21, 1979 as shown by the stamp of the Manila Post Office,
the date of the mailing which should be reckoned with in computing periods of mailed pleadings,
and received by the Court on June 22, 1979. Both the motion for extension filed on May 21, 1979
and the record on appeal filed on June 11, 1979 (should be June 7), have therefore been filed
beyond the reglementary period of 30 days from April 18, 1979, or up to May 18,1979.

xxx xxx xxx

(pp. 34-35, rec.).

On October 4, 1979, petitioner filed a motion for reconsideration claiming that "l) there is merit in plaintiff's appeal
from tills Honorable Court's order of December 8, 1978, a copy of which was received on December 18, 1978; 2)
plaintiff's May 17, 1979 motion for 30 days extension from May 17, 1979 to file Record on Appeal, was actually filed
on May 18, 1919; and 3) the Honorable Court denied plaintiff's appeal without first resolving plaintiff's motion for a 30-
day extension, from May 18, 1979 to file Record on Appeal" (pp. 14-15, rec.; pp. 52-66, C.A. rec.). Relative to the
timeliness of the filing of its fifth motion for extension of time, petitioner submitted a certification of the Postmaster of
the Central Office of the Bureau of Posts, Manila, that registered letter No. 3273 containing the aforesaid motion
addressed to the Clerk of Court of the Court of First Instance of Malolos, Bulacan ... was received by this Office late
Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19 to Bulacan and
was dispatched May 21, 1979, Monday (May 20, being a Sunday) under the Manila — Malolos Bill No. 202, page 1,
line 15" (p. 66, C.A. rec.).

On the merits of the dismissed appeal, petitioner stressed that the creation of a three-man committee to fix the just
compensation of the expropriated lot was without legal basis, because Section 5, Rule 6 of the Rules of Court upon
which the same was anchored had already been repealed by the provisions of Presidential Decree No. 76 which took
effect on December 6, 1972 — under which the court has no alternative but to base the just compensation of
expropriated property upon the current and fair market value declared by the owner or administrator. or such market
value as determined by the assessor, whichever is lower.

On October 31, 1979, the lower court denied petitioner's motion for reconsideration for lack of merit (pp. 36-40, rec.;
pp. 2832, C.A. rec.), thus:

The grounds advanced by the plaintiff Republic of the Philippines have been fully taken into
account by the Court in its order of August 13, 1979, particularly the late filing of the record on
appeal. Plaintiff's counsel should not have assumed that the motion for extension of the period for
filing of the record on appeal would be granted.

The plaintiff's counsel's belief that their May 17, 1979 motion would be granted cannot be the basis
for the plaintiff to be absolved of the effect of late filing of the record on appeal considering that the
Court had liberally extended for five times *, each for thirty (30) days, the filing of said record. This Court
considers said extensions as sufficient time for the counsel for plaintiff to prepare its record on appeal. Plaintiff's
counsel, with all the resources it has to protect its client's interests, should have been vigilant enough not to assume
and should not expect that their motion for extension would be granted. It is not correct therefore that only three days
had elapsed after the reglementary period to perfect appeal because the reglementary period ended not on June 17,
1979, but on May 17, 1979, because the last motion for extension was not granted by the Court.

The Court deplores the insinuation of plaintiff's counsel that it took hook, line and sinker,
defendant's allegation about the fact of mailing. I t has carefully gone over the record and found
 that the date of mailing of the motion for extension is May 21, 1979, as shown by the stamp
'Registered, Manila, Philippines, May 1, 1979 appearing on the covering envelope containing the
motion for extension. Therefore, the explanation contained in Annex B of the motion for
reconsideration to the effect that registered Letter No. 3273, addressed to the Clerk of Court, Court
of First Instance of Malolos, Bulacan, was received by the Manila Post Office late Friday afternoon,
May 18, 1979, but was not included in the "only" morning dispatch of May 19 to Bulacan and was
dispatched May 21, 1979, Monday (May 20 being a Sunday), under the Manila—Malolos Bill No.
202, page 1, line 15', can not overturn the fact of date of actual mailing which is May 21, 1979,
because it is of judicial knowledge that a registered letter when posted is immediately stamped with
the date of its receipt, indicating therein the number of the registry, both on the covering envelope
itself and on the receipt delivered to the person who delivered the letter to the post office. The letter
Annex B of the motion therefore lacks sufficient weight and persuasiveness to prove the fact that
the letter asking for another extension was actually filed on May 18, 1979, and not May 21, 1979.

Regarding the creation of a three-man committee which according to plaintiff the Court sorely
lacked the prerogative to create pursuant to Sec. 5, Rule 67 of the Rules of Court because it has
been superseded by the provisions of PD 76 which definitely fixed the guidelines for the
determination of just compensation of private property acquired by the State for public use, the
Court had to resort to this old method of determining fair market value, which is defined as:

The "current and fair market value" shall be understood to mean the "price of
which a willing seller would sell and a willing buyer would buy neither being under
abnormal pressure", because, firstly; the plaintiff failed to show evidence thereof
as declared by the owner or administrator of the property under the provisions of
PD 76, or the valuation or assessment of the value as determined by the
assessor, whichever is lower. Hence, for all intents and purposes, the findings of
the three-man committee have become the basis of the evaluation, Paragraph Ill
of the complaint notwithstanding, because allegation in the complaint, unless
proved, are not binding as evidence.

Presidential Decree No. 42, from its very caption, which reads:

PRESIDENTIAL DECREE NO. 42 AUTHORIZING THE PLAINTIFF IN EMINENT

DOMAIN PROCEEDINGS TO TAKE POSSESSION OF THE PROPERTY
INVOLVED UPON DEPOSITING THE ASSESSED VALUE FOR PURPOSES
OF TAXATION

does not fix the value of the property to be expropriated, but rather for the purpose of taking
possession of the property involved, the assessed value for purposes of taxation is required to be
deposited in the Philippine National Bank or any of its branches or agencies. This is borne out by
the first Whereas of the decree which finds the existing procedure for the exercise of the right of
eminent domain not expeditious enough to enable the plaintiff to take or enter upon the possession
of the real property involved, when needed for public purposes. The second Whereas states that
the measure is in the national interest in order to effect the desired changes and reforms to create
a new society and economic order for the benefit of the country and its people.

The body of the law does not specify the valuation of the property, but rather the method by which
seizure of the property could be done immediately, and that is by the act of depositing with the
Philippine National Bank, in its main office or any of its branches or agencies, an amount equivalent
to the assessed value of the property for purposes of taxation, to be held by said bank subject to
the orders and final disposition of the Court.

Only in this respect are the provisions of Rule 67 of the Rules of Court and or any other existing law
contrary to or inconsistent therewith repealed. If at an, the decree, PD 42, fixes only a provisional
valueof the property which does not necessarily represent the true and correct value of the land as
defined in PD 76. It is only provisional or tentative to serve as the basis for the immediate
occupancy of the property being expropriated by the condemnor. This is in line with the recent
decision of the Honorable Supreme Court promulgated on October 18, 1979, in the case of the
Municipality of Daet, Petitioner, vs. Court of Appeals and Li Seng Giap & Co., Inc., Respondents,
G.R. No. L-45861, which states in part:

..., it can already be gleaned that said decree fixes only the provisional value of
the property. As a provisional value, it does not necessarily represent the true
and correct value of the land. The value is only "provisional" or "tentative" to
serve as the basis for the immediate occupancy of the property being
expropriated by the condemnor.

xxx xxx xxx

(pp. 28-32, rec.).

Dissatisfied with the aforesaid orders of the lower court, petitioner on December 3, 1979 filed with the respondent
Court of Appeals a petition for certiorari, prohibition and mandamus with preliminary injunction in CA-G.R. No. 10081-
Sp, entitled: Republic of the Philippines versus Court of First Instance of Bulacan, Branch VI, presided over by Hon.
Roque Tamayo, et al., whereby it prayed that: 1) This petition be given due course; 2) A writ of preliminary injunction
and/or temporary retraining order be issued ex-parte restraining respondent court from executing, enforcing and/or
implementing its Order dated December 8, 1978, ... and its orders dated August 13, 1979 and October 31, 1979 ...; 3)
After hearing on the merits, judgment be rendered: [a] annulling and setting aside respondent court's Orders of
August 13, 1979 ... : [b] Directing and compelling respondent court to allow and approve petitioner's record on appeal
and to certify and elevate the same to this Honorable Court; [c] Declaring the writ of preliminary injunction and/or
restraining order herein prayed for to be made permanent and perpetual" and for such other relief as the Court may
deem just and equitable in the premises.

On December 14, 1979, respondent Court of Appeals issued a temporary restraining order to maintain the status
quo, and required private respondents to file their comment (pp. 67-68, C.A. rec.).

On January 2, 1980, private respondents filed the required comment (pp. 69-91, C.A. rec.).

On April 29, 1980, respondent Court of Appeals dismissed petitioner's action and set aside its December 14, 1979
restraining order. The respondent Court of Appeals ruled that "A review of the whole record convinces Us that the
challenged orders are not a capricious and whimsical exercise of judgment as to constitute a grave abuse of
discretion ..." (pp. 44-45, rec.). The Solicitor General received a copy of the aforesaid decision on May 19, 1980.

On May 30, 1980, the Solicitor General sought a thirty-day extension from June 3, 1980 within which to file a motion
for reconsideration (pp. 106-107, C.A. rec.).

On June 20, 1980, the respondent Court of Appeals granted the extension sought (p. 108, C.A. rec.).

On June 23, 1980, the Solicitor General filed his motion for reconsideration on the ground that, "The Honorable Court
of Appeals was misled by private respondents' counsel in holding that petitioner's motion for extension of time to file
record on appeal dated May 17, 1979 ... was filed on May 21, 1979, not on May 18, 1979 (which was the last day
within which to file petitioner's record on appeal); hence, this Honorable Court was not correct in ARRIVING AT THE
CONCLUSION THAT PETITIONER'S AFORESAID MOTION FOR EXTENSION was filed beyond the reglementary
period" (pp. 109-118, C.A. rec.). Petitioner also moved to set the case for oral argument (p. 119, C.A. rec.). Petitioner
vehemently insisted as it did in the main action (pp. 10-12, C.A. rec.), that it is erroneous to conclude that its

... motion for extension dated May 17, 1979 ... was filed on May 21, 1979 and not on May 18, 1979
which is the last day of the extended period fixed by respondent court for petitioner to file its record
on appeal. It is submitted that the motion for extension dated May 17, 1979 ... was actually filed on
May 18,1979 as there is incontrovertible proof that the same was in fact mailed on May 18, 1979
via registered mail (Registry Letter 3273) at the Manila Central Office of the Bureau of Posts. A
letter dated September 26, 1979 of Delfin Celis, postmaster of Central Post Office, Manila, to the
Chief of the Records Section of the Office of the Solicitor General shows that the envelope
containing the May 17, 1979 motion was received by the Post Office of Manila on May 17, 1979.
Said letter states:

In compliance to your request in your letter dated September 20, 1979 in

connection with registered letter No. 3273 addressed to the Clerk of Court, Court
of First Instance Malolos, Bulacan, please be informed that it was received by
this Office late Friday afternoon, May 18, 1979. The letter was not included in the
only morning dispatch of May 19 to Bulacan and was dispatched May 21, 19719,
Monday (May 20, being a Sunday) under the Manila- Malolos Bill No. 202, page
1, line 15.

Thus, it is conceded that the envelope containing the registered letter of petitioner's motion for
extension to file record on appeal dated May 17, 1979 has on its face the date May 21, 1979
stamped thereon ... . If the aforesaid proof of mailing presented by private respondent is taken into
account solely without taking into consideration the letter of postmaster Delfin Celis dated
September 25, 1979 ... , then it could be said that petitioner's motion for extension to file record on
appeal dated May 17, 1979 was filed out of time. However, the certification of the Postmaster
stating that the letter was actually received in the Post Office on May 18, 1979 conclusively shows
that such date is the date of mailing, and the date May 21, was thus wrongly stamped thereon by
an employee of the Post Office. Petitioner should not be blamed for the mistake committed by the
personnel of the Post Office of stamping May 21, 1979 on the envelope of said Registered Letter
No. 3273. Petitioner's counsel had nothing to do with the aforesaid mistake that had been
committed by the personnel of the Post Office.

In resume it can be said with certainty that the records of the Office of the Solicitor General and the
Post Office of Manila clearly show that the petitioner's motion for extension dated May 17, 1979
was seasonably filed on May 18, 1979 as the latter was actually the date of its mailing and
therefore said date should be deemed as the actual date of its filing before respondent court.

At this juncture, it may be stated that undersigned counsel were constrained to seek extension to
file record on appeal because of the pressure of work and their need to borrow the records of the
case from the trial court. Thus, as early as January 9, 19-i 9, they were borrowing the expediente of
the case so as to enable them to prepare an accurate record on appeal. Petitioner in its motion and
manifestation of January 9, 1979 stated why it wanted to borrow the expediente of the case at bar,
as follows:

3. The records of the undersigned counsel may not be complete as it had

authorized the Provincial Fiscal of Bulacan to appear in the hearings before this
honorable Court, thus it is possible that the Office of the Solicitor General may
not have been furnished copies of Orders of this honorable Court, as well as
pleadings that may have been furnished the provincial Fiscal of Bulacan.

4. This being the case, undersigned counsel can not prepare an accurate and
concise record on appeal, hence it is necessary that the records of the case be
 lent to the undersigned counsel pursuant to Sec. 14, Rule 1:36, of the Revised
Rules of Court' (pp. 6-7 Motion for Reconsideration [in the CFI of Bulacan]; see
pp. 52, 57-58, C.A. rec.),

On April 10, 1979, undersigned counsel reiterated their desire to borrow said expediente but it was
not until May 3, 1979 that the expediente of the case consisting of 164 pages were received by the
Docket Section of the Office of the Solicitor General. It was only on May 16, 1979 that
said expediente were delivered to undersigned Solicitor, thus compelling him to prepare the May
17, 1979 motion. And for the same reasons, it was only on June 7, 1979 that the record on appeal
was filed, which was well within the 30 days extension from May 18, 1979 prayed for in petitioner's
motion of May 17, 1979.

xxx xxx xxx

(pp. 109-113, C.A. rec.).

On July 14, 1980, respondent Court of Appeals resolved to require private respondents to comment on the motion for
reconsideration within ten (10) days from receipt of the resolution (p. 12 1, C.A. rec.).

Earlier, however, or on July 8, 1980, private respondents mailed their opposition to the motion for reconsideration and
their waiver to appear for oral argument (pp. 122-123, C.A. rec.), Both were received by the Court of Appeals on July
14, 1980, the very day the resolution requiring private respondents to comment on the motion for reconsideration,
was released by the Court of Appeals. In the petition before this Court, the Solicitor General laments the fact that no
copies of the aforesaid pleadings of the private respondents were ever served on and received by him (p. 18, rec.).
Indeed, said pleadings of the private respondents do not show nor indicate that copies thereof were served on the
Solicitor General (pp. 121-123, C.A. rec.).

In the aforesaid opposition of private respondents, they claimed that

The undersigned counsel merely stated that the date of filing the fifth motion for extension to file
record on appeal by the office of the Solicitor General was on May 21, 1979, as shown on the
envelope bearing the stamp of the Manila Post Office, which clearly reads 'May 21, 1979 and the
undersigned counsel brought to the attention of the lower court that the date of filing of this fifth
extension was the date shown when the mailing was made as stamped on the envelope. That there
can be no other date than the date stamped on the envelope made by the Manila Post Office when
the fifth request for extension of filing the record on appeal was mailed. This fact of the date of
mailing, May 21, 1979, was stamped on the envelope.

