A.M. No. RTJ-92-876 September 19, 1994 STATE PROSECUTORS, complainants, vs. JUDGE MANUEL T.

MURO, Regional Trial Court, Branch 54, Manila, respondent.

PER CURIAM: In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities place a premium on how he has complied with his continuing duty to know the law. A quality thus considered essential to the judicial character is that of "a man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the learning of the law; is profoundly learned in all the learning of the law; and knows how to use that learning." 1 Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles. For, service in the judiciary means a continuous study and research on the law from beginning to end. 2 In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro of the Regional Trial Court (RTC) of Manila, Branch 54, was charged by State Prosecutors Nilo C. Mariano, George C. Dee and Paterno V. Tac-an with ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and 3.02 of the Code of Judicial Conduct, committed as follows:
1. That on August 13, 1992, respondent judge issued an Order dismissing eleven (11) cases (docketed as Crim. Cases Nos. 92-101959 to 92- 101969, inclusive) filed by the undersigned complainant prosecutors (members of the DOJ Panel of Prosecutors) against the accused Mrs. Imelda Romualdez Marcos, for Violation of Central Bank Foreign Exchange Restrictions, as consolidated in CB Circular No. 960, in relation to the penal provisions of Sec. 34 of R.A. 265, as amended, . . .; 2. That respondent Judge issued his Order solely on the basis of newspaper reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe) concerning the announcement on August 10, 1992 by the President of the Philippines of the lifting by the government of all foreign exchange restrictions and the arrival at such decision by the Monetary Board as per statement of Central Bank Governor Jose Cuisia; 3. That claiming that the reported announcement of the Executive Department on the lifting of foreign exchange restrictions by two newspapers which are reputable and of national circulation had the effect of repealing Central Bank Circular No. 960, as allegedly supported by Supreme Court decisions . . ., the Court contended that it was deprived of jurisdiction, and, therefore, motu, prop(r)io had to dismiss all the eleven cases

aforementioned "for not to do so opens this Court to charges of trying cases over which it has no more jurisdiction;" 4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central Bank Circular or Monetary Board Resolution which as of date hereof, has not even been officially issued, and basing his Order/decision on a mere newspaper account of the advance announcement made by the President of the said fact of lifting or liberalizing foreign exchange controls, respondent judge acted prematurely and in indecent haste, as he had no way of determining the full intent of the new CB Circular or Monetary Board resolution, and whether the same provided for exception, as in the case of persons who had pending criminal cases before the courts for violations of Central Bank Circulars and/or regulations previously issued on the matter; 5. That respondent Judge's arrogant and cavalier posture in taking judicial notice purportedly as a matter of public knowledge a mere newspaper account that the President had announced the lifting of foreign exchange restrictions as basis for his assailed order of dismissal is highly irregular, erroneous and misplaced. For the respondent judge to take judicial notice thereof even before it is officially released by the Central Bank and its full text published as required by law to be effective shows his precipitate action in utter disregard of the fundamental precept of due process which the People is also entitled to and exposes his gross ignorance of the law, thereby tarnishing public confidence in the integrity of the judiciary. How can the Honorable Judge take judicial notice of something which has not yet come into force and the contents, shape and tenor of which have not yet been published and ascertained to be the basis of judicial action? The Honorable Judge had miserably failed to "endeavor diligently to ascertain the facts" in the case at bar contrary to Rule 3.02 of the Code of Judicial Conduct constituting Grave Misconduct; 6. That respondent Judge did not even ha(ve) the prudence of requiring first the comment of the prosecution on the effect of aforesaid Central Bank Circular/Monetary Board resolution on the pending cases before dismissing the same, thereby denying the Government of its right to due process; 7. That the lightning speed with which respondent Judge acted to dismiss the cases may be gleaned from the fact that such precipitate action was undertaken despite already scheduled continuation of trial dates set in the order of the court (the prosecution having started presenting its evidence . . .) dated August 11, 1992 to wit: August 31, September 3, 10, 21, & 23 and October 1, 1992, all at 9:30 o'clock in the morning, in brazen disregard of all notions of fair play, thereby depriving the Government of its right to be heard, and clearly exposing his bias and partiality; and 8. That, in fact, the motive of respondent Judge in dismissing the case without even waiting for a motion to quash filed by the counsel for accused has even placed his dismissal Order suspect.

Pursuant to a resolution of this Court dated September 8, 1992, respondent judge filed his comment, 4 contending, inter alia, that there was no need to await publication of the Central Bank (CB) circular repealing the existing law on foreign exchange controls for the simple reason that the public announcement made by the President in several newspapers of general circulation lifting foreign exchange controls was total, absolute, without qualification, and was immediately effective; that having acted only on the basis of such announcement, he cannot be blamed for relying on the erroneous statement of the President that the new foreign exchange rules rendered moot and academic the

cases filed against Mrs. Marcos, and which was corrected only on August 17, 1992 but published in the newspapers on August 18, 1992, and only after respondent judge had issued his order of dismissal dated August 13, 1992; that the President was ill-advised by his advisers and, instead of rescuing the Chief Executive from embarrassment by assuming responsibility for errors in the latter's announcement, they chose to toss the blame for the consequence of their failures to respondent judge who merely acted on the basis of the announcements of the President which had become of public knowledge; that the "saving clause" under CB Circular No. 1353 specifically refers only to pending actions or investigations involving violations of CB Circular No. 1318, whereas the eleven cases dismissed involved charges for violations of CB Circular No. 960, hence the accused cannot be tried and convicted under a law different from that under which she was charged; that assuming that respondent judge erred in issuing the order of dismissal, the proper remedy should have been an appeal therefrom but definitely not an administrative complaint for his dismissal; that a mistake committed by a judge should not necessarily be imputed as ignorance of the law; and that a "court can reverse or modify a doctrine but it does not show ignorance of the justices or judges whose decisions were reversed or modified" because "even doctrines initiated by the Supreme Court are later reversed, so how much more for the lower courts?" He further argued that no hearing was necessary since the prosecution had nothing to explain because, as he theorized, "What explanation could have been given? That the President was talking 'through his hat' (to use a colloquialism) and should not be believed? That I should wait for the publication (as now alleged by complainants), of a still then non-existent CB circular? . . . As it turned out, CB Circular No. 3153 (sic) does not affect my dismissal order because the said circular's so-called saving clause does not refer to CB Circular 960 under which the charges in the dismissed cases were based;" that it was discretionary on him to take judicial notice of the facts which are of public knowledge, pursuant to Section 2 of Rule 129; that the contention of complainants that he acted prematurely and in indecent haste for basing his order of dismissal on a mere newspaper account is contrary to the wordings of the newspaper report wherein the President announced the lifting of controls as an accomplished fact, not as an intention to be effected in the future, because of the use of the present perfect tense or past tense "has lifted," not that he "intends to lift," foreign exchange controls. Finally, respondent judge asseverates that complainants who are officers of the Department of Justice, violated Section 6, Rule 140 of the Rules of Court which provides that "proceedings against judges of first instance shall be private and confidential" when they caused to be published in the newspapers the filing of the present administrative case against him; and he emphasizes the fact that he had to immediately resolve a simple and pure legal matter in consonance with the admonition of the Supreme Court for speedy disposition of cases. In their reply 5 and supplemental reply, 6 complainants aver that although the saving clause under Section 16 of CB Circular No. 1353 made specific reference to CB Circular No. 1318, it will be noted that Section 111 of Circular No. 1318, which contains a saving clause substantially similar to that of the new circular, in turn refers to and includes