The office of the Solicitor General further alleged:

If ... taken into account solely without taking into consideration the letter of the
Post Master Delfin Cells, dated September 25, 1979 x x, then it could be said
that petitioner's motion for extension to file record on appeal, dated May 17,
1979, was filed out of time.

From the above statement of the Office of the Solicitor General there can never be any abuse in
the exercise of judgment as to constitute a grave abuse of discretion. the lower court chose to rely
on the date stamped on the envelope by the Manila Post Office rather than considering as
paramount a mere letter from the Manila Post Office employee, Delfin Cells.

xxx xxx xxx

If we are to believe that the stamped date, May 21, 1979, was wrongly stamped by an employee of
the Manila Post Office, then thousands of mails received and or mailed on that date were all
wrongly stamped. How can the lower court believe that the date May 21, 1979, was merely
erroneously stamped on the envelope? The lower court's finding of facts on this regard, must also
be sustained.

The other reason given by the Office of the Solicitor General was that they have asked for the
complete record of the case but that it was only forwarded to their office sometime on May 3, 1979.

The record of the case cannot be easily forwarded to the Solicitor General because there was the
case of motion for intervention filed in connection with the case.

The failure on the part of the court to immediately comply with the request of the office of the
Solicitor General cannot be a justifying reason for failure to comply with the rules of court and of the
order of filing the record on appeal within the reglementary period, or time given by the court.

The office of the Solicitor General gave the Provincial Fiscal of Bulacan the power to handle the
case for (them) and the office of the Provincial Fiscal was furnished with all pleadings, orders and
other papers of the case. The record therefore of the Office of the Provincial Fiscal can easily be
available to them. Besides no less than five (5) extensions of time had been requested and the last
one was not acted upon by the Court and yet the Office of the Solicitor General filed the Record on
Appeal only on June 17, 1979 should be June 7, 1979), which is far beyond the reglementary
period which was May 17, 1979 (should be May 18, 1979).

xxx xxx xxx

 (pp. 123-125, C.A. rec.).

On August 15, 1980, respondent Court of Appeals issued a resolution denying the motion for reconsideration, thus:

Acting on the Motion for Reconsideration dated June 23, 1980 filed by the Solicitor General and the
opposition thereto filed on July 8, 1980 by the respondents and considering that the said motion
does not cite new matters which have not been considered in the decision promulgated on April 29,
1980, the said motion is hereby denied.

Petitioner's Motion to Set Case for Oral Argument' dated June 23, 1980 is likewise DENIED.

Aforesaid resolution was received by the Solicitor General on August 20, 1980.

Hence, this recourse.

Petition was filed on October 24, 1980; two extensions of time of thirty (30) days each having been previously asked
by and granted to petitioner Republic of the Philippines.

On October 29, 1980, WE resolved to require respondents to comment on the petition within ten (10) days from
notice of the resolution and at the same time issued a temporary restraining order enjoining respondents from
executing, enforcing and/or implementing the decision dated April 28, 1980 issued in CA G.R. No. SP-10081, entitled
"Republic of the Philippines, Petitioner, versus Hon. Roque Tamayo, etc., et al., Respondents" of the Court of
Appeals, and the Order dated December 8, 1978 issued in Civil Case No. 5257-M, entitled "Republic of the
Philippines. Plaintiff, versus Turandot Aldaba, et al., Defendants" of the Court of First Instance of Bulacan, Branch VI
at Malolos, Bulacan, (pp. 49-51, rec.).

On November 14, 1980, private respondents filed their comment to the petition contending that no abuse of discretion
or act in excess of jurisdiction exists as to require a review by this honorable Court (pp. 52-64, rec.).

On November 24, 1980, WE resolved to give due course to the petition and to declare the case submitted for
decision (p. 65, rec.).

But on December 22, 1980, private respondent filed a motion, praying for the outright dismissal of the instant petition
on the main ground that the decision of the respondent Court of Appeals sought to be reviewed has already become
final and executors hence, unappealable, because this petition was filed out of time as the petitioner's motion for
reconsideration iii the Court of Appeals was pro forma (pp. 66-67, rec.).

The main issue to be resolved in this case is whether or not respondent Court of Appeals itself committed a grave
abuse of discretion in not finding that the respondent trial court committed a grave abuse of discretion in dismissing
petitioner's appeal. The questioned orders should be set aside.

I. It must be underscored that the basic provisions of the Rules of Court basis of the dismissal of the petitioner's
appeal by the Court of First Instance of Bulacan as sustained by the respondent Court of Appeals are Section 13,
Rule 41; Where the notice of appeal, appeal bond or record on appeal are not filed within the period of time herein
provided, the appeal shall be dismissed; and Section 14, Rule 41; A motion to dismiss an appeal on any of the
grounds mentioned in the preceding section may be filed in the Court of First Instance prior to the transmittal of the
record to the appellate court.

The Court of First Instance of Bulacan dismissed herein petitioner's appeal on the bases of the foregoing provision
upon its finding that the record on appeal of petitioner was filed out of time as it was filed only on June 7, 1979 or
twenty (20) days after May 18, 1979, the last day of the appeal period s extended petitioner fifth extension of time of
thirty days from May 18, 1979, not having been favorably acted upon by the Court of First Instance of Bulacan upon
its finding that the same was also filed late or three days after the last day of the extended appeal period. The
implication of the questioned orders of the Court of First Instance is that since the fifth extension of time was filed out
of time, no action may be taken thereon by it; hence, petitioner Republic had only up to May 18, 1979 within which to
file the record on appeal. Consequently, the filing thereof only on June 7, 1979 was too late.

The petitioner, however, herein contends as it did before the Court of First Instance of Bulacan and before the
respondent Court of Appeals, that its fifth extension of time was actually filed on May 18, 1979, not on May 21, 1979
as found out by the Court of First Instance and Court of Appeals and in support thereof, pointed to the certification of
the postmaster of the Central Office of the Bureau of Posts, dated September 25, 1949 (P. 47, rec.) to the effect that
the said motion for extension of time as contained in registered mail No. 3273 addressed to the Clerk of Court of First
Instance of Bulacan (Malolos) ... was received by this office late Friday afternoon, May 8, 1979. The letter was not
included in the only morning dispatch of May 19, to Bulacan and was dispatched May 21, 1979, Monday (May 20
being a Sunday) under the Manila-Malolos Bill No. 202 page 1, line 15."

But the Court of First Instance of Bulacan opined that said certification cannot override the prevailing practice in post
offices "that a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the
number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered
the letter to the office" of which it took judicial notice.

WE entertain grave doubts that the aforesaid post office practice is a proper subject of judicial notice.

Section 1 of Rule 129 on judicial notice provides that "The existence and territorial extent of states, their forms of
government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of the legislative, executive, and judicial
departments of the Philippines, the laws of nature, the measure of time, the geographical divisions and political
history of the world and all similar matters which are of public knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions, shall be judicially recognized by the
court without the introduction of proof; but the court may receive evidence upon any of the subjects in this section
stated, when it shag find it necessary for its own information, and may resort for its aid to appropriate books or
documents or reference."

Undoubtedly, the post office practice of which the Court of First Instance took judicial notice is not covered by any of
the specific instances cited above. Neither can it be classified under "matters which are of public knowledge, or are
capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions ... . " For
a matter to be taken judicial notice of by the courts of law, it must be a subject of common and general knowledge. In
other words, Judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be
generally recognized or known when its existence or operation is accepted by the public without qualification or
contention. The test is whether the 'act involved is so notoriously known as to make it proper to assume its existence
without proof. The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is
accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons f
with the particular matter in question (20 Am Jur 49-50; Martin, Rules of Court 37, Second Edition). Furthermore, a
matter may be personally known to the judge and yet tot be a matter of judicial knowledge and vice versa, a matter
may not be actually known to an individual judge, and nevertheless be a proper subject of judicial cognizance.

The post office practice herein involved is not tested by the aforestated considerations, a proper matter of judicial
notice. Moreover, the certification issued by the very postmaster of the post office where the letter containing the
questioned motion for extension of time was posted, is a very clear manifestation that the said post office practice is
not of unquestionable demonstration. Indeed, the doctrine of judicial notice rests on the wisdom and discretion of the
courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the
requisite notoriety exists; and every reasonable doubts upon the subject should be promptly resolved in the negative
(31 CJS 522; Martin, Rules of Court 38, Second Edition).

It is therefore manifest from the foregoing that the Court of First Instance of Bulacan committed a palpable error
amounting to a grave abuse of discretion in relying on the alleged post office practice aforementioned over the
uncontroverted certification of the postmaster earlier referred to. That being so, the dismissal of petitioner's appeal
therefore lacks factual basis. It should have acted on petitioner's fifth motion for extension of time which WE find to
have been filed on time.

The records reveal that a favorable action on the aforesaid fifth motion for extension of time is warranted by the
following circumstances: (1) the record on appeal was filed by petitioner even before the lower court could consider
the questioned motion for extension of time; and private respondents objected to the said motion only after petitioner
had filed the record on appeal; (2) the order of the lower court granting the fourth extension of time did not contain
any caveat that no further extension shall be allowed; (3) the fact that the CFI records of the case were sent to the
Solicitor General only on May 3, 1979 and ostensibly handed to the Solicitor assigned to the case only on May .16,
1979 or barely two (2) days before the expiration of the extended appeal period; and (4) pressure of work in the
undermanned Office of the Solicitor General who is the counsel of the National Government and all other
governmental agencies and instrumentalities; and (5) and the unconscionable amount of P450,000.00 for a parcel of
1.5 hectares situated in a barrio of Malolos, Bulacan, with only a provisional value of P7,200.00 obviously based upon
its assessed value appearing on its tax declaration. No sugar, rice or coconut land of only 15,000 square meters
could command such a fabulous price.

WE therefore rule that the respondent Court of Appeals gravely abused its discretion in affirming the disputed orders
of the Court of First Instance of Bulacan.

II. But even assuming that the motion for extension to file record on appeal dated May 17, 1979 was filed not on May
18, 1979 but on May 21, 1979 as claimed by private respondents, which is a delay of only one (1) working day, May
19 and 20 being Saturday and Sunday, respectively, that circumstance alone would not justify the outright dismissal
of the appeal of petitioner Republic of the Philippines, especially so in the light of the undisputed fact that petitioner
had already filed with the lower court the record on appeal at the time the questioned dismissal order was issued by
the lower court. For, as ruled in one case, "... the delay of four days in filing a notice of appeal and a motion for an
extension of time to file a record on appeal can be excused on the basis of equity and considering that the record on
appeal is now with the respondent judge. ( Ramos vs. Bagasao, et al., G.R. No. 51552, February 28, 1980, Second
Division; emphasis supplied). Moreover, WE have already liberalized in a number of cases the jurisprudence on the
matter of perfection of appeals. For one, in De Las Alas vs. Court of Appeals (83 SCRA 200-216 [19781), WE ruled
that:

... litigation should, as much as possible, be decided on their merits and not on technicality, and
under the circumstances obtaining in this case, We said in the case of Gregorio vs. Court of
Appeals (L-4351 1, July 23, 1976, 72 SCRA 120, 126), thus:

... Dismissal of appeals purely on technical grounds is frowned upon where the
policy of the courts is to encourage hearing of appeals on their merits. The rules
of procedure ought not to be applied in a very rigid, technical sense; rules of
procedure are used only to help secure, not override, substantial justice. If a
technical and rigid enforcement of the rules is made, their aim would be
defeated.

xxx xxx xxx

III. Moreover, a special circumstance which is the subject of one of the main issues raised by petitioner in its appeal
warrants US to exercise once more OUR exclusive prerogative to suspend OUR own rules or to exempt a particular
case from its operation as in the recent case of Republic of the Philippines vs. Court of Appeals, et al. (83 SCRA 459,
478-480 119781), thus: ... The Rules have been drafted with the primary objective of enhancing fair trials and
expediting justice. As a corollary, if their application and operation tend to subvert and defeat instead of promote and
enhance it, their suspension is justified. In the words of Justice Antonio P. Barredo in his concurring opinion in
Estrada vs. Sto. Domingo, '(T)his Court, through the revered and eminent Mr. Justice Abad Santos, found occasion in
the case of C. Viuda de Ordoverza v. Raymundo, to lay down for recognition in holding that ' "it is always in the power
of the court (Supreme Court) to suspend its own rules or to except a particular case from its operation whenever the
purposes of justice require it . . . . .' " (Emphasis supplied). As emphasized by the Solicitor General, if the questioned
orders are not annulled and set aside, its enforcement and implementation will result to the prejudice of, and
irreparable injury to, public interest." This is so because the Government would lose its opportunity to assail the order
of the lower court dated December 8, 1978, the dispositive portion of which reads, as follows:

xxx xxx xxx

The joint report filed by the three-man committee charged with the determination of the just
compensation of the property herein sought to be condemned is hereby approved, such that the
just compensation of the land described in Paragraph 11 of the Complaint is fixed at Thirty Pesos
(P30.00) per square meter.

The defendant may now withdraw from the Philippine National Bank, Malolos Branch, the sum of
P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways
under Account No. 35109, said sum to be part of the total amount of P450,000.00 (15,000 square
meters at P30.00 per square meter), which the Department of Public Highways, Third Regional
Equipment Services, Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein
defendants as just compensation for the subject property.

SO ORDERED (pp. 3-4, Order dated December 8, 1978).

It must be stressed at this stage that the Government would lose no less than P425,000.00 if the
lower court's order of December 8, 1978 is not scrutinized on appeal. It must be stated that the
lower court was without jurisdiction to create a three-man committee because Sec. 5, Rule 67 of
the Revised Rules of Court was repealed by P.D. 76 which took effect on December 6, 1972, the
salient features of which read, as follows:

The "current and fair market value" shall be understood to mean the price of
which a willing seller would sell and a willing buyer would buy neither being under
abnormal pressure.

For purposes of just compensation in cases of private property acquired by the

government for public use, the basis shall be the current and fair market value
declared by the owner or administrator or such market value as determined by
the assessor, whichever is lower.

Thus, from December 6, 1972, the effectivity date of PD 76, the just compensation to be paid for
private property acquired by the government for public use is the current and fair market value
declared by the owner or administrator or such market value as determined by the Assessor
whichever is lower. Pursuant to said Decree, the government's obligation to private respondent
would only be P24,376.00. The lower court thus had no jurisdiction to fix an amount of just
compensation higher than P24,376.00. It follows therefore that the joint report submitted by the
three-man committee created by the lower court could not serve as a legal basis for the
determination of the just compensation of the property sought to be condemned.

xxx xxx xxx

(pp. 19-21, rec.).

IV. With respect to the motion to dismiss filed on December 22, 1980 by private respondents, WE find no merit
therein. The contention of private respondents that the June 23, 1980 motion for reconsideration of petitioner with the
Court of Appeals was pro forma is belied by the results obtained in this petition before US.

WHEREFORE, PETITION IS HEREBY GRANTED; THE DECISION DATED APRIL 29, 1980 AND THE
RESOLUTION DATED AUGUST 15, 1980 OF THE RESPONDENT COURT OF APPEALS ARE HEREBY
ANNULLED AND SET ASIDE; AND THE RESPONDENT COURT OF FIRST INSTANCE OF BULACAN IS HEREBY
DIRECTED TO APPROVE PETITIONER'S RECORD ON APPEAL AND TO ELEVATE THE SAME TO THE
HONORABLE COURT OF APPEALS. NO COST.

SO ORDERED.

Teehankee (Chairman), Fernandez and Guerrero, JJ., concur.

Melencio-Herrera, J., concur in the result.

FIRST DIVISION
[G.R. No. L-8492. February 29, 1956.]
In the Matter of the Declaration of the Civil Status of: LOURDES G. LUKBAN, Petitioner-Appellant, vs.
REPUBLIC OF THE PHILIPPINES, Oppositor-Appellee.
 DECISION
BAUTISTA ANGELO, J.:
This is a petition filed in the Court of First Instance of Rizal for a declaration that Petitioner is a widow of
her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a
subsequent marriage.
The Solicitor General opposed the petition on the ground that the same is not authorized by law.
After Petitioner had presented her evidence, the court sustained the opposition and dismissed the
petition. Hence this appeal.
Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on December 10,
1933 at the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes
after a violent quarrel and since then he has not been heard from despite diligent search made by her.
She also inquired about him from his parents and friends but no one was able to indicate his
whereabouts. She has no knowledge if he is still alive, his last known address being Calle Merced, Paco,
Manila. She believes that he is already dead because he had been absent for more than twenty years,
and because she intends to marry again, she desires that her civil status be defined in order that she
may be relieved of any liability under the law.
We believe that the petition at bar comes within the purview of our decision in the case of Nicolai
Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein it was held that a petition for judicial declaration
that Petitioner’s husband is presumed to be dead cannot be entertained because it is not authorized by
law, and if such declaration cannot be made in a special proceeding similar to the present, much less can
the court determine the status of Petitioner as a widow since this matter must of necessity depend upon
the fact of death of the husband. This the court can declare upon proper evidence, but not to decree
that he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).
The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of
this nature is well expressed in the case above-cited. Thus, we there said that “A judicial pronouncement
to that effect, even if final and executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration,
if it is the only question or matter involved in a case, or upon which a competent court has to pass . It is, cralaw

therefore, clear that a judicial declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot
reach the stage of finality or become final.”
Appellant claims that the remedy she is seeking for can be granted in the present proceedings because
in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special proceeding is “an
application or proceeding to establish the status or right of a party, or a particular fact”; but, aschan roblesvirtualawlibrary

already said, that remedy can be invoked if the purpose is to seek the declaration of death of the
husband, and not, as in the present case, to establish a presumption of death. If it can be satisfactorily
proven that the husband is dead, the court would not certainly deny a declaration to that effect as has
been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of the Revised
Penal Code, in defining bigamy, provides that a person commits that crime if he contracts a second
marriage “before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings” and, it is claimed, the present petition comes within the purview of
this legal provision. The argument is untenable for the words “proper proceedings” used in said article
can only refer to those authorized by law such as those which refer to the administration or settlement
of the estate of a deceased person (Articles 390 and 391, new Civil Code). That such is the correct
interpretation of the provision in question finds support in the case of Jones vs. Hortiguela, 64 Phil., 179,
wherein this Court made the following comment: chanroble svirtuallawlibrary

“For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that each former spouse is
generally reputed to be dead and the spouse present so believes at the time of the celebration of the
marriage (section III, paragraph 2, General Orders, No. 68).”
The decision appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes, J. B. L. and
Endencia, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14058 March 24, 1960

In the matter of the petition for the declaration of William Gue, presumptively dead. ANGELINA L.
GUE,petitioner-appellant,
vs.
THE REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

Virgilio V. David for appellant.

Office of the Solicitor General Edilberto Barot and Solicitor E. M. Salva for appellee.

MONTEMAYOR, J.:

This is an appeal from the order of the Court of First Instance of Manila, presided by Judge Bonifacio Ysip, dismissing
the petition of Angelina Gue. Involving as it does only question of law, the appeal was taken directly to us.

On November 20, 1957, Angelina L. Gue filed a petition in the Court of First Instance of Manila, Civil Case No. 34303,
alleging that she was married to William Gue; that they had a child named Anthony L. Gue; that January 5, 1946, her
husband left Manila where they were residing and went to Shanghai, China, but since then, he had not been heard of,
neither had he written to her, nor in anyway communicated with her as to his whereabouts; that despite her efforts
and diligence, she failed to locate him; and that they had not acquired any property during the marriage. She asked
the court for a declaration of the presumption of death of William Gue, pursuant to the provisions of Article 390 of the
Civil Code of the Philippines. After due publication and hearing, the trial court issued the order of dismissal, which we
reproduce below:

This is a petition filed by Angelina L. Gue to declare her husband. William Gue, presumptively dead. During
the hearing of this petition, it was established by the testimony of the petitioner that she and her husband
were married on October 11, 1944 in the City of Manila before the parish priest of Tondo, Manila, as shows
in Exhibit B, the marriage contract. Her husband, who is a Chinese citizen, left the Philippines for Shanghai
on January, 1946. The petitioner joined him in Shanghai in August of the same year. In January, 1949, the
petitioner came back to the Philippines alone with her children, on which occasion her husband promised to
follow her. However, up to the present time, said William Gue has not returned to the Philippines. From
January, 1949, the petitioner had sent letters to her husband in Shanghai, but she never received any reply
thereto. She made inquiries from the Bureau of Immigration in 1955 and 1958 as to whether her husband
had already returned to the Philippines and she received Exhibit D and Exhibit E from said Office, which
gave no information as to the whereabouts of her husband. It was also established by petitioner's testimony
that no properties have been acquired by said spouses during their union, and during which they begot two
children, named Eugeni and Anthony, surnamed Gue.

With this evidence on record and considering the allegations in the petition, it is clear that no right had been
established by the petitioner upon which a judicial decree may be predicated, and this action is not for the
settlement of the estate of the absentee, as it is clear that he did not leave any.

In the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81 Phil., 461, a case similar to the
present, the Supreme Court held:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he
possessed property brought to the marriage and because he had acquired no property during his married
life with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to
presume that a person is dead after the fact that such person had been unheard from in seven years had
been established. This presumption may arise and be invoked and made in a case, whether in an action or
in a special proceeding, which is tried or heard by, and submitted for decision to, a special proceeding. In
this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner for the final
determination of his right or status or for the ascertainment of a particular fact (Hagans vs. Wislizenus, 42
Phil., 880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely
asks for a declaration that he be presumed dead because he had been unheard from in seven years. If there
is any pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be
granted because it is unauthorized. The petition is for a declaration that the petitioner's husband is
presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation,
because such a presumption is established by law. A judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it
cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved
in a case, or upon which a competent court has to pass. The latter must decide finally the controversy the
right or status of a party or established finally a particular fact, out of which certain rights and obligations
arise or may arise; and once such controversy is decided by a final judgment or such right or status is
determined, then the judgment on the subject of the controversy, or the decree upon the right or status of a
party or upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except
in a few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a
person is presumptively dead, because he had been unheard from in seven years, being a presumption juris
tantum only, subject to contrary proof cannot reach the state of finality or become final. Proof of actual death
of the person presumed dead because he had been unheard from in seven years, would have to be made in
another proceeding to have such particular fact finally determined. If a judicial decree declaring a person
presumptively dead, because he had not been heard from in seven years, cannot become final and
executory even after the lapse of the reglementary period within which an appeal may be taken, for such a
 presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is
useless, unnecessary, superfluous and of no benefit to the petitioner. The Court should not waste its
valuable time and be made to perform a superfluous and meaningless act.

"Little effort is necessary to perceive that a declaration such as the one prayed for by the petitioner, if
granted, may make or lead her to believe that the marital bonds which binds her to her husband are torn
asunder, and that for that reason she is or may feel free to enter into a new marriage contract. The framers
of the rules of court, by the presumption provided for in the rule of evidence in question, did not intend and
mean that a judicial declaration based solely upon that presumption may be made. A petition for a
declaration such as the one filed in this case may be made in collusion with the other spouse. If that were
the case, then a decree of divorce that cannot be obtained or granted under the provisions of the Divorce
Law (Act No. 2710) could easily be secured by means of a judicial decree declaring a person unheard from
in seven years to be presumptively dead. This is another strong reason why a petition such as the one
presented in this case should not be countenanced and allowed. What cannot be obtained directly under the
provisions of the Divorce Law could indirectly be secured under the provisions of Rule 123, section 69 (x).
Obviously, the latter must not be made to prevail over the former."

In view of the foregoing and the doctrine of the Supreme Court laid down in the case above-cited, the Court
hereby orders that this case be, as it is hereby dismissed, without pronouncement as the costs.

In her appeal, Angelina invoked the provisions of the Article 390 of the New Civil Code, which for purpose of
reference, we reproduce below.

ART. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening this succession till after an absence of
ten years. If he disappeared after the of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.

She contends that under Article 191 of the Old Civil Code, which reads:

After thirty years have elapsed since disappearance of the absentee, or since he was last heard from, or
ninety years from his birth, the judgment upon the petition of any party lawfully interested, shall make an
order declaring that such absentee is presumed to be dead.

a person could be declared presumptively dead, but that said legal provision was repealed by the Code of Civil
Procedure and continued to be repealed by the Rules of Court. Consequently, only a mere disputable presumption of
death was available to any party, and that the case of Nicolai Szatraw, cited by the trial court, was decided on the law
then existing, namely, the Code of Civil Procedure, and later the new Rules of Court. However, according to
appellant, with the promulgation of the New Civil Code in 1950, particularly, Article 390 thereof, the Courts are now
authorized to declare persons presumptively dead.

In answer to her contention, the Solicitor General, as appellee herein, correctly cites our decision in the recent case
of Lourdes G. Lukban vs. Republic of the Philippines, 98 Phil., 574; 52 Off. Gaz., No. 3, 1441, decided long after the
New Civil Code went into effect, wherein we reiterated the doctrine laid own in Nicolai Szatraw, supra. We quote the
pertinent portions of our decision in that case:

This is a petition filed in the Court of First Instance of Rizal for a declaration that petitioner is a widow of her
husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a
subsequent marriage.

The Solicitor General opposed the petition on the ground that the same is not authorized by law. After
petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Hence
this appeal.

Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1933
at the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a
violent quarrel and since then he has not been heard from despite diligent search made by her. She also
inquired about him from his parents and friends but no one was able to indicate his whereabouts. She has
no knowledge if he is still alive, his last known address being Calle Merced, Paco, Manila. She believes that
he is already dead because he had been absent for more than twenty years, and because she intends to
marry again, she desires that her civil status be defined in order that she may be relieved of any liability
under the law.

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szatraw,
46 Off. Gaz. 1st Sup. 243, wherein it was held that a petition for judicial declaration that petitioner's husband
is presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration
cannot be made in a special proceedings similar to the present, much less can the court determine the
status of petitioner as a widow since this matter must of necessity depend upon the fact of death of the
husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to
be dead. (Nicolai Szatraw, 48 Off. Gaz., 1st Sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this
nature is well expressed in the case above-cited. Thus, we there said that "A judicial pronouncement to that
effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for
that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question
or matter involved in a case, or upon which a competent court has to pass .. It is, therefore, clear that a
 judicial declaration that a person is presumptively dead, because he had been unheard from in seven years,
being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become
final."

We deem it unnecessary to further discuss the merits of the case. The appealed order dismissing the petition is
hereby affirmed, with costs.

Paras, C. J., Bengzon, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 169575 March 30, 2011

IMELDA PANTOLLANO (for herself as surviving spouse and in behalf of her 4 children Honeyvette, Tierra
Bryn, Kienne Dionnes, Sherra Veda Mae, then all minors, with deceased seaman VEDASTO
PANTOLLANO),Petitioner,
vs.
KORPHIL SHIPMANAGEMENT AND MANNING CORPORATION, Respondent.

DECISION

DEL CASTILLO, J.:

The heirs of a missing seaman may file their claim for death compensation benefits within the three-year period fixed
by law from the time the seaman has been presumed dead.

This Petition for Review on Certiorari1 assails the Decision2 dated June 30, 2005 of the Court of Appeals (CA) in CA-
G.R. SP No. 78759, which granted the petition for certiorari and reversed and set aside the Resolutions dated May
30, 20033 and July 31, 20034 of the National Labor Relations Commission (NLRC) in NLRC NCR CASE No. OFW (M)
2000-05-00302-30 (NLRC NCR CA No. 031095-02).

Factual Antecedents

Korphil Shipmanagement and Manning Corporation (Korphil) is a domestic corporation engaged in the recruitment of
seafarers for its foreign principals. On March 24, 1994, it hired Vedasto C. Pantollano (Vedasto) as 4th Engineer on
board the vessel M/V Couper under a Philippine Overseas Employment Agency (POEA) approved contract 5 of
employment, with the following terms and conditions:

Duration of Contract : 12 months

Position : Fourth Engineer

Basic Monthly Salary : USD 550.00

Hours of Work : 48 hours per week

Overtime : USD 165.00

Vacation Leave With Pay : 3 days/month

On August 2, 1994, at about 6:45 A.M., Vedasto was seen by Messman Nolito L. Tarnate (Messman Nolito) to be in
deep thought, counting other vessels passing by and talking to himself. At about 8:15 A.M., the Chief Engineer of the
vessel reported to the Master of the vessel, Mr. Kim Jong Chul, that Vedasto did not show up for his duty. The Master
of the vessel thus ordered all personnel on stand by. The vessel then altered its course to search for Vedasto. Some
crew members were tasked to search the vessel while others were assigned to focus their search on the open sea to
locate and rescue Vedasto. Assistance from other vessels was also requested. The search and rescue operation
lasted for about six hours, but Vedasto was not found. On August 3, 1994, a Report6 was issued by the Master of M/V
Couper declaring that Vedasto was missing. His wife, Imelda Pantollano (Imelda), was likewise informed about the
disappearance of Vedasto while onboard M/V Couper. Since then, Vedasto was never seen again.

On May 29, 2000, Imelda filed a complaint7 before the NLRC where she sought to recover death benefits, damages
and attorney’s fees.

Ruling of the Labor Arbiter

On January 31, 2002, Labor Arbiter Renaldo O. Hernandez rendered a Decision 8 holding that the legal heirs of
Vedasto are entitled to the payment of death benefits and attorney’s fees. The dispositive portion of the Labor
Arbiter’s Decision reads:
WHEREFORE, premises considered, judgment is entered finding respondents liable for the claimed death benefits to
complainant-in-representation thus ORDERING respondent[’s] principal and local manning agent, along with the
latter’s corporate officers and directors, jointly and severally:

1. [T]o pay to the deceased complainant’s legal heirs/beneficiaries Imelda Pantollano and their four minor children,
viz., Honeyvette L. Pantollano born 10/30/81, Tierra Bryn L. Pantollano born 04/17/84, Kienne Dionnes L. Pantollano
born 08/29/89, and Sherra Veda Mae L. Pantollano born 11/21/90, death benefits under the POEA Rules and
Regulations of US$50,000.00 and US$ 28,000.00 (US$7,000.00 each) for the said 4 minor children;

2. [T]o give and/or pay to them the proceeds of seafarer V. Pantollano[’s] coverage for Comprehensive Life, Health,
Medical and Disability Insurance with various P and I Clubs for the Owner’s Protection and Indemnity against any
such claim against all hazards and risks in operating the vessel pursuant to maritime commerce;

3. [To] pay attorney’s fees of 10% of the total monetary amount awarded.

Other claims of complainant-in-representation are denied for lack of merit.

SO ORDERED.9

Ruling of the National Labor Relations Commission

Korphil sought recourse to the NLRC by submitting its Notice of Appeal 10

With Memorandum of Appeal on March 6, 2002. On June 7, 2002, Korphil filed a Supplemental Appeal11 to their
Memorandum of Appeal.