Circular No. 960. Hence, whether under Circular No. 1318 or Circular No. 1353, pending cases involving violations of Circular No. 960 are excepted from the coverage thereof. Further, it is alleged that the precipitate dismissal of the eleven cases, without according the prosecution the opportunity to file a motion to quash or a comment, or even to show cause why the cases against accused Imelda R. Marcos should not be dismissed, is clearly reflective of respondent's partiality and bad faith. In effect, respondent judge acted as if he were the advocate of the accused. On December 9, 1993, this Court issued a resolution referring the complaint to the Office of the Court Administrator for evaluation, report and recommendation, pursuant to Section 7, Rule 140 of the Rules of Court, as revised, there being no factual issues involved. The corresponding report and recommendation, 7 dated February 14, 1994, was submitted by Deputy Court Administrator Juanito A. Bernad, with the approval of Court Administrator Ernani Cruz-Pao. The questioned order 8 of respondent judge reads as follows:
These eleven (11) cases are for Violation of Central Bank Foreign Exchange Restrictions as consolidated in CB Circular No. 960 in relation to the penal provision of Sec. 34 of R.A. 265, as amended. The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases; apparently the other accused in some of these cases, Roberto S. Benedicto, was not arrested and therefore the Court did not acquire jurisdiction over his person; trial was commenced as against Mrs. Marcos. His Excellency, the President of the Philippines, announced on August 10, 1992 that the government has lifted all foreign exchange restrictions and it is also reported that Central Bank Governor Jose Cuisia said that the Monetary Board arrived at such decision (issue of the Philippine Daily Inquirer, August 11, 1992 and issue of the Daily Globe of the same date). The Court has to give full confidence and credit to the reported announcement of the Executive Department, specially from the highest official of that department; the Courts are charged with judicial notice of matters which are of public knowledge, without introduction of proof, the announcement published in at least the two newspapers cited above which are reputable and of national circulation. Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520, People vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs. Crisanto Tamayo, 61 Phil. 225), among others, it was held that the repeal of a penal law without re-enactment extinguishes the right to prosecute or punish the offense committed under the old law and if the law repealing the prior penal law fails to penalize the acts which constituted the offense defined and penalized in the repealed law, the repealed law carries with it the deprivation of the courts of jurisdiction to try, convict and sentence persons charged with violations of the old law prior to its repeal. Under the aforecited decisions this doctrine applies to special laws and not only to the crimes punishable in the Revised Penal Code, such as the Import Control Law. The Central Bank Circular No. 960 under which the accused Mrs. Marcos is charged is considered as a penal law because violation thereof is penalized with specific reference to the provision of Section 34 of Republic Act 265, which penalizes violations of Central Bank Circular No. 960, produces the effect cited in the Supreme Court decisions and since according to the decisions that repeal deprives the Court of jurisdiction, this Court motu proprio dismisses

all the eleven (11) cases as a forestated in the caption, for not to do so opens this Court to charges of trying cases over which it has no more jurisdiction.

This order was subsequently assailed in a petition for certiorari filed with the Court of Appeals, entitled "People of the Philippines vs. Hon. Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda R. Marcos," docketed as CA-G.R. SP No. 29349. When required to file her comment, private respondent Marcos failed to file any. Likewise, after the appellate court gave due course to the petition, private respondent was ordered, but again failed despite notice, to file an answer to the petition and to show cause why no writ of preliminary injunction should issue. Eventually, on April 29, 1993, the Court of Appeals rendered a decision 9 setting aside the order of August 13, 1992, and reinstating Criminal Cases Nos. 92-101959 to 92-101969. In finding that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in issuing the order of dismissal, the appellate court held that:
The order was issued motu proprio, i.e., without any motion to dismiss filed by counsel for the accused, without giving an opportunity for the prosecution to be heard, and solely on the basis of newspaper reports announcing that the President has lifted all foreign exchange restrictions. The newspaper report is not the publication required by law in order that the enactment can become effective and binding. Laws take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation unless it is otherwise provided (Section 1, Executive Order No. 200). The full text of CB Circular 1353, series of 1992, entitled "Further Liberalizing Foreign Exchange Regulation" was published in the August 27, 1992 issue of the Manila Chronicle, the Philippine Star and the Manila Bulletin. Per certification of the CB Corporate Affairs Office, CB Circular No. 1353 took effect on September 2 . . . . Considering that respondent judge admittedly had not seen the official text of CB Circular No. 1353, he was in no position to rule judiciously on whether CB Circular No. 960, under which the accused Mrs. Marcos is charged, was already repealed by CB Circular No. 1353. . . . xxx xxx xxx A cursory reading of the . . . provision would have readily shown that the repeal of the regulations on non-trade foreign exchange transactions is not absolute, as there is a provision that with respect to violations of former regulations that are the subject of pending actions or investigations, they shall be governed by the regulations existing at the time the cause of action (arose). Thus his conclusion that he has lost jurisdiction over the criminal cases is precipitate and hasty. Had he awaited the filing of a motion to dismiss by the accused, and given opportunity for the prosecution to comment/oppose the same, his resolution would have been the result of deliberation, not speculation.

I. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. 10

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. 11 The provincial guide in determining what facts may be assumed to be judicially known is that of notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. 13 To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 14 This is because the court assumes that the matter is so notorious that it will not be disputed. 15 But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. 16 Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. 17 Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. 18 Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper account which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the supposed lifting of foreign exchange controls, a matter which was not and cannot be considered of common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes effective. 19 The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and unquestionable demonstration, which is one of the requirements before a court can take judicial notice of a fact. Evidently, it was impossible for respondent judge, and it was definitely not proper for him, to have taken cognizance of CB Circular No. 1353, when the same was not yet in force at the time the improvident order of dismissal was issued. II. Central Bank Circular No. 1353, which took effect on September 1, 1992, further liberalized the foreign exchange regulations on receipts and disbursements of residents arising from non-trade and trade transactions. Section 16 thereof provides for a saving clause, thus:

Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in Chapter X of CB Circular No. 1318 insofar as they are not inconsistent with, or contrary to the provisions of this Circular, shall remain in full force and effect: Provided, however, that any regulation on non-trade foreign exchange transactions which has been repealed, amended or modified by this Circular, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern.

Respondent judge contends that the saving clause refers only to the provisions of Circular No. 1318, whereas the eleven criminal cases he dismissed involve a violation of CB Circular No. 960. Hence, he insists, Circular No. 960 is deemed repealed by the new circular and since the former is not covered by the saving clause in the latter, there is no more basis for the charges involved in the criminal cases which therefore warrant a dismissal of the same. The contention is patently unmeritorious. Firstly, the second part of the saving clause in Circular No. 1353 explicitly provides that "any regulation on non-trade foreign transactions which has been repealed, amended or modified by this Circular, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern." The terms of the circular are clear and unambiguous and leave no room for interpretation. In the case at bar, the accused in the eleven cases had already been arraigned, had pleaded not guilty to the charges of violations of Circular No. 960, and said cases had already been set for trial when Circular No. 1353 took effect. Consequently, the trial court was and is supposed to proceed with the hearing of the cases in spite of the existence of Circular No. 1353. Secondly, had respondent judge only bothered to read a little more carefully the texts of the circulars involved, he would have readily perceived and known that Circular No. 1318 also contains a substantially similar saving clause as that found in Circular No. 1353, since Section 111 of the former provides:
Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and 1028, including amendments thereto, with the exception of the second paragraph of Section 68 of Circular 1028, as well as all other existing Central Bank rules and regulations or parts thereof, which are inconsistent with or contrary to the provisions of this Circular, are hereby repealed or modified accordingly: Provided, however, that regulations, violations of which are the subject of pending actions or investigations, shall be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern.

It unequivocally appears from the section above quoted that although Circular No. 1318 repealed Circular No. 960, the former specifically excepted from its purview all cases covered by the old regulations which were then pending at the time of the passage of

the new regulations. Thus, any reference made to Circular No. 1318 necessarily involves and affects Circular No. 960. III. It has been said that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. 20 This means that a judge should not only render a just, correct and impartial decision but should do so in such a manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should moreover inspire that belief. Like Caesar's wife, a judge must not only be pure but beyond suspicion. 21 Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of laws and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may have detrimental consequences beyond the immediate controversy. He should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of the law. 23 These are immutable principles that go into the very essence of the task of dispensing justice and we see no reason why they should not be duly considered in the present case. The assertion of respondent judge that there was no need to await publication of Circular No. 1353 for the reason that the public announcement made by the President in several newspapers of general circulation lifting foreign exchange controls is total, absolute, without qualification, and immediately effective, is beyond comprehension. As a judge of the Regional Trial Court of Manila, respondent is supposed to be well-versed in the elementary legal mandates on the publication of laws before they take effect. It is inconceivable that respondent should insist on an altogether different and illogical interpretation of an established and well-entrenched rule if only to suit his own personal opinion and, as it were, to defend his indefensible action. It was not for him to indulge or even to give the appearance of catering to the at-times human failing of yielding to first impressions. 24 He having done so, in the face of the foregoing premises, this Court is hard put to believe that he indeed acted in good faith. IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act of respondent judge in altogether dismissing sua sponte the eleven criminal cases without even a motion to quash having been filed by the accused, and

without at least giving the prosecution the basic opportunity to be heard on the matter by way of a written comment or on oral argument, is not only a blatant denial of elementary due process to the Government but is palpably indicative of bad faith and partiality. The avowed desire of respondent judge to speedily dispose of the cases as early as possible is no license for abuse of judicial power and discretion, 25 nor does such professed objective, even if true, justify a deprivation of the prosecution's right to be heard and a violation of its right to due process of law. 26 The lightning speed, to borrow the words of complainants, with which respondent judge resolved to dismiss the cases without the benefit of a hearing and without reasonable notice to the prosecution inevitably opened him to suspicion of having acted out of partiality for the accused. Regardless of how carefully he may have evaluated changes in the factual situation and legal standing of the cases, as a result of the newspaper report, the fact remains that he gave the prosecution no chance whatsoever to show or prove that it had strong evidence of the guilt of the accused. To repeat, he thereby effectively deprived the prosecution of its right to due process. 27 More importantly, notwithstanding the fact that respondent was not sure of the effects and implications of the President's announcement, as by his own admission he was in doubt whether or not he should dismiss the cases, 28 he nonetheless deliberately refrained from requiring the prosecution to comment thereon. In a puerile defense of his action, respondent judge can but rhetorically ask: "What explanation could have been given? That the President was talking 'through his hat' and should not be believed? That I should wait for the publication of a still then non- existent CB Circular?" The pretended cogency of this ratiocination cannot stand even the minutest legal scrutiny. In order that bias may not be imputed to a judge, he should have the patience and circumspection to give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs might not be adequate to overthrow the case for the other party. A display of petulance and impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold neutrality of an impartial judge." 29 At the very least, respondent judge acted injudiciously and with unjustified haste in the outright dismissal of the eleven cases, and thereby rendered his actuation highly dubious. V. It bears stressing that the questioned order of respondent judge could have seriously and substantially affected the rights of the prosecution had the accused invoked the defense of double jeopardy, considering that the dismissal was ordered after arraignment and without the consent of said accused. This could have spawned legal complications and inevitable delay in the criminal proceedings, were it not for the holding of the Court of Appeals that respondent judge acted with grave abuse of discretion amounting to lack of jurisdiction. This saved the day for the People since in the absence of jurisdiction, double jeopardy will not set in. To stress this point, and as a caveat to trial courts against falling into the same judicial error, we reiterate what we have heretofore declared:

It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial court's judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. . . . . Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated. The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue . . . which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision 30 rendered in disregard of that right is void for lack of jurisdiction . . . .

It is also significant that accused Marcos, despite due notice, never submitted either her comment on or an answer to the petition for certiorari as required by the Court of Appeals, nor was double jeopardy invoked in her defense. This serves to further underscore the fact that the order of dismissal was clearly unjustified and erroneous. Furthermore, considering that the accused is a prominent public figure with a record of influence and power, it is not easy to allay public skepticism and suspicions on how said dismissal order came to be, to the consequent although undeserved discredit of the entire judiciary. VI. To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in the performance of his duty that diligence, prudence and care which the law is entitled to exact in the rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by a reasonable interpretation, and even though there is a misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a very clear and indisputable manner, in the notorious violation of the legal precept. 31 In the present case, a cursory perusal of the comment filed by respondent judge reveals that no substantial argument has been advanced in plausible justification of his act. He utterly failed to show any legal, factual, or even equitable justification for the dismissal of the eleven criminal cases. The explanation given is no explanation at all. The strained and fallacious submissions therein do not speak well of respondent and cannot but further depreciate his probity as a judge. On this point, it is best that pertinent unedited excerpts from his comment 32 be quoted by way of graphic illustration and emphasis:
On the alleged ignorance of the law imputed to me, it is said that I issued the Order dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the basis of newspaper reports referred to in paragraph 2 of the letter complaint without awaiting the official publication of the Central Bank Circular. Ordinarily a Central Bank Circular/Resolution must be published in the Official Gazette or in a newspaper of general circulation, but the lifting of "all foreign exchange controls" was announced by the President of the Philippines WITHOUT QUALIFICATIONS; as published in the Daily Globe, August 11, 1992" the government has lifted ALL foreign exchange controls," and in the words of the Philippine Daily Inquirer report of the same date "The government yesterday LIFTED the LAST remaining restrictions on foreign exchange transactions, . . ." (emphasis in both quotations supplied) not only the President made the announcement

but also the Central Bank Governor Jose Cuisia joined in the announcement by saying that "the Monetary Board arrived at the decision after noting how the "partial liberalization" initiated early this year worked." Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign exchange transactions, there was no need to await the publication of the repealing circular of the Central Bank. The purpose of requiring publication of laws and administrative rules affecting the public is to inform the latter as to how they will conduct their affairs and how they will conform to the laws or the rules. In this particular case, with the total lifting of the controls, there is no need to await publication. It would have been different if the circular that in effect repealed Central Bank Circular No. 960, under which the accused was charged in the cases dismissed by me, had provided for penalties and/or modified the provisions of said Circular No. 960. The Complainants state that the lifting of controls was not yet in force when I dismissed the cases but it should be noted that in the report of the two (2) newspapers aforequoted, the President's announcement of the lifting of controls was stated in the present perfect tense (Globe) or past tense (Inquirer). In other words, it has already been lifted; the announcement did not say that the government INTENDS to lift all foreign exchange restrictions but instead says that the government "has LIFTED all foreign exchange controls," and in the other newspaper cited above, that "The government yesterday lifted the last remaining restrictions on foreign exchange transactions". The lifting of the last remaining exchange regulations effectively cancelled or repealed Circular No. 960. The President, who is the Chief Executive, publicly announced the lifting of all foreign exchange regulations. The President has within his control directly or indirectly the Central Bank of the Philippines, the Secretary of Finance being the Chairman of the Monetary Board which decides the policies of the Central Bank. No official bothered to correct or qualify the President's announcement of August 10, published the following day, nor made an announcement that the lifting of the controls do not apply to cases already pending, not until August 17 (the fourth day after my Order, and the third day after report of said order was published) and after the President said on August 17, reported in the INQUIRER's issue of August 18, 1992, that the "new foreign exchange rules have nullified government cases against Imelda R. Marcos, telling reporters that the charges against the widow of former President Marcos "have become moot and academic" because of new ruling(s) which allow free flow of currency in and out of the country" (Note, parenthetically, the reference to "new rules" not to "rules still to be drafted"). The INQUIRER report continues: "A few hours later, presidential spokeswoman Annabelle Abaya said, RAMOS (sic) had "corrected himself'." "He had been belatedly advised by the Central Bank Governor Jose Cuisia and Justice Secretary Franklin Drilon that the Monetary Board Regulation excluded from its coverage all criminal cases pending in court and such a position shall stand legal scrutiny', Mrs. Abaya, said." I will elaborate on two points: 1. If the President was wrong in making the August 10 announcement (published in August 11, 1992, newspapers) and in the August 17 announcement, SUPRA, and thus I should have relied on the Presidential announcements, and there is basis to conclude that the President was at the very least ILL-SERVED by his financial and legal advisers, because no one bothered to advise the President to correct his announcements, not until August 17, 1992, a few hours after the President had made another announcement as to the charges against Imelda Marcos having been rendered moot and academic. The President has a lot of work to do, and is not, to my knowledge, a financier, economist, banker or lawyer. It therefore behooved his subalterns to give him timely (not "belated")

advice, and brief him on matters of immediate and far-reaching concerns (such as the lifting of foreign exchange controls, designed, among others to encourage the entry of foreign investments). Instead of rescuing the Chief Executive from embarrassment by assuming responsibility for errors in the latter's announcement, these advisers have chosen to toss the blame for the consequence of their failing to me, who only acted on the basis of announcements of their Chief, which had become of public knowledge. xxx xxx xxx