On July 31, 2002, the NLRC issued a Resolution12 reversing and setting aside the January 31, 2002 Decision of the
Labor Arbiter. According to the NLRC, the death of Vedasto which was clearly shown by evidence to be a case of
suicide was not compensable under the clear provisions of the POEA Standard Employment Contract.

Imelda filed a Motion for Reconsideration13 which was opposed by Korphil.14

In a Resolution15 dated May 30, 2003, the NLRC reversed its July 31, 2002 Resolution and reinstated the January 31,
2002 Decision of the Labor Arbiter.

Korphil filed a Motion for Reconsideration16 which was denied by the NLRC through its Resolution17 dated July 31,
2003.

Ruling of the Court of Appeals

Aggrieved, Korphil filed with the CA a Petition for Certiorari.18 On October 10, 2003, Imelda filed her
Comment.19Korphil did not file its reply and so the CA in a Resolution20 dated December 4, 2003 deemed that it had
waived the right to file its reply. The CA directed the parties to submit their respective memoranda and then the case
was declared submitted for decision.

On June 30, 2005, the CA issued its assailed Decision which granted the petition, reversed and set aside the May 30,
2003 Resolution of the NLRC, and dismissed the case for lack of merit. It held that under Article 291 of the Labor
Code, Imelda should have filed her complaint within three years from the time the cause of action accrued. Thus,
Imelda should have filed her complaint within three years from Vedasto’s disappearance on August 2, 1994. Having
filed her complaint only on May 29, 2000, the same is already barred by prescription.

Imelda moved for reconsideration21 but to no avail. Hence, this appeal ascribing upon the CA the following errors:

1. The Honorable Court of Appeals erred in law when it held that Art. 291 of the x x x Civil Code [applies] only in case
of settlement of estates, not in the claim for death compensation benefits under the Labor Code.

2. The Honorable Court of Appeals erred in law when it applied as precedent the case of Caltex (Phils.) Inc. vs.
Cristela Villanueva, G.R. No. L-15658, August 21, 1961.

3. Assuming arguendo that Art. 391 of the x x x Civil Code does not apply, the Honorable Court of Appeals erred in
law in refusing to apply the rule on estoppel against the respondent company, thereby giving premium on the
respondent’s deception of invoking prematurity when the petitioner timely demanded her death compensation
benefits but then raised the defense of prescription when she reiterated her claim after waiting for the lapse of four (4)
years as earlier advised by the respondent company. 22

The above issues boil down to a single issue of whether the claim of Imelda for death compensation benefits filed on
May 29, 2000, or more than five years from the time her husband Vedasto was reported missing on August 2, 1994,
is already barred by prescription following the provisions of Article 291 of the Labor Code.

Imelda’s Arguments

Imelda contends that her claim was not yet barred by prescription when she filed it on May 29, 2000. She avers that
when she went to the office of Korphil to claim the death benefits due to the heirs of her husband, Korphil advised her
that it was still premature and that she has to wait for the lapse of four years before her husband Vedasto could be
declared dead. This is in accordance with the provisions of Article 391 of the Civil Code.

However, when she came back after four years, she was told that her claim has already prescribed pursuant to
Article 291 of the Labor Code. Imelda asserts that Korphil is, therefore, estopped from interposing the defense of
prescription in this case as it was Korphil itself which advised her to wait for at least four years before filing the claim
for death benefits. However, the CA ignored this very material fact albeit conspicuously discussed as one of Imelda’s
arguments.

Imelda further contends that the CA erred when it held that Article 391 of the Civil Code applies only in cases of
settlement of estates, and not to cases of death compensation claims as in this case.

Korphil’s Arguments

Korphil, on the other hand, argues that prescription of actions for money claims arising from employer-employee
relationship is governed by Article 291 of the Labor Code. The three-year prescriptive period referred to in Article 291
shall commence to run from the time the cause of action accrued.

According to Korphil, the unexplained disappearance on August 2, 1994 of Vedasto occurred on the high seas where
there is inherent impossibility for him to leave the ship. The fact that he could not be found dead or alive despite best
efforts of all the crew members and the other vessels which responded to the distress call, and the failure of Imelda to
establish that Vedasto is still alive are more than substantial proofs to establish that the latter died on August 2, 1994.
Therefore, prescription should be reckoned from this date which is considered as the time of death of Vedasto. It is
also at this point that the obligation of Korphil to pay death compensation can be demanded as a matter of right by
the heirs of Vedasto.

Korphil posits that since Imelda filed only on May 29, 2000, or almost five years and ten months from August 2, 1994,
her claim to recover death benefits, damages, and attorney’s fees is, therefore, already barred by the three-year
prescriptive period under Article 291 of the Labor Code.

Our Ruling

The petition is impressed with merit.

In Medline Management, Inc. v. Roslinda,23 we declared that "in order to avail of death benefits, the death of the
employee should occur during the effectivity of the employment contract. The death of a seaman during the term of
employment makes the employer liable to his heirs for death compensation benefits. Once it is established that the
seaman died during the effectivity of his employment contract, the employer is liable."

In this case, there is no dispute that Vedasto went missing on August 2, 1994, during the effectivity of his employment
contract. Thus, his beneficiaries are entitled to the death benefits under the POEA Standard Employment Contract for
Seafarers, Section 20 of which states:

SECTION 20. COMPENSATION AND BENEFITS

A. COMPENSATION AND BENEFITS FOR DEATH

In the case of work-related death of the seafarer during the term of his contract, the employer shall pay his
beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$ 50,000) and an
additional amount of Seven Thousand US dollars (US$ 7,000) to each child under the age of twenty-one (21) but not
exceeding four (4) children, at the exchange rate prevailing during the time of payment.

xxxx

Thus, upon the death of Vedasto, his heirs, specifically Imelda and their four children, are entitled to US$50,000.00
as well as US$7,000.00 for each child under the age of 21. The status of Imelda and her four children as the
legitimate beneficiaries of Vedasto was never questioned. The only issue raised by Korphil was the prescription of
their claim.

Korphil is estopped from asserting that the reckoning point for prescription to set in is August 2, 1994.

Preliminarily, it must be stressed that Korphil is estopped from asserting that Imelda’s cause of action accrued on
August 2, 1994. Korphil could not deny the fact that it is a party to another case filed by Gliceria P. Echavez
(Gliceria), the mother of Vedasto. In this case, Gliceria claimed death benefits due to the death of her son Vedasto. In
a Decision24 dated October 15, 1997, Labor Arbiter Dominador A. Almirante ruled that the claim was prematurely filed
and hence it must be dismissed without prejudice to the re-filing of the same at the right time. The case was re-filed
on August 26, 1998. In a decision25 dated February 22, 1999, Labor Arbiter Almirante ruled that Korphil is liable for
the payment of death benefits to Gliceria. Korphil appealed to the NLRC. On November 19, 1999, the NLRC rendered
its Decision26 which dismissed the appeal and affirmed the Labor Arbiter’s Decision.

Korphil filed with the CA a petition for certiorari27 which was docketed as CA-G.R. SP No. 58933. In the said petition,
Korphil advanced the following arguments:

Inasmuch as the missing seaman’s death cannot be proven, Mr. Pantollano cannot be presumed dead right away
considering that the New Civil Code as well as the Rules of Court provide for a specific rule before a missing person
can be properly presumed dead. We shall quote in full the said provision as follows:
After an absence of seven (7) years, it being unknown whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.

xxxx

Considering that Mr. Pantollano has been absent only for less than six (6) years, his death cannot be legally
presumed. If Mr. Pantollano cannot be considered to have died at the time of his disappearance or cannot be legally
presumed dead as of the present time by virtue of Article 390 of the Civil Code, public respondent NLRC cannot
successfully apply the provision of Section 20 (A) (1) of the POEA Standard Employment Contract because the death
of Mr. Pantollano indeed had never occurred. Even [if] a perspicacious, thorough and exhaustive perusal is made on
the pertinent provisions of the POEA Standard Employment Contract, this Honorable Court cannot find a provision
which gives death compensation to a seafarer who had just disappeared or was merely declared as missing.

In view of the fact that the death of the seaman was not duly proven and the period within which the missing seaman
can be lawfully presumed dead has not been complied with, it becomes clear that public respondent NLRC indeed
committed serious error when it affirmed the Decision of the Labor Arbiter awarding death compensation to private
respondent.28

The CA dismissed the claim of Gliceria because the natural mother is not the beneficiary contemplated by law
notwithstanding the fact that she was designated by her deceased son as the sole allottee and beneficiary. If there is
any party entitled to the death compensation benefits, it is Vedasto’s surviving spouse and children and not her
mother.

Gliceria thus filed a petition for review with this Court which was docketed as G.R. No. 157424. In a Resolution dated
August 6, 2003, the Court denied the same for the failure of Gliceria to file the appeal within the extended period in
accordance with Section 2, Rule 45 of the Rules of Court and for her failure to properly verify the petition in
accordance with Section 1, Rule 45 in relation to Section 4, Rule 7, since the verification is based on affiant’s
personal knowledge, information and belief, as a consequence of which the petition was treated as an unsigned
pleading which under Section 3, Rule 7, produces no legal effect.

But what is obvious is that in the earlier claim for compensation benefits filed by Gliceria, who wanted to arrogate
unto herself the said benefits, Korphil was claiming that it was still premature because the death of Vedasto was not
yet duly proven and the period that must elapse before a seaman can be lawfully presumed dead has not been
complied with. Consequently, Korphil is estopped from insisting in this later case filed by Imelda that Vedasto should
be considered dead from the time he went missing on August 2, 1994 and therefore the claim was filed beyond the
allowable period of three years.

This Court is mindful of the fact that as soon as Imelda came to know about the missing status of her husband on
August 2, 1994, she went to Korphil to file her claim for the payment of death benefits. However, the latter informed
her that it was still premature to claim the same and advised her instead to wait four more years before her husband
could be presumed dead thereby entitling his heirs to death benefits. Korphil is therefore guilty of estoppel.

"Under the doctrine of estoppel, an admission or representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying thereon. A party may not go back on his own acts
and representations to the prejudice of the other party who relied upon them. In the law of evidence, whenever a
party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular
thing true, to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be
permitted to falsify it."29

Imelda’s cause of action accrued only on August 2, 1998 and not on August 2, 1994.

According to Korphil, Article 291 of the Labor Code is applicable in this case as it provides:

ART. 291. Money Claims. – All money claims arising from employer-employee relations accruing during the effectivity
of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be
forever barred.

xxxx

Korphil posits that the three-year prescriptive period referred to in Article 291 shall commence to run from the time the
cause of action accrued, i.e., at the time Vedasto died on August 2, 1994. Hence, when Imelda filed her claim on May
29, 2000, the same has already prescribed.

We are not persuaded. On August 2, 1994, it cannot as yet be presumed that Vedasto is already dead. "The boat
was not lost. This opens up a number of possibilities. x x x [N]othing is certain. Nobody knows what has happened to
him. He could have transferred to another vessel or watercraft. He could even have swum to safety. Or he could have
died. Or worse, he could have taken his own life. Legal implications – such as right to compensation, succession, the
legal status of the wife – are so important that courts should not so easily be carried to the conclusion that the man is
dead. The result is that death cannot be taken as a fact." 30

A person missing under the circumstances as those of Vedasto may not legally be considered as dead until the lapse
of the period fixed by law on presumption of death, and consequently Imelda cannot yet be considered as a widow
entitled to compensation under the law.

On August 2, 1994, when Vedasto was reported missing, Imelda cannot as yet file her claim for death benefits as it is
still premature. The provisions of Article 391 of the Civil Code therefore become relevant, to wit:
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;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been
known for four years. (Emphasis supplied.)

With the known facts, namely, that Vedasto was lost or missing while M/V Couper was navigating the open sea, there
is no doubt that he could have been in danger of death. Paragraph (3) of Article 391 of the Civil Code will then be
applicable in this case. Thus, Vedasto can only be presumed dead after the lapse of four years from August 2, 1994
when he was declared missing. But of course, evidence must be shown that Vedasto has not been heard of for four
years or thereafter. This is the case here.

Vedasto is presumed legally dead only on August 2, 1998. It is only at this time that the rights of his heirs to file their
claim for death benefits accrued.

Korphil then further argued that although Vedasto was declared dead only on August 2, 1998, his death should be
considered on the very day of the occurrence of the event from which death is presumed. Thus, the death of Vedasto
should retroact to August 2, 1994. The three-year prescriptive period under Article 291 of the Labor Code will
therefore be reckoned on August 2, 1994.

We do not agree.

If we allow such an argument, then no claim for death compensation benefits under this circumstance will ever
prosper. This is so because the heirs of a missing seaman have to wait for four years as provided under Article 391 of
the Civil Code before the seaman is declared as legally dead. After four years, the prescriptive period for filing money
claims under Article 291 of the Labor Code would, obviously, lapse. This scenario could not have been the intention
of the legislature in enacting a social legislation, such as the Labor Code.

Imelda’s claim for death compensation benefits was filed on time. 1âwphi 1

Having already established that Imelda’s cause of action accrued on August 2, 1998, it follows that her claim filed on
May 29, 2000 was timely. It was filed within three years from the time the cause of action accrued pursuant to Article
291 of the Labor Code. Hence, Imelda and her children are entitled to the payment of said compensation.

WHEREFORE, the instant petition for review on certiorari is GRANTED. The Decision of the Court of Appeals in CA-
G.R. SP No. 78759 dated May 30, 2005, is SET ASIDE and the May 30, 2003 Resolution of the NLRC
is REINSTATED and AFFIRMED.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G. R. No. 187512

Petitioner,

Present:

CARPIO, J., Chairperson,

- versus - BRION,

PEREZ,

SERENO, and
 REYES, JJ.

YOLANDA CADACIO GRANADA,

Respondent. Promulgated:

June 13, 2012

x--------------------------------------------------x

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January
2009[1] and 3 April 2009[2] issued by the Court of Appeals (CA), which affirmed the
grant by the Regional Trial Court (RTC) of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus

Granada (Cyrus) at Sumida Electric Philippines, an electronics
company in Paranaque where both were then working. The two eventually got
married at the Manila City Hall on 3 March 1993. Their marriage resulted in the
birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down,

Cyrus went to Taiwan to seek employment. Yolanda claimed that from that time,
she had not received any communication from her husband, notwithstanding
efforts to locate him. Her brother testified that he had asked the relatives of
Cyrus regarding the latters whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus
declared presumptively dead. The Petition was raffled to Presiding Judge Avelino
Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-
0530.
 On 7 February 2005, the RTC rendered a Decision declaring Cyrus as
presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by

the Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this
Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to
locate Cyrus and thus failed to prove her well-founded belief that he was already
dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA,

presumably under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a
Motion to Dismiss on the ground that the CA had no jurisdiction over the appeal.
She argued that her Petition for Declaration of Presumptive Death, based on
Article 41 of the Family Code, was a summary judicial proceeding,
in which the judgment is immediately final and executory and, thus, not
appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas

Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v.
Bermudez-Lorino,[3] the CA ruled that a petition for declaration of presumptive
death under Rule 41 of the Family Code is a summary proceeding. Thus, judgment
thereon is immediately final and executory upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by
the CA in a Resolution dated 3 April 2009.[4]

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the

Petition on the ground that the Decision of the RTC in a summary
proceeding for the declaration of presumptive death is immediately
final and executory upon notice to the parties and, hence, is not
subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs

grant of the Petition for Declaration of Presumptive Death under
Article 41 of the Family Code based on the evidence that respondent
presented
 Our Ruling

1. On whether the CA seriously erred in

dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for
the declaration of presumptive death is
immediately final and executory upon notice to
the parties and, hence, is not subject to ordinary
appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the

Petition assailing the RTCs grant of the Petition for Declaration of Presumptive
Death of the absent spouse under Article 41 of the Family Code. Citing Republic v.
Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary judicial
proceeding under the Family Code. Hence, the RTC Decision therein is
immediately final and executory upon notice to the parties, by express provision
of Article 247 of the same Code. The decision is therefore not subject to ordinary
appeal, and the attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse

for the purpose of contracting a subsequent marriage under Article 41 of the
Family Code is a summary proceeding as provided for under the Family Code.
 Further, Title XI of the Family Code is entitled Summary Judicial Proceedings
in the Family Law. Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide
that since a petition for declaration of presumptive death is a summary
proceeding, the judgment of the court therein shall be immediately final and
executory.

In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs

affirmation of the RTCs grant of respondents Petition for Declaration of
Presumptive Death of her absent spouse. The Court therein held that it was an
error for the Republic to file a Notice of Appeal when the latter elevated the
matter to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because judgments
rendered thereunder, by express provision of Section 247, Family Code, supra, are
immediately final and executory.

xxx xxx xxx

But, if only to set the records straight and for the future guidance of the bench
and the bar, let it be stated that the RTCs decision dated November 7, 2001, was
immediately final and executory upon notice to the parties. It was erroneous for the
OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of
Appeals acquired no jurisdiction over the case, and should have dismissed the appeal
outright on that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the

result reached by the Court in Republic v. Bermudez-Lorino, additionally opined
that what the OSG should have filed was a petition for certiorari under Rule 65,
not a petition for review under Rule 45.
 In the present case, the Republic argues that Bermudez-Lorino has been
superseded by the subsequent Decision of the Court in Republic v. Jomoc,[7] issued
a few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of

Presumptive Death of her absent husband for the purpose of remarriage.
Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The
trial court disapproved the Notice of Appeal on the ground that, under
the Rules of Court,[8] a record on appeal is required to be filed when appealing
special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA,
this Court clarified that while an action for declaration of death or absence under
Rule 72, Section 1(m), expressly falls under the category of special proceedings, a
petition for declaration of presumptive death under Article 41 of the Family Code
is a summary proceeding, as provided for by Article 238 of the same Code. Since
its purpose was to enable her to contract a subsequent valid marriage, petitioners
action was a summary proceeding based on Article 41 of the Family Code, rather
than a special proceeding under Rule 72 of the Rules of Court. Considering
that this action was not a special proceeding, petitioner was not required to file a
record on appeal when it appealed the RTC Decision to the CA.

We do not agree with the Republics argument that Republic v.

Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the
CA, the Supreme Court in Jomoc did not expound on the characteristics of a
summary proceeding under the Family Code. In contrast, the Court in Bermudez-
Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as
a vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was
intended to set the records straight and for the future guidance of the bench and
the bar.

At any rate, four years after Jomoc, this Court settled the rule regarding
appeal of judgments rendered in summary proceedings under the Family Code
when it ruled in Republic v. Tango:[9]

This case presents an opportunity for us to settle the rule on appeal of

judgments rendered in summary proceedings under the Family Code and accordingly,
refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court
proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.
 In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 217, insofar as they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and
executory.

By express provision of law, the judgment of the court in a summary proceeding

shall be immediately final and executory. As a matter of course, it follows that no appeal
can be had of the trial court's judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction. Such petition should be
filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To
be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of court forum. From the decision of the
Court of Appeals, the losing party may then file a petition for review on certiorari under
Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which
the court may commit in the exercise of jurisdiction are merely errors of judgment
which are the proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary
proceeding for the declaration of presumptive death may file a petition for
certiorari with the CA on the ground that, in rendering judgment thereon, the trial
court committed grave abuse of discretion amounting to lack of jurisdiction. From
the decision of the CA, the aggrieved party may elevate the matter to this Court
via a petition for review on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republics
Notice of Appeal on the ground that the RTC judgment on the Petition for
Declaration of Presumptive Death of respondents spouse was immediately final
and executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in

affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that
respondent had presented
 Petitioner also assails the RTCs grant of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent on the ground that she
had not adduced the evidence required to establish a well-founded belief that her
absent spouse was already dead, as expressly required by Article 41 of the Family
Code. Petitioner cites Republic v. Nolasco,[10] United States v.
[11] [12]
Biasbas and Republic v. Court of Appeals and Alegro as authorities on the
subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of

the RTCs grant of respondents Petition for Declaration of Presumptive Death of
his absent spouse, a British subject who left their home in the Philippines soon
after giving birth to their son while respondent was on board a vessel working as
a seafarer. Petitioner Republic sought the reversal of the ruling on the ground
that respondent was not able to establish
his well-founded belief that the absentee is already dead, as required by Article
41 of the Family Code. In ruling thereon, this Court recognized that this provision
imposes more stringent requirements than does Article 83 of the Civil
Code.[13] The Civil Code provision merely requires either that there be no news
that the absentee is still alive; or that the absentee is generally considered to be
dead and is believed to be so by the spouse present, or is presumed dead under
Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision
prescribes a well-founded belief that the absentee is already dead before a
petition for declaration of presumptive death can be granted. As noted by the
Court in that case, the four requisites for the declaration of presumptive death
under the Family Code are as follows:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.

In evaluating whether the present spouse has been able to prove the
existence of a well-founded belief that the absent spouse is already dead, the
Court in Nolasco cited United States v. Biasbas,[14] which it found to be instructive
as to the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due
diligence in ascertaining the whereabouts of his first wife, considering his
admission that that he only had a suspicion that she was dead, and that the only
basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic

sought the reversal of the CA ruling affirming the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse on the ground that the
respondent therein had not been able to prove a well-founded belief that his
spouse was already dead. The Court reversed the CA, granted the Petition, and
provided the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent
and that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what is
meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia
sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It
may be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded in
truth. Any fact or circumstance relating to the character, habits, conditions,
attachments, prosperity and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends to explain or characterize
their disappearance or throw light on their intentions, competence [sic] evidence on the
ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead. Whether or not the spouse
present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and
the nature and extent of the inquiries made by present spouse. (Footnotes omitted,
underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out
that respondent Yolanda did not initiate a diligent search to locate her absent
husband. While her brother Diosdado Cadacio testified to having inquired about
the whereabouts of Cyrus from the latters relatives, these relatives were not
presented to corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner argues that if she
were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She
could have also utilized mass media for this end, but she did not. Worse, she
failed to explain these omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained

to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her
well-founded belief that her absent spouse was already dead prior to her filing of
the Petition to declare him presumptively dead is already final and can no longer
be modified or reversed. Indeed, [n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of fact or
law.[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court of

Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165
are AFFIRMED.

SO ORDERED.
THIRD DIVISION

[G.R. No. 160258. January 19, 2005]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZ-

LORINO, respondent.

DECISION
GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Republic of the Philippines, represented by the Office of the Solicitor General
(OSG), seeks the reversal and setting aside of the decision dated September 23, 2003
of the Court of Appeals in CA-G.R. CV No. 73884, which affirmed on appeal an earlier
decision of the Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial
proceeding thereat commenced by the herein respondent Gloria Bermudez-Lorino for
the declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr.,
based on the provisions of Article 41 of the Family Code, for purposes of remarriage.

The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were
married on June 12, 1987. Out of this marriage, she begot three (3) children, namely:
Francis Jeno, Fria Lou and Fatima.
Before they got married in 1987, Gloria was unaware that her husband was a
habitual drinker, possessed with violent character/attitude, and had the propensity to go
out with friends to the extent of being unable to engage in any gainful work.
 Because of her husbands violent character, Gloria found it safer to leave him behind
and decided to go back to her parents together with her three (3) children. In order to
support the children, Gloria was compelled to work abroad.
From the time of her physical separation from her husband in 1991, Gloria has not
heard of him at all. She had absolutely no communications with him, or with any of his
relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified
petition with the Regional Trial Court (RTC) at San Mateo, Rizal under the rules
on Summary Judicial Proceedings in the Family Law provided for in the Family Code,
which petition was docketed in the same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the publication of
the petition in a newspaper of general circulation, thus:

A verified petition was filed by herein petitioner through counsel alleging that she
married Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of
his husband, she decided to go back to her parents and lived separately from her
husband. After nine (9) years, there was absolutely no news about him and she
believes that he is already dead and is now seeking through this petition for a Court
declaration that her husband is judicially presumed dead for the purpose of
remarriage.

Finding the said petition to be sufficient in form and substance, the same is hereby set
for hearing before this Court on September 18, 2000 at 8:30 oclock in the morning at
which place, date and time, any or all persons who may claim any interest thereto may
appear and show cause why the same should not be granted.

Let a copy of this Order be published in a newspaper of general circulation in this

province once a week for three (3) consecutive weeks and be posted in the bulletin
boards of the Hall of Justice and the Municipal Hall, San Mateo, Rizal, all at the
expense of the petitioner.

Furnish the Office of the Solicitor General a copy of this Order together with a copy
of the petition. Further, send a copy of this Order to the last known address of
Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.

SO ORDERED [1]

The evidence in support of the summary judicial proceeding are: the order of
publication dated August 28, 2000 (Exhibit A); affidavit of publication dated September
16, 2000 (Exhibit B)[2]; copies of the newspapers where the order appeared (Exhibits C
to E-1)[3]; a deposition dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit
G)[4]; Glorias affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit
G-1)[5]; and a certification by Department of Foreign Affairs Authentication Officer,
Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of
Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit
of October 21, 1999, is authentic (Exhibit G-2)[6].
In a decision dated November 7, 2001, the RTC, finding merit in the summary
petition, rendered judgment granting the same, to wit:

WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the
petition with merit and hereby grants its imprimatur to the petition. Judgment is
hereby rendered declaring the presumptive death/absence of Francisco Lorino, Jr.
pursuant to Art. 41 of the New Family Code but subject to all restrictions and
conditions provided therein.

SO ORDERED. [7]
 Despite the judgment being immediately final and executory under the provisions of
Article 247 of the Family Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,

the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed
a Notice of Appeal.[8] Acting thereon, the RTC had the records elevated to the Court of
Appeals which docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as
an ordinary appealed case under Rule 41 of the Revised Rules on Civil Procedure,
denied the Republics appeal and accordingly affirmed the appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED.

Accordingly, the appealed November 7, 2001 Decision of the Regional Trial Court of
San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED.

SO ORDERED. [9]

Without filing any motion for reconsideration, petitioner Republic directly went to this
Court via the instant recourse under Rule 45, maintaining that the petition raises a pure
question of law that does not require prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED
JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT
OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE
FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, sets the tenor for cases covered by these rules,
to wit:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied
with the above-cited provision by expeditiously rendering judgment within ninety (90)
days after the formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the Republics appeal
upon the filing of a Notice of Appeal, and had the entire records of the case elevated to
the Court of Appeals, stating in her order of December 18, 2001, as follows:

Notice of Appeal having been filed through registered mail on November 22, 2001 by
the Office of the Solicitor General who received a copy of the Decision in this case on
November 14, 2001, within the reglementary period fixed by the Rules, let the entire
records of this case be transmitted to the Court of Appeals for further proceedings.

SO ORDERED. [10]

In Summary Judicial Proceedings under the Family Code, there is no reglementary

period within which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family Code, supra, are immediately
final and executory. It was erroneous, therefore, on the part of the RTC to give due
course to the Republics appeal and order the transmittal of the entire records of the
case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express
provision of law, is immediately final and executory. As we have said in Veloria vs.
Comelec,[11] the right to appeal is not a natural right nor is it a part of due process, for it is
merely a statutory privilege. Since, by express mandate of Article 247 of the Family
Code, all judgments rendered in summary judicial proceedings in Family Law are
immediately final and executory, the right to appeal was not granted to any of the
parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to
appeal the RTC decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its Special Fourth
Division, with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied
the Republics appeal and affirmed without modification the final and executory judgment
of the lower court. For, as we have held in Nacuray vs. NLRC:[12]

Nothing is more settled in law than that when a judgment becomes final and executory
it becomes immutable and unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law, and whether made by the highest court of the land
(citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).

But, if only to set the records straight and for the future guidance of the bench and
the bar, let it be stated that the RTCs decision dated November 7, 2001, was
immediately final and executory upon notice to the parties. It was erroneous for the
OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of
Appeals acquired no jurisdiction over the case, and should have dismissed the appeal
outright on that ground.
This judgment of denial was elevated to this Court via a petition for review on
certiorari under Rule 45. Although the result of the Court of Appeals denial of the appeal
would apparently be the same, there is a big difference between having the supposed
appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision
sought to be appealed is immediately final and executory, and the denial of the appeal
for lack of merit. In the former, the supposed appellee can immediately ask for the
issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can
still raise the matter to this Court on petition for review and the RTC judgment cannot be
executed until this Court makes the final pronouncement.
The Court, therefore, finds in this case grave error on the part of both the RTC and
the Court of Appeals. To stress, the Court of Appeals should have dismissed the appeal
on ground of lack of jurisdiction, and reiterated the fact that the RTC decision of
November 7, 2001 was immediately final and executory. As it were, the Court of
Appeals committed grave reversible error when it failed to dismiss the erroneous appeal
of the Republic on ground of lack of jurisdiction because, by express provision of law,
the judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Panganiban, (Chairman), J., in the result.
SECOND DIVISION

[G.R. No. 137774. October 4, 2002]

SPOUSES MANUEL R. HANOPOL and BEATRIZ T.
HANOPOL, petitioners, vs. SHOEMART INCORPORATED,
Represented by Executive Vice President, SENEN T.
MENDIOLA, respondent.

[G.R. No. 148185. October 4, 2002]

SPOUSES MANUEL R. HANOPOL and BEATRIA T.

HANOPOL, petitioners, vs. HON. COURT OF APPEALS and
SHOEMART, INC., Represented by SENEN T.
MENDIOLA, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Before us are consolidated petitions for review on certiorari filed under

Rule 45 of the Rules of Court seeking to set aside the decisions of the Court
of Appeals in CA-G.R. CV Nos. 45500 and 56691. [1] [2]

Shoemart, Inc., is a corporation duly organized and existing under the

laws of the Philippines engaged in the operation of department stores. On
December 4, 1985, Shoemart, through its Executive Vice-President, Senen T.
Mendiola, and spouses Manuel R. Hanopol and Beatriz T. Hanopol executed
a Contract of Purchase on Credit. [3]

Under the terms of the contract, Shoemart extended credit

accommodations, in the amount of Three Hundred Thousand Pesos
(P300,000.00), for purchases on credit made by holders of SM Credit Card
issued by spouses Hanopol for one year, renewable yearly
thereafter. Spouses Hanopol were given a five percent (5%) discount on all
[4]

purchases made by their cardholders, deductible from the semi-monthly

payments to be made to Shoemart by spouses Hanopol. [5]

In consideration of the credit accommodations, spouses Hanopol executed

a Deed of Real Estate Mortgage in favor of Shoemart on their properties
covered by TCT Nos. (S-60763) 15079-A and (S-60762) 15078-A, situated in
Barrio San Dionisio, Municipality of Paraaque, Province of Rizal.[6]

For failure of spouses Hanopol to pay the principal amount of One

Hundred Twenty-Four Thousand Five Hundred Seventy-One Pesos and
Eighty-Nine Centavos (P124,571.89) as of October 6, 1987, Shoemart
instituted extrajudicial foreclosure proceedings against the mortgaged
properties.
On March 29, 1989, to enjoin Shoemart and the Sheriff from proceeding
with the scheduled foreclosure sale on April 6, 1989, spouses Hanopol
instituted Civil Case No. 89-48355 for breach of contract, refund,
release/cancellation of real estate mortgage, damages with injunction before
the Regional Trial Court of Manila. Spouses Hanopol alleged that Shoemart
[7]

breached the contract when the latter failed to furnish the former with the
requisite documents by which the formers liability shall be determined,
namely: charge invoices, purchase booklets and purchase journal, as
provided in their contract; that without the requisite documents, spouses
Hanopol had no way of knowing that, in fact, they had already paid, even
overpaid, whatever they owed to Shoemart; that despite said breach,
Shoemart even had the audacity to apply for extrajudicial foreclosure with the
Sheriff.
On April 4, 1989, at the preliminary hearing for the petition for the issuance
of a writ of preliminary injunction or restraining order, spouses Hanopol and
Shoemart agreed to suspend the scheduled auction sale. [8]

On April 11, 1989, Shoemart filed its Answer with Counterclaim denying [9]

the material allegations of the complaint.