The Court strongly feels that it has every right to assume and expect that respondent judge is possessed with more than ordinary credentials and qualifications to merit his appointment as a presiding judge in the Regional Trial Court of the National Capital Judicial Region, stationed in the City of Manila itself. It is, accordingly, disheartening and regrettable to note the nature of the arguments and the kind of logic that respondent judge would want to impose on this Court notwithstanding the manifest lack of cogency thereof. This calls to mind similar scenarios and how this Court reacted thereto. In one case, an RTC Judge was administratively charged for acquitting the accused of a violation of CB Circular No. 960 despite the fact that the accused was apprehended with US$355,349.00 while boarding a plane for Hongkong, erroneously ruling that the State must first prove criminal intent to violate the law and benefit from the illegal act, and further ordering the return of US$3,000.00 out of the total amount seized, on the mistaken interpretation that the CB circular exempts such amount from seizure. Respondent judge therein was ordered dismissed from the government service for gross incompetence and ignorance of the law. 33 Subsequently, the Court dismissed another RTC judge, with forfeiture of retirement benefits, for gross ignorance of the law and for knowingly rendering an unjust order or judgment when he granted bail to an accused charged with raping an 11-year old girl, despite the contrary recommendation of the investigating judge, and thereafter granted the motion to dismiss the case allegedly executed by the complainant. 34 Similarly, an RTC judge who was described by this Court as one "who is ignorant of fairly elementary and quite familiar legal principles and administrative regulations, has a marked penchant for applying unorthodox, even strange theories and concepts in the adjudication of controversies, exhibits indifference to and even disdain for due process and the rule of law, applies the law whimsically, capriciously and oppressively, and displays bias and impartiality," was dismissed from the service with forfeiture of all retirement benefits and with prejudice to reinstatement in any branch of the government or any of its agencies or instrumentalities. 35 Still in another administrative case, an RTJ judge was also dismissed by this Court for gross ignorance of the law after she ordered, in a probate proceeding, the cancellation of the certificates of title issued in the name of the complainant, without affording due process to the latter and other interested parties. 36

Only recently, an RTC judge who had been reinstated in the service was dismissed after he acquitted all the accused in four criminal cases for illegal possession of firearms, on the ground that there was no proof of malice or deliberate intent on the part of the accused to violate the law. The Court found him guilty of gross ignorance of the law, his error of judgment being almost deliberate and tantamount to knowingly rendering an incorrect and unjust judgment. 37 ACCORDINGLY, on the foregoing premises and considerations, the Court finds respondent Judge Manuel T. Muro guilty of gross ignorance of the law. He is hereby DISMISSED from the service, such dismissal to carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification from reemployment in the government service. 38 Respondent is hereby ordered to CEASE and DESIST immediately from rendering any judgment or order, or continuing any judicial action or proceeding whatsoever, effective upon receipt of this decision. SO ORDERED. Narvasa, Cruz, Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur. Bidin, is on official leave

EN BANC
[G.R. No. 130656. June 29, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO REANZARES* also known as ARMANDO RIANZARES, accusedappellant.* DECISION
BELLOSILLO, J.: This case is with us on automatic review of the 26 May 1997 Decision1[1] of the Regional Trial Court of Tanauan, Batangas, finding accused ARMANDO REANZARES also

known as "Armando Rianzares" guilty of Highway Robbery with Homicide under PD 5322[2] and sentencing him to the extreme penalty of death. He was also ordered to pay the heirs of his victim Lilia Tactacan P172,000.00 for funeral, burial and related expenses, P50,000.00 as indemnity for death, P1,000.00 for the cash taken from her bag, and to reimburse Gregorio Tactacan P2,500.00 for the Seiko wristwatch taken from him. The facts, except as to the identity of accused Armando Reanzares, are undisputed. Spouses Gregorio Tactacan and Lilia Tactacan owned a sari-sari store in San Miguel, Sto. Tomas, Batangas. On 10 May 1994 at around 8:10 in the evening, the Tactacan spouses closed their store and left for home in Barangay San Roque, Sto. Tomas, Batangas on board their passenger-type jeepney. As Gregorio was maneuvering his jeep backwards from where it was parked two (2) unidentified men suddenly climbed on board. His wife Lilia immediately asked them where they were going and they answered that they were bound for the town proper. When Lilia informed them that they were not going to pass through the town proper, the two (2) said they would just get off at the nearest intersection. After negotiating some 500 meters, one of the hitchhikers pointed a .38 caliber revolver at Gregorio while the other poked a balisong at Lilia's neck and ordered Gregorio to stop the vehicle. Two (2) other persons, one of whom was later identified as accused Armando Reanzares, were seen waiting for them at a distance. As soon as the vehicle stopped, the accused and his companion approached the vehicle. Gregorio was then pulled from the driver's seat to the back of the vehicle. They gagged and blindfolded him and tied his hands and feet. They also took his Seiko wristwatch worth P2,500.00. The accused then drove the vehicle after being told by one of them, "Sige i-drive mo na."3[3] Gregorio did not know where they were headed for as he was blindfolded. After several minutes, he felt the vehicle making a u-turn and stopped after ten (10) minutes. During the entire trip, his wife kept uttering, "Maawa kayo sa amin, marami kaming anak, kunin nyo na lahat ng gusto ninyo." Immediately after the last time she uttered these words a commotion ensued and Lilia was heard saying, "aray!" Gregorio heard her but could not do anything. After three (3) minutes the commotion ceased. Then he heard someone tell him, "Huwag kang kikilos diyan, ha," and left. Gregorio then untied his hands and feet, removed his gag and blindfold and jumped out of the vehicle. The culprits were all gone, including his wife. He ran to San Roque East shouting for help.4[4]