The trial court subsequently formed a Commission, composed of three (3)
members, one representative from each party and Atty. Raymundo G.
Vallega, the Branch Clerk of Court of Branch 25, RTC Manila, as Chairman of
the Commission, for the accounting of each partys records of account with the
corresponding receipts, charge invoices and other evidence of indebtedness
or payment. [10]

The Report of the Chairman of the Commission dated January 7, 1991,

reads in part: [11]

That plaintiffs, thru their commissioner, submitted to the commission a total of 153
receipts and drawn checks. Twelve (12) of the drawn checks were reconciled by the
commission, thru defendants commissioner and both parties agreed. This leaves 141
official receipts with a total of P1,895,699.20 tending to prove that plaintiffs Hanopol
had paid to Shoemart. This amount of P1,895,699.20 includes check AF/DA No.
91434, dated 9-11-87 in the amount of P50,000.00 which seems to cover O.R. No.
167729 which plaintiffs denied. Both parties failed to reconcile this check with O.R.
No. 167729. In the event that check AF/DA No. 91434, dated 9-11-87 is covered by
O.R. No. 167729, then plaintiffs total payment to Shoemart is only
P1,845,699.20. This is evidently shown in the Summary of Payments (Annexes A to
A-6) and the corresponding copies of the official receipts (Annexes B to B-46 which
is also marked as Annexes C to C-46 of the memorandum/manifestation filed by the
plaintiffs, dated November 12, 1990).

Defendant, despite repeated plea of the undersigned Chairman, did not present or
submit any proof of indebtedness or charge invoices for accounting purposes to
support its position/claim, claiming that plaintiffs are now barred by estoppel and
laches from demanding the charge invoices covering all their transactions with
Shoemart, Inc. way back December 4, 1985 in pursuance of paragraph 6 of the
contract on purchase on credit. Defendants commissioner with the assistance of
counsel merely submitted a statement of account (ledger consisting of 17 pages herein
marked as Annexes C to C-16).

In effect, defendant Shoemart reiterated its position/claim in its answer with

counterclaim that plaintiffs have still an outstanding obligation/indebtedness (to it) in
the amount of P178,095.47 as of December 31, 1988 inclusive of penalty charges
being collected from them (No. 10 of special and affirmative defenses, page 7 of
answer with counterclaim).

Thereafter trial on the merits ensued with plaintiffs presenting the lone
testimony of Manuel Hanopol; and defendant Shoemart presenting four (4)
[12]

employees of Shoemart, namely, Antoinette P. Garcia, Credit

Manager; Consuelo Cadelina, Accountant Manager; Atty. Epitacio B.
[13] [14]

Borcedes, Jr., Corporate Secretary; and Mercedes M. Alonzo, Credit

[15]

Officer.[16]

On March 21, 1994, the Regional Trial Court of Manila (Branch 25)
rendered a Decision in favor of spouses Hanopol, ordering Shoemart, as
[17]
represented to by its Executive Vice-President, Senen T. Mendiola, to effect
the cancellation of the real estate mortgage executed by spouses Hanopol in
favor of Shoemart and refund the amount of Three Hundred Twenty-One
Thousand Eight Hundred One Pesos and Two Centavos (P321,801.02) which
represents overpayment, with interest at the legal rate from the time when the
complaint was instituted on March 29, 1989 until full payment thereof. In
addition, Shoemart was ordered to pay moral and exemplary damages in the
amount of Thirty Thousand Pesos (P30,000.00), attorneys fees in the amount
of Twenty Thousand Pesos (P20,000.00), and the actual costs and expenses
of the suit.
Shoemart appealed the decision to the Court of Appeals which is docketed
as CA-G.R. CV No. 45500. In a Decision dated November 27, 1996, the
[18]

appellate court reversed and set aside the lower courts decision and, in its
stead, the real estate mortgage was reinstated and spouses Hanopol were
ordered to pay Ten Thousand Pesos (P10,000.00) as attorneys fees.
Spouses Hanopol sought reconsideration of the decision. Pending its
resolution, Shoemart, on January 31, 1997, filed a petition for extrajudicial
foreclosure of mortgage over the same properties with the office of Ex-Officio
Sheriff of Paraaque. A foreclosure sale was set on March 4, 1997 at 10:00
a.m.
To enjoin the scheduled foreclosure, spouses Hanopol filed a petition for
injunction with temporary restraining order and damages, docketed as Civil
Case No. 97-059 in the Regional Trial Court of Paraaque (Branch
260). Shoemart sought the dismissal of the same on grounds of litis
[19]

pendentia and forum shopping. The RTC of Paraaque issued a temporary

[20]

restraining order enjoining the scheduled foreclosure sale. Subsequently,

[21]

however, in an Order dated September 29, 1997, the RTC of Paraaque

[22]

granted Shoemarts motion to dismiss.Spouses Hanopol appealed to the Court

the Appeals which is docketed as CA-G.R. CV 56691.
On May 21, 1998, the Court of Appeals rendered an Amended
Decision in CA-G.R. CV No. 45500. It reconsidered its Decision dated
[23]

November 27, 1996 and affirmed with modification the judgment of the trial
court, setting the amount to be refunded or returned to spouses Hanopol at
Seventy Thousand Seven Hundred Forty-Three Pesos (P70,743.00). On June
15, 1998, Shoemart filed a motion for reconsideration of the said Amended
Decision.
On January 4, 1999, the Court of Appeals reconsidered its Amended
Decision of May 21, 1998 and reinstated its Decision of November 27,
1996. Spouses Hanopol sought reconsideration of said Resolution but the
[24]

appellate court denied the same in its Resolution dated March 9,

1999. Hence, the petition for review on certiorari subject of G.R. No. 137774.
On December 29, 2000, the Court of Appeals rendered a Decision in CA-
G.R. SP No. 56691, sustaining the Order of the RTC of Paraaque which
dismissed Civil Case No. 97-059 on the grounds of litis pendentia and forum-
shopping. Spouses Hanopol sought reconsideration but the appellate court
[25] [26]

in its Resolution dated May 23, 2001 denied the same. Hence, the petition
[27]

subject of G.R. No. 148185.

Upon motion of spouses Hanopol, G.R. Nos. 137774 and 148185 were
[28]

consolidated. [29]

In G.R. No. 137774, petitioners spouses Hanopol question the factual

findings and conclusions of law of the Court of Appeals contending that: the
appellate court made a serious misapprehension of facts; such findings are
even conflicting and contrary to the findings of the trial court; the findings of
credibility of a witness by the trial court cannot be overturned by the appellate
court; the appellate court gravely erred when it did not consider the doctrine of
estoppel against Shoemart on the report of the commission on accounting,
referred to by adversarial counsel as the best evidence; and the appellate
court misappreciated the evidentiary weight of the unsupported open-ended,
forged so-called ledger which cannot overcome the validity and admissibility
of primary evidence composed of detailed statement of account and the
official receipts of payment both issued by Shoemart and Sps. Hanopol.
In petitions for review, the jurisdiction of this Court in cases brought before
it from the Court of Appeals is limited to reviewing questions of law which
involves no examination of the probative value of the evidence presented by
the litigants or any of them. The Supreme Court is not a trier of facts; it is not
[30]

our function to analyze or weigh evidence all over again.Accordingly, findings

of fact of the appellate court are generally conclusive on the Supreme Court.
However, this rule is not without exceptions, to wit: (1) when the
conclusion is a finding 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 misapprehension of facts; (5) when the finding of fact
are conflicting; (6) when the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of
both appellant and appellee; (7) when the findings of the Court of Appeals are
contrary to those of the trial court; (8) when the findings of fact are
conclusions without citation of specific evidence on which they are based; (9)
when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion; and (10) when the findings of facts of the Court of Appeals are
premised on the absence of evidence and are contradicted by the evidence
on record.[31]

Petitioners submit that their case fall within the exceptions. A thorough
dissection of the records, the transcripts of stenographic notes and the
evidence adduced by each party leads us to the conclusion the extant
evidence could not support a solid conclusion that there was overpayment to
Shoemart by spouses Hanopol. Thus, we find that there is no reason to
reverse the factual findings and conclusions of law of the appellate court.
In civil cases, the burden of proof to be established by preponderance of
evidence is on the plaintiff who is the party asserting the affirmative of an
issue. He has the burden of presenting evidence required to obtain a
favorable judgment, and he, having the burden of proof, will be defeated if no
evidence were given on either side. [32]

Petitioners claim overpayment to Shoemart. As such, they had the burden

of proof. The following communications between the parties reveal a different
picture of what actually transpired between them:
(a) Letter dated February 13, 1987 from Cesar S. Valdez, Credit Collection Manager,
informing Beatriz Hanopol that the ten (10) checks she issued were returned
unpaid for insufficient funds and advising her to make payments via Managers
Check to improve her payment record;[33]
(b) Letter dated March 23, 1987 from Antoinette P. Garcia informing Beatriz
Hanopol that her checks were returned twice for insufficiency of funds and that she
should make her payment via Managers Check;[34]
(c) Letter dated May 30, 1987 from Antoinette P. Garcia informing Beatriz Hanopol of
the approval of her repayment plan in connection with her past due accounts, and
likewise informing her of the terms and conditions thereof;[35]
(d) Letter dated September 4, 1987 from Antoinette P. Garcia advising Beatriz
Hanopol of her failure to comply with the terms and conditions of her repayment
plan and demanding that she update her accounts with Shoemart;[36]
(e) Letter dated December 4, 1987, confirming Manuel Hanopols commitment to
submit to Shoemart a final payment proposal for his total past due obligations as of
December 2, 1987.[37]
(f) Letter dated December 9, 1987 addressed to Cesar Valdez from Atty. Jose
Torregoza, counsel for Manuel Hanopol, advising Shoemart that they will avail of
the Banco de Oro (BDO) loan to pay their accountabilities instead of the repayment
plan earlier proposed;[38]
(g) Memorandum dated December 14, 1987 from Antoinette Garcia addressed to BDO
Manager Tessie Sy Coson seeking the approval of the BDO loan to be secured
by Beatriz Hanopol to enable her to pay her principal obligation with Shoemart;[39]
(h) Letter dated February 2, 1988 addressed to Cesar Valdez from Elisa O. Go,
Manager of Retail Banking Unit-Account Management Group, and Violeta V. Luym,
Senior Vice-President of Marketing of Banco de Oro, informing Mr. Valdez that the
executive committee of BDO has approved the proposed loan in favor of
the spouses Hanopol;[40]
(i) Letter dated February 15, 1988 addressed to Wilhelmina Guico, Account Manager of
Shoemart, from Manuel Hanopol requesting for copies of detailed products and
items purchased by their credit cardholders in preparation for the signing of their
loan with Banco de Oro;[41]
(j) Letter dated February 29, 1988 addressed to Beatriz Hanopol from Cesar Valdez
formalizing the agreement to provide the spouses Hanopol with copies of all charge
invoices covering their principal indebtedness subject to the conditions that the
invoices shall be released only after six (6) to twelve (12) months from the date of
the letter and that spouses will shoulder the cost of retrieving the said invoices,
inasmuch as the documents have long been stored in the warehouses together with
the invoices of other cardholders/principals and the sorting process would require
additional personnel;[42]
(k) Letter dated March 9, 1988 addressed to Cesar Valdez from Manuel
Hanopol stating that he is not denying his responsibility with Shoemart, and
explaining that he is requesting for copies of charge invoices of items purchased by
his cardholders for the purpose of filing a legal action against his delinquent
cardholders;[43]
(l) Letter dated March 25, 1988 addressed to Manuel Hanopol from Cesar Valdez
explaining the discrepancy in the billings to the spouses Hanopol and informing him
of the cost that will be incurred in retrieving the charge invoices which he
requested;[44]
(m) Letter dated June 10, 1988 addressed to Atty. Borcelis from Manuel
Hanopol stating that he needed the charge invoices for the purpose of filing legal
action against his delinquent cardholders;[45]
(n) Letter dated June 30, 1988 addressed to Atty. Borcelis from Alipio Abrenica,
counsel for the spouses Hanopol, stating that he needed the charge invoices
requested to enable him to know how much worth of goods his cardholders
purchased;[46]
(o) Letter dated October 19, 1988 addressed to Manuel Hanopol from Cesar Valdez
asking the former to acknowledge receipt of all the SM charge invoices which were
retrieved pursuant to his request covering the period from March 15, 1987 up to
October 6, 1987;[47]
(p) Letter dated January 21, 1989 addressed to Atty. Borcelis from Atty. Yadao,
counsel for the spouses Hanopol, informing Shoemart that they are interested in
settling the account, except that the spouses Hanopol are out of town.;[48]
(q) Letter dated February 16, 1989 addressed to Atty. Borcelis from Atty. Yadao
requesting for more records to support of the total purchases of Mr.
Hanopols cardholders, this time, from December 4, 1985, when the spouses
Hanopol became a guarantor of Shoemart, up to January 15, 1988;[49]
 (r) Letter dated March 20, 1989 addressed to Atty. Borcelis from Atty. Yadao stating
that they did not receive additional records of all purchases made by all their
cardholders and demanding that the excess payments made by Mr. Hanopol be
reimbursed, and demanding further, that all his collaterals be released.[50]

What is clear from the extant evidence is that in the year 1987 and early
part of 1988, it was petitioner Beatriz T. Hanopol who was the party dealing
with Shoemart. She was the one who applied as guarantor for credit
cardholders with Shoemart, received the documents relative to the
[51]

account and dealt with the payments of the account. Verily, petitioner
[52] [53]

Beatriz T. Hanopol was the party most knowledgeable with the credit
transactions of her cardholders and her obligations with
Shoemart. Surprisingly, she was never presented as a witness to shed light
into her transactions with Shoemart to bolster petitioners claim against the
latter.
Petitioner Manuel R. Hanopol, who was the only witness presented by
petitioners, appears to have become involved personally only after the
spouses already had problems settling their obligations. In a letter dated
December 4, 1987 addressed to Manuel R. Hanopol, Antoinette P. Garcia,
then Assistant Credit Manager of Shoemart, had confirmed the commitment of
the former to submit a final payment proposal for total past due
obligations. Prior thereto, all communications were addressed solely to
[54]

petitioner Beatriz T. Hanopol. When petitioner Manuel R. Hanopol started

communicating with Shoemart, the latter never dealt with petitioner Beatriz T.
Hanopol nor was anything heard from her again.
Furthermore, as to the allegation of the petitioners that Shoemart
breached the contract when the latter failed to furnish them with the requisite
documents by which their liability may be determined, namely: charge
invoices, purchase booklets and purchase journal, as provided in their
contract -- We have thoroughly perused the contract between the parties and
found that nowhere is it stated therein that Shoemart is obliged to provide
spouses Hanopol with charge invoices and purchase booklets. The contract
simply provides for a provision relative to the Statement of Account, which
reads:

STATEMENT OF ACCOUNT. A periodic statement of account due from the

PRINCIPAL shall be prepared by SHOEMART which indicates the total amounts due
from the PRINCIPAL.

The PRINCIPAL, or his authorized representative, shall pick up the purchase journal
of all purchases made from the 1 to the 15 day of the month on or before the 25 day
st th th

of the same month, and for purchases made from the 16 to the last day of the month
th

on or before the 10 day of the succeeding month from the office of SHOEMART at
th

400 C. Palanca Sr. Street, San Miguel, Manila, or at such other place that may later be
designated by SHOEMART.

Unless written exception is made by the PRINCIPAL on the correctness of the

Statement of Account within three (3) days from receipt thereof, the correctness of the
Statement of Account shall be considered conclusive against the principal. [55]

It is clear from the foregoing provision that spouses Hanopol had three (3)
days to question the correctness of the Statement of Account and their failure
to do so would render the Statement conclusive.
Likewise, a Memorandum dated October 30, 1984 advised all principals,
such as petitioners, that if their cardholders should have any question about a
particular charge invoice, the principal should advise Shoemart within three
(3) months after the date of their transaction, otherwise, their queries may not
be satisfied because all invoices will be stored only for three (3) months after
which they shall be disposed of permanently.
Petitioners failed to explain their failure to question or take action
regarding any discrepancies in the Statement of Account they received, doing
so only when they had difficulty settling their account with Shoemart. They
never raised their claim of overpayment throughout the entire duration of the
contract.
In fact, in a letter dated March 9, 1988, petitioner Manuel R. Hanopol
declared that they are not denying their liability as guarantor but merely
requesting charge invoices for legal action they will take against delinquent
cardholders. In subsequent letters, petitioners spouses Hanopol reiterated
[56]

the purpose of their request for the charge invoices and that they intend to
[57]

settle their account with Shoemart. Only when informed in the letter dated
[58]

March 20, 1989 of the impossibility of retrieving the charge invoices from
[59]

December 4, 1985 up to January 15, 1988 (which petitioners had requested in

a letter dated February 16, 1989 ) did petitioners first bring up the issue of
[60]

overpayment. From the foregoing sequence of events, it can be fairly inferred

that it was only then that petitioner Manuel R. Hanopol was emboldened to
claim overpayment since Shoemart had no documents to refute the formers
claim.[61]

By their silence and inaction, petitioners are deemed to have admitted the
correctness of the Statement of Account of Shoemart. They are estopped
from questioning the veracity of the same and claim overpayment. Shoemart
has in its favor the presumption that acquiescence resulted from a belief that
the thing acquiesced in was conformable to the law or fact. [62]

Petitioners should not, after the opportunity to enjoy the benefits of the
contract with Shoemart, be allowed to later disown the arrangement with
belated allegations of overpayment when the terms thereof ultimately would
prove to operate against their hopeful expectations.
The principle of estoppel in pais applies wherein when one, by his acts,
representations or admissions, or by his own silence when he ought to speak
out, intentionally or through culpable negligence, induces another to believe
certain facts to exist and such other rightfully relies and acts on such belief, so
that he will be prejudiced if the former is permitted to deny the existence of
such facts. [63]

Contrary to the claim of petitioners, the doctrine of estoppel cannot be

applied to Shoemart with respect to the Report of the Chairman of the
Commission on the accounting aspect which its own counsel considered as
the best evidence. Such statement was taken out of context. The respondents
counsel merely submitted that the Report of the Commission should be read
as it is. Indeed, such declaration must be interpreted together with the
contents of the Report itself. The Report simply states the details of the
hearing conducted by the Commission and its failure to reach a conclusion on
the accounting aspect of the case. [64]

All the foregoing considered, we need not delve further on the proposition
of petitioners that the unsupported open-ended, forged so-called ledger
cannot overcome the validity and admissibility of their primary evidence
composed of detailed statement of account and the official receipts of
payment both issued by them and Shoemart.
 As the burden of proof fell upon them, petitioners must rely upon the
strength of their own evidence and not upon the weakness of Shoemarts
defense.
Ultimately, spouses Hanopol failed to rebut two (2) presumptions
Shoemart had in its favor, to wit: (a) that private transactions have been fair
and regular, and, (b) that the ordinary course of business had been
followed. We opine and so hold that the claim of overpayment was voiced
[65]

out more as an afterthought, with no purpose other than to thwart Shoemarts

claim against them for payment of their outstanding account and to forestall
the extrajudicial foreclosure of the real estate mortgage.
We come now to the matters raised in G.R. No. 148185. Petitioners take
exception from the decision of the Court of Appeals sustaining the Order
dated September 29, 1997 of the RTC of Paraaque to dismiss the complaint
for injunction with damages on the grounds of litis pendentia and forum-
shopping, ascribing to the appellate court bias and prejudiced attitude and
grave abuse of discretion amounting to lack or excess of jurisdiction. They
contend that Shoemart acted with manifest bad faith in pursuing with the
foreclosure and auction sale of the property of spouses Hanopol, and,
accordingly, should be held liable for damages.
We are not convinced. We find no reversible error in the decision of the
Court of Appeals in CA-G.R. CV 56691 sustaining the Order dated September
29, 1997 of the Regional Trial Court of Paraaque which dismissed Civil Case
No. 97-059 on the ground of litis pendentia and forum shopping.
All the three (3) elements for litis pendentia as a ground for dismissal of an
action are present, namely: (a) identity of parties, or at least such parties who
represent the same interest in both actions; (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts; and (c) the
identity, with respect to the two (2) preceding particulars in the two (2) cases,
in such that any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the
other. [66]

In the case at bench, the parties are the same; the relief sought in the
case before the Court of Appeals and the trial court are the same, that is, to
permanently enjoin the foreclosure of the real estate mortgage executed by
spouses Hanopol in favor of Shoemart; and, both are premised on the same
facts. The judgment of the Court of Appeals would constitute a bar to the suit
before the trial court.
It has been held that where a litigant sues the same party against whom
the same action, or actions, for the alleged violation of the same right, and the
enforcement of the same relief is/are still pending, the defense of litis
pendentia in one case is a bar to the other, and a final judgment in one would
constitute res judicata and thus, would cause the dismissal of the
rest. Spouses Hanopol may not simply ignore a prior action and bring a
[67]

second, independent action on the same set of facts while the original action
is pending.
Inasmuch as the elements of litis pendentia are present, forum shopping
exists. Forum shopping is the institution of two (2) or more actions or
proceedings on the same cause on the supposition that either one or the other
court would make a favorable disposition. A party is not permitted to pursue
[68]

simultaneous remedies in two (2) different courts. This is a practice which

ridicules the judicial process, plays havoc with the rules on orderly procedure,
and is vexatious and unfair to the other parties to the case.[69]
 Considering that spouses Hanopol had a pending motion for
reconsideration before the Court of Appeals in CA-G.R. CV No. 45500 relating
to the foreclosure proceedings of the real estate mortgage executed by the
spouses Hanopol in favor of Shoemart, said spouses Hanopol should have
raised the issue of Shoemarts alleged manifest bad faith in pursuing with the
foreclosure sale and directed their motion for an injunctive order in the
appellate court which still had jurisdiction over the case and the subject matter
thereof.
Lastly, the allegation of bias and prejudiced attitude on the part of the
appellate court is bereft of proof. Partiality and bad faith cannot be presumed
but must be proved by clear and convincing evidence. Thus, the appellate
[70]

court is presumed to have acted regularly and with impartiality.

In sum, we find that the Court of Appeals committed no reversible error in
issuing the Decisions in CA-G.R. CV Nos. 45500 and 56691.
WHEREFORE, the consolidated petitions are hereby DENIED. The
assailed Decisions of the Court of Appeals in CA-G.R. CV Nos. 45500 and
56691 are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Acting Chief Justice, (Chairman), Quisumbing, and Callejo, Sr.,
JJ., concur.
Mendoza, J., on official leave.
THIRD DIVISION

[G.R. No. 135216. August 19, 1999]

TOMASA VDA. DE JACOB, as Special Administratrix of the Intestate Estate

of Deceased Alfredo E. Jacob, petitioner, vs. COURT OF APPEALS,
PEDRO PILAPIL, THE REGISTER OF DEEDS for the Province of
Camarines Sur, and JUAN F. TRIVINO as publisher of
Balalong, respondents.

DECISION
PANGANIBAN, J.:

The contents of a document may be proven by competent evidence other than the document
itself, provided that the offeror establishes its due execution and its subsequent loss or
destruction.Accordingly, the fact of marriage may be shown by extrinsic evidence other than the
marriage contract.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the
Decision of the Court of Appeals[1] (CA) dated January 15, 1998, and its Resolution dated August
24, 1998, denying petitioners Motion for Reconsideration.
The dispositive part of the CA Decision reads:

WHEREFORE, finding no reversible error in the decision appealed from it being

more consistent with the facts and the applicable law, the challenged Decision dated
05 April 1994 of the RTC, Br. 30, Tigaon, Camarines Sur is AFFIRMED in toto.[2]
 The decretal portion of the trial court Decision[3] is as follows:

WHEREFORE, premises considered, decision is hereby rendered in favor of [herein

Respondent] Pedro Pilapil, and against [herein Petitioner] Tomasa Guison as follows:

a) Declaring Exh. B, the so called reconstructed marriage contract excluded under the best
evidence rule, and therefore declaring said Exh. B spurious and non-existent.
b) Declaring Exh. 3 Order dated July 18, 1961, and the signature of the issuing Judge JOSE L.
MOYA (Exh. 34) to be genuine.
c) Permanently setting aside and lifting the provisional writ of injunction earlier issued; and
d) To pay attorneys fees of P50,000.
And costs against [herein petitioner.]

The Facts

The Court of Appeals narrates the facts thus:

Plaintiff-appellant [petitioner herein] claimed to be the surviving spouse of deceased

Dr. Alfredo E. Jacob and was appointed Special Administratix for the various estates
of the deceased by virtue of a reconstructed Marriage Contract between herself and
the deceased.

Defendant-appellee on the other hand, claimed to be the legally-adopted son of

Alfredo. In support of his claim, he presented an Order dated 18 July 1961 issued by
then Presiding Judge Jose L. Moya, CFI, Camarines Sur, granting the petition for
adoption filed by deceased Alfredo in favor of Pedro Pilapil.

During the proceeding for the settlement of the estate of the deceased Alfredo in Case
No. T-46 (entitled Tomasa vda. de Jacob v. Jose Centenera, et al) herein defendant-
appellee Pedro sought to intervene therein claiming his share of the deceaseds estate
as Alfredos adopted son and as his sole surviving heir. Pedro questioned the validity
of the marriage between appellant Tomasa and his adoptive father Alfredo.

Appellant Tomasa opposed the Motion for Intervention and filed a complaint for
injunction with damages (Civil Case No. T-83) questioning appellees claim as the
legal heir of Alfredo.

The following issues were raised in the court a quo:

a) Whether the marriage between the plaintiff-appellant and deceased Alfredo Jacob
was valid;

b) Whether the defendant-appellee is the legally adopted son of deceased Jacob.

On the first issue, appellant claims that the marriage between her and Alfredo was
solemnized by one Msgr. Florencio C. Yllana, CBCP, Intramuros, Manila sometime
in 1975. She could not however present the original copy of the Marriage Contract
stating that the original document was lost when Msgr. Yllana allegedly gave it to Mr.
Jose Centenera for registration. In lieu of the original, Tomasa presented as secondary
evidence a reconstructed Marriage Contract issued in 1978.

During the trial, the court a quo observed the following irregularities in the execution
of the reconstructed Marriage Contract, to wit:
 1. No copy of the Marriage Contract was sent to the local civil registrar by the solemnizing
officer thus giving the implication that there was no copy of the marriage contract sent to,
nor a record existing in the civil registry of Manila;
2. In signing the Marriage Contract, the late Alfredo Jacob merely placed his thumbmark on
said contract purportedly on 16 September 1975 (date of the marriage). However, on a
Sworn Affidavit executed between appellant Tomasa and Alfredo a day before the alleged
date of marriage or on 15 September 1975 attesting that both of them lived together as
husband and wife for five (5) years, Alfredo [af]fixed his customary signature. Thus the trial
court concluded that the thumbmark was logically not genuine. In other words, not of
Alfredo Jacobs;
3. Contrary to appellants claim, in his Affidavit stating the circumstances of the loss of the
Marriage Contract, the affiant Msgr. Yllana never mentioned that he allegedly gave the
copies of the Marriage Contract to Mr. Jose Centenera for registration. And as admitted by
appellant at the trial, Jose Centenera (who allegedly acted as padrino) was not present at the
date of the marriage since he was then in Australia. In fact, on the face of the reconstructed
Marriage Contract, it was one Benjamin Molina who signed on top of the typewritten name
of Jose Centenera. This belies the claim that Msgr. Yllana allegedly gave the copies of the
Marriage Contract to Mr. Jose Centenera;
4. Appellant admitted that there was no record of the purported marriage entered in the book of
records in San Agustin Church where the marriage was allegedly solemnized.

Anent the second issue, appellee presented the Order dated 18 July 1961 in Special
Proceedings No. 192 issued by then Presiding Judge Moya granting the petition for
adoption filed by deceased Alfredo which declared therein Pedro Pilapil as the legally
adopted son of Alfredo.

Appellant Tomasa however questioned the authenticity of the signature of Judge

Moya.

In an effort to disprove the genuineness and authenticity of Judge Moyas signature in

the Order granting the petition for adoption, the deposition of Judge Moya was taken
at his residence on 01 October 1990.

In his deposition, Judge Moya attested that he could no longer remember the facts in
judicial proceedings taken about twenty-nine (29) years ago when he was then
presiding judge since he was already 79 years old and was suffering from glaucoma.

The trial court then consulted two (2) handwriting experts to test the authenticity and
genuineness of Judge Moyas signature.

A handwriting examination was conducted by Binevenido C. Albacea, NBI Document

Examiner. Examiner Albacea used thirteen (13) specimen signatures of Judge Moya
and compared it with the questioned signature. He pointed out irregularities and
significant fundamental differences in handwriting characteristics/habits existing
between the questioned and the standard signature and concluded that the questioned
and the standard signatures JOSE L. MOYA were NOT written by one and the same
person.

On the other hand, to prove the genuineness of Judge Moyas signature, appellee
presented the comparative findings of the handwriting examination made by a former
NBI Chief Document Examiner Atty. Desiderio A. Pagui who examined thirty-two
(32) specimen signatures of Judge Moya inclusive of the thirteen (13) signatures
examined by Examiner Albacea. In his report, Atty. Pagui noted the existence of
significant similarities of unconscious habitual pattern within allowable variation of
writing characteristics between the standard and the questioned signatures and
concluded that the signature of Judge Moya appearing in the Order dated 18 July 1961
granting the petition for adoption was indeed genuine.
Confronted with two (2) conflicting reports, the trial court sustained the findings of
Atty. Pagui declaring the signature of Judge Moya in the challenged Order as genuine
and authentic.