When Gregorio returned to the crime scene, the jeepney was still there. He went to the drivers seat. There he saw his wife lying on the floor of the jeepney with blood splattered all over her body. Her bag containing P1,200.00 was missing. He brought her immediately to the C. P. Reyes Hospital where she was pronounced dead on arrival. 5[5] At the time of her death Lilia Tactacan was forty-eight (48) years old. According to Gregorio, he was deeply depressed by her death; that he incurred funeral, burial and other related expenses, and that his wife was earning P3,430.00 a month as a teacher.6[6] Dr. Lily D. Nunes, Medical Health Officer of Sto. Tomas, Batangas, conducted a postmortem examination on the body of the victim. Her medical report disclosed that the victim sustained eight (8) stab wounds on the chest and abdominal region of the body. She testified that a sharp pointed object like a long knife could have caused those wounds which must have been inflicted by more than one (1) person, and that all those wounds except the non-penetrating one caused the immediate death of the victim.7[7] Subsequently, two (2) Informations were filed against accused Armando Reanzares and three (3) John Does in relation to the incident. The first was for violation of PD 532 otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 for allegedly conspiring, with intent to gain and armed with bladed weapons and a .38 caliber revolver, to rob and carry away one (1) Seiko wristwatch owned by Gregorio Tactacan and P1,000.00 cash of Lilia Tactacan, and on the occasion thereof, killed her. The second was for violation of RA 6539, An Act Preventing and Penalizing Carnapping, for taking away by means of violence and intimidation of persons one (1) passenger-type jeepney with Plate No. DBP 235 owned and driven by Gregorio Tactacan and valued at P110,000.00. Only the accused Armando Reanzares was arrested. The other three (3) have remained unidentified and at large. The accused testified in his defense and claimed that he could not have perpetrated the crimes imputed to him with three (3) others as he was in Barangay Tagnipa, Garchitorena, Camarines Sur, for the baptism of his daughter Jessica when the incident

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

but the delay was not an indication of a fabricated charge and should not undermine his credibility considering that he satisfactorily explained his reasons therefor. According to him, he did not immediately tell the police about the accused because he feared for the safety of his family as his neighbors told him that they saw some people lurking around his house on the day of the incident. Moreover, he was advised not to mention any names until after the burial of his wife. No ill motive could be attributed to him for implicating the accused. If at all, the fact that his wife died by reason of the incident even lends credence to his testimony since his natural interest in securing the conviction of the guilty would deter him from implicating persons other than the real culprits, otherwise, those responsible for the perpetration of the crime would escape prosecution. To further undermine the credibility of Gregorio, the accused underscores Gregorio's refusal to be subjected to a lie detector test. We cannot subscribe to this contention as the procedure of ascertaining the truth by means of a lie detector test has never been accepted in our jurisdiction; thus, any findings based thereon cannot be considered conclusive. Finally, the accused chides Gregorio for supposedly suppressing a very material piece of evidence, i.e., the latter failed to present as witnesses a certain Renato and his wife who allegedly saw the holduppers running away from the crime scene. But this is only a disputable presumption under Sec. 3, par. (e), Rule 131, of the Rules of Court on evidence, which does not apply in the present case as the evidence allegedly omitted is equally accessible and available to the defense. These attempts of the accused to discredit Gregorio obviously cannot hold ground. Neither can they bolster his alibi. For alibi to be believed it must be shown that (a) the accused was in another place at the time of the commission of the offense, and (b) it was physically impossible for him to be at the crime scene.12[12] In this case, the accused claims to have left for Bicol the day before the incident. To prove this, he presented his father and brother but their testimonies did not meet the requisite quantum to establish his alibi. While his father testified that the accused borrowed money from him for his fare to Bicol for the baptism of a daughter, he could not say whether the accused actually went to Bicol. As regards the claim of Romeo, brother of the accused, that he accompanied the accused to the bus stop on 9 May 1994 and even helped him with his things, seeing the accused off is not the same as seeing him actually get off at his destination. Given the circumstances of this case, it is possible for the accused to have alighted from the bus before reaching Bicol, perpetrated the crime in the evening of 10 May 2000, proceeded to Bicol and arrived there on 12 May 2000 for his daughters baptism.

Thus the trial court was correct in disregarding the alibi of the accused not only because he was positively identified by Gregorio Tactacan but also because it was not shown that it was physically impossible for him to be at the crime scene on the date and time of the incident. Indeed the accused is guilty. But that the accused was guilty of Highway Robbery with Homicide under PD 532 was erroneous. As held in a number of cases, conviction for highway robbery requires proof that several accused were organized for the purpose of committing it indiscriminately.13[13] There is no proof in the instant case that the accused and his cohorts organized themselves to commit highway robbery. Neither is there proof that they attempted to commit similar robberies to show the "indiscriminate" perpetration thereof. On the other hand, what the prosecution established was only a single act of robbery against the particular persons of the Tactacan spouses. Clearly, this single act of depredation is not what is contemplated under PD 532 as its objective is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another thereby disturbing the peace and tranquility of the nation and stunting the economic and social progress of the people. Consequently, the accused should be held liable for the special complex crime of robbery with homicide under Art. 294 of the Revised Penal Code as amended by RA 765914[14] as the allegations in the Information are enough to convict him therefor. In the interpretation of an information, what controls is the description of the offense charged and not merely its designation.15[15] Article 294, par. (1), of the Revised Penal Code as amended punishes the crime of robbery with homicide by reclusion perpetua to death. Applying Art. 63, second par., subpar. 2, of the Revised Penal Code which provides that "[i]n all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: x x x 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied," the lesser penalty of reclusion perpetua is imposed in the absence of any modifying circumstance.

As to the damages awarded by the trial court to the heirs of the victim, we sustain the award of P50,000.00 as civil indemnity for the wrongful death of Lilia Tactacan. In addition, the amount of P50,000.00 as moral damages is ordered. Also, damages for loss of earning capacity of Lilia Tactacan must be granted to her heirs. The testimony of Gregorio Tactacan, the victims husband, on the earning capacity of his wife, together with a copy of his wifes payroll, is enough to establish the basis for the award. The formula for determining the life expectancy of Lilia Tactacan, applying the American Expectancy Table of Mortality, is as follows: 2/3 multiplied by (80 minus the age of the deceased).16[16] Since Lilia was 48 years of age at the time of her death,17[17] then her life expectancy was 21.33 years. At the time of her death, Lilia was earning P3,430.00 a month as a teacher at the San Roque Elementary School so that her annual income was P41,160.00. From this amount, 50% should be deducted as reasonable and necessary living expenses to arrive at her net earnings. Thus, her net earning capacity was P438,971.40 computed as follows: Net earning capacity equals life expectancy times gross annual income less reasonable and necessary living expenses Net earning capacity (x) x = = = 2 (80-48) ......3 21.33 P438,971.40 x x [P41,160.00 P20,580.00 P20,580.00] = Life expectancy x Gross annual income reasonable & necessary living expenses

However, the award of P1,000.00 representing the cash taken from Lilia Tactacan must be increased to P1,200.00 as this was the amount established by the prosecution without objection from the defense. The award of P172,000.00 for funeral, burial and related expenses must be reduced to P22,000.00 as this was the only amount sufficiently substantiated.18[18] There was no other competent evidence presented to support the original award.

The amount of P2,500.00 as reimbursement for the Seiko wristwatch taken from Gregorio Tactacan must be deleted in the absence of receipts or any other competent evidence aside from the self-serving valuation made by the prosecution. An ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which is a matter of public knowledge or is capable of unquestionable demonstration. The value of jewelry therefore does not fall under either category of which the court can take judicial notice.19[19] WHEREFORE, the Decision appealed from is MODIFIED. Accused ARMANDO REANZARES also known as "Armando Rianzares" is found GUILTY beyond reasonable doubt of Robbery with Homicide under Art. 294 of the Revised Penal Code as amended and is sentenced to reclusion perpetua. He is ordered to pay the heirs of the victim P50,000.00 as indemnity for death, another P50,000.00 for moral damages, P1,200.00 for actual damages, P438,971.40 for loss of earning capacity, and P22,000.00 for funeral, burial and related expenses. Costs de oficio. SO ORDERED. Davide, Jr., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. [G.R. Nos. 135695-96. October 12, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS TUNDAG, accused-appellant. DECISION
QUISUMBING, J.:

For automatic review is the judgment of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Cases Nos.DU-6186 and DU-6203, finding appellant Tomas Tundag guilty of two counts of incestuous rape and sentencing him to death twice. On November 18, 1997, private complainant Mary Ann Tundag filed with the Mandaue City Prosecutors Office two separate complaints for incestuous rape. The first complaint, docketed as Criminal Case No. DU-6186, alleged: That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then

and there wilfully, unlawfully and feloniously have sexual intercourse with the said offended party against the latters will. CONTRARY TO LAW.i[1] The other, docketed as Criminal Case No. DU-6203, averred: That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of complainant MARY ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual intercourse with the said offended party against the latters will. CONTRARY TO LAW.ii[2] Upon arraignment appellant, assisted by counsel de parte, pleaded Not Guilty to the charges. The two cases were consolidated and a joint trial ensued. Appellants defense was bare denial. He claimed that private complainant had fabricated the rape charges against him since he and his daughter, had a quarrel when he accordingly reprimanded her for going out whenever he was not at home.iii[3] Appellant did not present any witness to reinforce his testimony. On August 31, 1998, the trial court rendered its decision, thus: WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to wit: I. In Criminal Case No. DU-6186 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime of rape, said accused is hereby sentenced to the penalty of death; b) (1) To indemnify the offended party Mary Ann Tundag the following amounts: P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral shock suffered by her and for the commission of the crime of rape with one qualifying aggravating circumstance; and c) II. To pay the costs. In Criminal Case No. DU-6203 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime of rape, said accused is hereby sentenced to the penalty of death; b) (1) To indemnify the offended party Mary Ann Tundag the following amounts: P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation to Articles 2217 and 2230 of the New Civil Code for the pain and moral shock suffered by her and for the commission of the crime of rape with one qualifying aggravating circumstance; and (3) To pay the costs.

SO ORDERED.iv[4] In its judgment, the court below gave credence to complainants version of what accused did to her. The evidence for the prosecution as adduced during the trial on the merits clearly shows that private complainant Mary Ann Tundag is a 13 year old girl who does not know how to read and write and has an IQ of 76% which is a very low general mental ability and was living with her father, the herein accused, at Galaxy Compound, Mandaue City. xxx That on September 5, 1997 at about 10:00 oclock in the evening, she was in the house together with her father. But before she went to sleep, her father was already lying down on the mat while herself (sic) just lied down at his head side which was not necessarily beside him. However, when she was already sleeping, she noticed that her father who was already undressed was beside her and was embracing her. Then, he undressed her which she resisted but her father used a knife and told her that he would kill her if she shouts and after that, he inserted his penis into her vagina and told her not to shout or tell anyone. In effect, his penis penetrated her genital, which made her vagina bleed and was very painful. That when the penis of her father was already inserted in her vagina, her father was all the time asking by saying (sic) : Does it feel good? And at the same time, he was laughing and further, told her that a woman who does not marry can never enter heaven and he got angry with her when she contradicted his statement. That while the penis of her father was inside her vagina and (he) was humping over her, she felt intense pain that she cried and told him to pull it out but did not accede and in fact, said: Why will I pull it out when it feels so good(?) That after removing his penis from her vagina and after telling her that she could not go to heaven if she did not get married, her father just stayed there and continued smoking while she cried.

That in the evening of November 7, 1997, she was at home washing the dishes while her father was just smoking and squatting. That after she finished washing the dishes, she lied (sic) down to sleep when her father embraced her and since she does not like what he did to her, she placed a stool between them but he just brushed it aside and laid down with her and was able to take her womanhood again by using a very sharp knife which he was holding and was pointing it at the right side of her neck which made her afraid. That in the early morning of the following day, she left her fathers place and went to her neighbor by the name of Bebie Cabahug and told her what had happened to her, who, in turn, advised her to report the matter to the police, which she did and accompanied by the policemen, she went to the Southern Islands Hospital where she was examined and after her medical examination, she was brought back by the police and was investigated by them.v[5] Appellants claim that the complainants charges were manufactured did not impress the trial court, which found him twice guilty of rape. Now before us, appellant assails his double conviction, simply contending that:vi[6] THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED IN THE INFORMATIONS DESPITE THE PRESENCE OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME. Appellant flatly denies that the incidents complained of ever took place. He contends that on September 5, 1997, he was working as a watch repairman near Gals Bakery in Mandaue City Market and went home tired and sleepy at around 11:00 oclock that evening. On November 7, 1997, he claims he was at work. In his brief, he argues that it was impossible for him to have raped his daughter because when the incidents allegedly transpired, he went to work and naturally, being exhausted and tired, it is impossible for him to do such wrongdoings.vii[7] The Office of the Solicitor General disagrees with appellant and urges the Court to affirm the trial courts decision, with the recommendation that the award of damages and indemnity ex delicto be modified to conform to prevailing jurisprudence. Considering the gravity of the offense charged as a heinous crime and the irreversibility of the penalty of death imposed in each of these cases before us, the Court leaves no stone unturned in its review of the records, including the evidence presented by both the prosecution and the defense. Conviction must rest on nothing less than a moral certainty of guilt.viii[8] But here we find no room to disturb the trial courts judgment concerning appellants guilt, because his defense is utterly untenable. Appellants defense of alibi and denial is negative and self-serving. It hardly counts as a worthy and weighty ground for exculpation in a trial involving his freedom and his life. Against the testimony of private complainant who testified on affirmative matters,ix[9] such defense is not only trite but pathetic. Denial is an inherently weak defense, which becomes even weaker in the face of the positive identification by the victim of the appellant as the violator of her honor.x[10] Indeed, we find that private complainant was unequivocal in charging appellant with ravishing