Based on the evidence presented, the trial court ruled for defendant-appellee
sustaining his claim as the legally adopted child and sole heir of deceased Alfredo and
declaring the reconstructed Marriage Contract as spurious and non-existent.[4] (citations
omitted, emphasis in the original)

Ruling of the Court of Appeals

In affirming the Decision of the trial court, the Court of Appeals ruled in this wise:

Dealing with the issue of validity of the reconstructed Marriage Contract, Article 6,
par. 1 of the Family Code provides that the declaration of the contracting parties that
they take each other as husband and wife shall be set forth in an instrument signed by
the parties as well as by their witnesses and the person solemnizing the marriage.
Accordingly, the primary evidence of a marriage must be an authentic copyof the
marriage contract.

And if the authentic copy could not be produced, Section 3 in relation to Section 5,
Rule 130 of the Revised Rules of Court provides:

Sec. 3. Original document must be produced; exceptions. - When the subject of

inquiry is the contents of a document, no evidence shall be admissible other than the
original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court
without bad faith on the part of the offeror;

xxxxxxxxx

Sec. 5. When the original document is unavailable. - When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy. Or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.

As required by the Rules, before the terms of a transaction in reality may be

established by secondary evidence, it is necessary that the due execution of the
document and subsequent loss of the original instrument evidencing the transaction be
proved. For it is the due execution of the document and subsequent loss that would
constitute the foundation for the introduction of secondary evidence to prove the
contents of such document.

In the case at bench, proof of due execution besides the loss of the three (3) copies of
the marriage contract has not been shown for the introduction of secondary evidence
of the contents of the reconstructedcontract. Also, appellant failed to sufficiently
establish the circumstances of the loss of the original document.

With regard to the trial courts finding that the signature of then Judge Moya in the
questioned Order granting the petition for adoption in favor of Pedro Pilapil was
genuine, suffice it to state that, in the absence of clear and convincing proof to the
contrary, the presumption applies that Judge Moya in issuing the order acted in the
performance of his regular duties.
Furthermore, since the signature appearing in the challenged Order was subjected to a
rigid examination of two (2) handwriting experts, this negates the possibility of
forgery of Judge Moyas signature. The value of the opinion of a handwriting expert
depends not upon his mere statement of whether a writing is genuine or false, but
upon the assistance he may afford in pointing out distinguishing marks,
characteristics, and discrepancies in and between genuine and false specimens of
writing of which would ordinarily escape notice or dete[c]tion from an unpracticed
observer. And in the final analysis, the assessment of the credibility of such expert
witnesses rests largely in the discretion of the trial court, and the test of qualification
is necessarily a relative one, depending upon the subject under investigation and the
fitness of the particular witness. Except in extraordinary cases, an appellate court will
not reverse on account of a mistake of judgment on the part of the trial court in
determining qualifications of this case.

Jurisprudence is settled that the trial courts findings of fact when ably supported by
substantial evidence on record are accorded with great weight and respect by the
Court. Thus, upon review, We find that no material facts were overlooked or ignored
by the court below which if considered might vary the outcome of this case nor there
exist cogent reasons that would warrant reversal of the findings below. Factual
findings of the trial court are entitled to great weight and respect on appeal especially
when established by unrebutted testimony and documentary evidence.[5] (citations omitted,
emphasis in the original)

Disagreeing with the above, petitioner lodged her Petition for Review before this Court.[6]

The Issues

In her Memorandum, petitioner presents the following issues for the resolution of this Court:

a) Whether or not the marriage between the plaintiff Tomasa Vda. De Jacob and
deceased Alfredo E. Jacob was valid; and

b) Whether defendant Pedro Pilapil is the legally adopted son of Alfredo E. Jacob.[7]

The Courts Ruling

The Petition is meritorious. Petitioners marriage is valid, but respondents adoption has not
been sufficiently established.

First Issue:

Validity of Marriage

Doctrinally, a void marriage may be subjected to collateral attack, while a voidable one may
be assailed only in a direct proceeding.[8] Aware of this fundamental distinction, Respondent
Pilapil contends that the marriage between Dr. Alfredo Jacob and petitioner was void ab initio,
because there was neither a marriage license nor a marriage ceremony.[9] We cannot sustain this
contention.
To start with, Respondent Pedro Pilapil argues that the marriage was void because the
parties had no marriage license. This argument is misplaced, because it has been established that
Dr. Jacob and petitioner lived together as husband and wife for at least five years.[10] An affidavit
to this effect was executed by Dr. Jacob and petitioner.[11] Clearly then, the marriage was
exceptional in character and did not require a marriage license under Article 76 of the Civil
Code.[12] The Civil Code governs this case, because the questioned marriage and the assailed
adoption took place prior the effectivity of the Family Code.

When Is Secondary Evidence Allowed?

It is settled that if the original writing has been lost or destroyed or cannot be produced in
court, upon proof of its execution and loss or destruction, or unavailability, its contents may be
proved by a copy or a recital of its contents in some authentic document, or by recollection of
witnesses.[13] Upon a showing that the document was duly executed and subsequently lost,
without any bad faith on the part of the offeror, secondary evidence may be adduced to prove its
contents.[14]
The trial court and the Court of Appeals committed reversible error when they (1) excluded
the testimonies of petitioner, Adela Pilapil and Msgr. Florencio Yllana and (2) disregarded the
following: (a) photographs of the wedding ceremony; (b) documentary evidence, such as the
letter of Monsignor Yllana stating that he had solemnized the marriage between Dr. Jacob and
petitioner, informed the Archbishop of Manila that the wedding had not been recorded in the
Book of Marriages, and at the same time requested the list of parties to the marriage; (c) the
subsequent authorization issued by the Archbishop -- through his vicar general and chancellor,
Msgr. Benjamin L. Marino -- ordaining that the union between Dr. Jacob and petitioner be
reflected through a corresponding entry in the Book of Marriages; and (d) the Affidavit of
Monsignor Yllana stating the circumstances of the loss of the marriage certificate.
It should be stressed that the due execution and the loss of the marriage contract, both
constituting the conditio sine qua non for the introduction of secondary evidence of its contents,
were shown by the very evidence they have disregarded. They have thus confused the evidence
to show due execution and loss as "secondary" evidence of the marriage. In Hernaez v.
Mcgrath,[15] the Court clarified this misconception thus:

x x x [T]he court below was entirely mistaken in holding that parol evidence of the
execution of the instrument was barred. The court confounded the execution and the
contents of the document. It is the contents, x x x which may not be prove[n] by
secondary evidence when the instrument itself is accessible. Proofs of the execution
are not dependent on the existence or non-existence of the document, and, as a matter
of fact, such proofs precede proofs of the contents: due execution, besides the loss,
has to be shown as foundation for the introduction of secondary evidence of the
contents.

xxxxxxxxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral
or primary. It generally consists of parol testimony or extrinsic papers. Even when the
document is actually produced, its authenticity is not necessarily, if at all, determined
from its face or recital of its contents but by parol evidence. At the most, failure to
produce the document, when available, to establish its execution may affect the
weight of the evidence presented but not the admissibility of such evidence. (emphasis
ours)

The Court of Appeals, as well as the trial court, tried to justify its stand on this issue by
relying on Lim Tanhu v. Ramolete.[16] But even there, we said that marriage may be prove[n] by
other competent evidence.[17]
Truly, the execution of a document may be proven by the parties themselves, by the
swearing officer, by witnesses who saw and recognized the signatures of the parties; or even by
those to whom the parties have previously narrated the execution thereof.[18] The Court has also
held that [t]he loss may be shown by any person who [knows] the fact of its loss, or by any one
who ha[s] made, in the judgment of the court, a sufficient examination in the place or places
where the document or papers of similar character are usually kept by the person in whose
custody the document lost was, and has been unable to find it; or who has made any other
investigation which is sufficient to satisfy the court that the instrument [has] indeed [been]
lost.[19]
In the present case, due execution was established by the testimonies of Adela Pilapil, who
was present during the marriage ceremony, and of petitioner herself as a party to the event. The
subsequent loss was shown by the testimony and the affidavit of the officiating priest, Monsignor
Yllana, as well as by petitioners own declaration in court. These are relevant, competent and
admissible evidence. Since the due execution and the loss of the marriage contract were clearly
shown by the evidence presented, secondary evidence -- testimonial and documentary -- may be
admitted to prove the fact of marriage.
The trial court pointed out that on the face of the reconstructed marriage contract were
certain irregularities suggesting that it had fraudulently been obtained.[20] Even if we were to
agree with the trial court and to disregard the reconstructed marriage contract, we must
emphasize that this certificate is not the only proof of the union between Dr. Jacob and petitioner.

Proof of Marriage

As early as Pugeda v. Trias[21], we have held that marriage may be proven by any competent
and relevant evidence. In that case, we said:

"Testimony by one of the parties to the marriage, or by one of the witnesses to the
marriage, has been held to be admissible to prove the fact of marriage. The person
who officiated at the solemnization is also competent to testify as an eyewitness to the
fact of marriage."[22] (emphasis supplied)

In Balogbog v. CA,[23] we similarly held:

[A]lthough a marriage contract is considered primary evidence of marriage, the failure

to present it is not proof that no marriage took place. Other evidence may be presented
to prove marriage. (emphasis supplied, footnote omitted)

In both cases, we allowed testimonial evidence to prove the fact of marriage. We reiterated
this principle in Trinidad v. CA,[24] in which, because of the destruction of the marriage contract,
we accepted testimonial evidence in its place.[25]
Respondent Pedro Pilapil misplaces emphasis on the absence of an entry pertaining to 1975
in the Books of Marriage of the Local Civil Registrar of Manila and in the National Census and
Statistics Office (NCSO).[26] He finds it quite bizarre for petitioner to have waited three years
before registering their marriage.[27] On both counts, he proceeds from the wrong premise. In the
first place, failure to send a copy of a marriage certificate for record purposes does not invalidate
the marriage.[28] In the second place, it was not the petitioners duty to send a copy of the marriage
certificate to the civil registrar.Instead, this charge fell upon the solemnizing officer.[29]

Presumption in Favor of Marriage

Likewise, we have held:

The basis of human society throughout the civilized world is xxx of

marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new
relation, an institution in the maintenance of which the public is deeply
interested. Consequently, every intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent matrimony are presumed, in the
absence of any counterpresumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of society, and if the parties
were not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law. A presumption established by our Code of
Civil Procedure is that a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage. Semper praesumitur pro matrimonio -
- Always presume marriage.[30] (emphasis supplied)

This jurisprudential attitude[31], 1984; Perido v. Perido, 63 SCRA 97, March 12, 1975.31
towards marriage is based on the prima facie presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of marriage.[32] Given the
undisputed, even accepted,[33] fact that Dr. Jacob and petitioner lived together as husband and
wife,[34] we find that the presumption of marriage was not rebutted in this case.

Second Issue:

Validity of Adoption Order

In ruling that Respondent Pedro Pilapil was adopted by Dr. Jacob and that the signature of
Judge Moya appearing on the Adoption Order was valid, the Court of Appeals relied on the
presumption that the judge had acted in the regular performance of his duties. The appellate court
also gave credence to the testimony of respondents handwriting expert, for the assessment of the
credibility of such expert witness rests largely on the discretion of the trial court x x x.[35]
We disagree. As a rule, the factual findings of the trial court are accorded great weight and
respect by appellate courts, because it had the opportunity to observe the demeanor of witnesses
and to note telltale signs indicating the truth or the falsity of a testimony. The rule, however, is
not applicable to the present case, because it was Judge Augusto O. Cledera, not
the ponente, who heard the testimonies of the two expert witnesses. Thus, the Court examined
the records and found that the Court of Appeals and the trial court failed to notice certain
relevant facts which, if properly considered, will justify a different conclusion.[36] Hence, the
present case is an exception to the general rule that only questions of law may be reviewed in
petitions under Rule 45.[37]
Central to the present question is the authenticity of Judge Moyas signature on the
questioned Order of Adoption. To enlighten the trial court on this matter, two expert witnesses
were presented, one for petitioner and one for Respondent Pilapil. The trial court relied mainly
on respondents expert and brushed aside the Deposition of Judge Moya himself.[38] Respondent
Pilapil justifies the trial judges action by arguing that the Deposition was ambiguous. He
contends that Judge Moya could not remember whether the signature on the Order was his and
cites the following portion as proof:[39]
"Q. What was you[r] response, sir?
A. I said I do not remember.
Respondent Pilapil's argument is misleading, because it took the judges testimony out of its
context. Considered with the rest of the Deposition, Judge Moyas statements contained no
ambiguity. He was clear when he answered the queries in the following manner:
Atty. Benito P. Fabie
Q. What else did she tell you[?]
A. And she ask[ed] me if I remembered having issued the order.
Q. What was your response sir[?]
A. I said I do not remember.[40]
The answer I do not remember did not suggest that Judge Moya was unsure of what he was
declaring. In fact, he was emphatic and categorical in the subsequent exchanges during the
Deposition:
Atty. Benito P. Fabie
Q. I am showing to you this Order, Exh. A deposition[;] will you please recall whether you issued this
Order and whether the facsimile of the signature appearing thereon is your signature.
A. As I said, I do not remember having issued such an order and the signature reading Jose[;] I cant
make out clearly what comes after the name[;] Jose Moya is not my signature.[41]
 Clearly, Judge Moya could not recall having ever issued the Order of Adoption. More
importantly, when shown the signature over his name, he positively declared that it was not his.
The fact that he had glaucoma when his Deposition was taken does not discredit his
statements. At the time, he could with medication still read the newspapers; upon the request of
the defense counsel, he even read a document shown to him.[42] Indeed, we find no reason and the
respondent has not presented any to disregard the Deposition of Judge Moya.
Judge Moyas declaration was supported by the expert testimony of NBI Document
Examiner Bienvenido Albacea, who declared:
Atty. Paraiso
Q And were you able to determine [w]hat purpose you had in your examination of this document?
A Yes sir, [based on] my conclusion, [I] stated that the questioned and the standard signature Jose L.
Moya were not written by one and the same person. On the basis of my findings that I would
point out in detail, the difference in the writing characteristics [was] in the structural pattern of
letters which is very apparent as shown in the photograph as the capital letter J.[43]
It is noteworthy that Mr. Albacea is a disinterested party, his services having been sought
without any compensation. Moreover, his competence was recognized even by Respondent
Pilapils expert witness, Atty. Desiderio Pagui.[44]
Other considerations also cast doubt on the claim of respondent. The alleged Order was
purportedly made in open court. In his Deposition, however, Judge Moya declared that he did not
dictate decisions in adoption cases. The only decisions he made in open court were criminal
cases, in which the accused pleaded guilty.[45] Moreover, Judge Moya insisted that the branch
where he was assigned was always indicated in his decisions and orders; yet the questioned
Order did not contain this information. Furthermore, Pilapils conduct gave no indication that he
recognized his own alleged adoption, as shown by the documents that he signed and other acts
that he performed thereafter.[46] In the same vein, no proof was presented that Dr. Jacob had
treated him as an adopted child. Likewise, both the Bureau of Records Management[47] in Manila
and the Office of the Local Civil Registrar of Tigaon, Camarines Sur,[48] issued Certifications that
there was no record that Pedro Pilapil had been adopted by Dr. Jacob. Taken together, these
circumstances inexorably negate the alleged adoption of respondent. [49]
The burden of proof in establishing adoption is upon the person claiming such
relationship.[50] This Respondent Pilapil failed to do. Moreover, the evidence presented by
petitioner shows that the alleged adoption is a sham.
WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of
Appeals is REVERSED and SET ASIDE. The marriage between Petitioner Tomasa Vda. de Jacob
and the deceased Alfredo E. Jacob is hereby recognized and declared VALID and the claimed
adoption of Respondent Pedro Pilapil is DECLARED NONEXISTENT. No pronouncement as to
costs.
SO ORDERED.
Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.