her. The victims account of the rapes complained of was straightforward, detailed, and consistent.xi[11] Her testimony never wavered even after it had been explained to her that her father could be meted out the death penalty if found guilty by the court.xii[12] In a prosecution for rape, the complainants credibility is the single most important issue.xiii[13] The determination of the credibility of witnesses is primarily the function of the trial court. The rationale for this is that the trial court has the advantage of having observed at first hand the demeanor of the witnesses on the stand and, therefore, is in a better position to form an accurate impression and conclusion.xiv[14] Absent any showing that certain facts of value have clearly been overlooked, which if considered could affect the result of the case, or that the trial courts finding are clearly arbitrary, the conclusions reached by the court of origin must be respected and the judgment rendered affirmed.xv[15] Moreover, we note here that private complainants testimony is corroborated by medical findings that lacerations were present in her hymen. The examination conducted by Dr. Bessie Acebes upon the private complainant yielded the following results: Genitalia: grossly female Pubic Hairs: scanty Labia Majora: coaptated Labia Minora: do Fourchette: U-shaped

Vestibule: pinkish Hymen: + old healed laceration at 3 and 9 oclock position(s). Orifice: admits 2 fingers with ease Vagina: Walls: pinkish Ruganities: prominent Uterus: small Cervix: closed Discharges: Mucoid, minimal Smears:

Conclusions: sperm identification (-) Gram staining of vaginal disc.xvi[16] Dr. Acebes testified that her findings of healed hymenal lacerations in the complainants private parts meant a history of sexual congress on her part.xvii[17] According to her, the lacerations may have been caused by the entry of an erect male organ into complainants genitals. The examining physician likewise pointed out that previous coitus may be inferred from complainants Ushaped fourchette since the fourchette of a female who has not yet experienced sexual intercourse is V-shaped.xviii[18] While Dr. Acebes conceded under cross-examination, that the existence of the datum U-shape(d) fourchette does not conclusively and absolutely mean that there was sexual intercourse or contact because it can be caused by masturbation of fingers or other things,xix[19] nonetheless, the presence of the hymenal lacerations tends to support private complainants claim that she was raped by appellant. Appellant next contends that his daughter pressed the rape charges against him because she had quarreled with him after he had castigated her for misbehavior. He stresses that the prosecution did not rebut his testimony regarding his quarrel or misunderstanding with private complainant. He urges us to consider the charges filed against him as the result of his frequent castigation of her delinquent behavior.xx[20] Such allegation of a family feud, however, does not explain the charges away. Filing a case for incestuous rape is of such a nature that a daughters accusation must be taken seriously. It goes against human experience that a girl would fabricate a story which would drag herself as well as her family to a lifetime of dishonor, unless that is the truth, for it is her natural instinct to protect her honor.xxi[21] More so, where her charges could mean the death of her own father, as in this case. Appellant likewise points out that it was very unlikely for him to have committed the crimes imputed to him considering that he and his wife had ten children to attend to and care for. This argument, however, is impertinent and immaterial. Appellant was estranged from his wife, and private complainant was the only child who lived with him.xxii[22] As pointed out by the Solicitor General, appellant was thus free to do as he wished to satisfy his bestial lust on his daughter.xxiii[23] Nor does appellants assertion that private complainant has some psychological problems and a low IQ of 76 in any way favor his defense. These matters did not affect the credibility of her testimony that appellant raped her twice. We note that the victim understood the consequences of prosecuting the rape charges against her own father, as shown by the following testimony of the victim on cross-examination: Q : Were you informed that if, and when your father will be found guilty, your father will be sentenced to death? A : Yes.

Q : Until now you wanted that your father will be sentenced by death? A (Witness nodding.) xxx Q : I will inform you, Miss Witness, that you have filed two cases against your father and in case your father would be found guilty, two death sentences will be imposed against him? A: Yes. Q: With that information, do you still want this case would proceed? A: I want this to proceed.xxiv[24] Indeed, appellant is guilty. But is the penalty of death imposed on him correct? Section 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659,xxv[25] penalizes rape of a minor daughter by her father as qualified rapexxvi[26] and a heinous crime. In proving such felony, the prosecution must allege and prove the elements of rape: (1) sexual congress; (2) with woman; (3) by force or without her consentxxvii[27] and in order to warrant the imposition of capital punishment, the additional elements that: (4) the victim is under 18 years of age at the time of the rape and (5) the offender is a parent of the victim.xxviii[28] In this case, it was sufficiently alleged and proven that the offender was the victims father.xxix[29] But the victims age was not properly and sufficiently proved beyond reasonable doubt. She testified that she was thirteen years old at the time of the rapes. However, she admitted that she did not know exactly when she was born because her mother did not tell her. She further said that her birth certificate was likewise with her mother. In her own words, the victim testified - xxx[30] COURT TO WITNESS Q: When were you born? A: I do not know. Q: You do not know your birthday? A: My mama did not tell me exactly when I asked her. COURT: Proceed. FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request for judicial notice that the victim here is below 18 years old.

ATTY. SURALTA: Admitted. Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof because they already know them.xxxi[31] Under the Rules of Court, judicial notice may either be mandatory or discretionary. Section 1 of Rule 129 of the Rules of Court provides when court shall take mandatory judicial notice of facts SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Section 2 of Rule 129 enumerates the instances when courts may take discretionary judicial notice of facts SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration or ought to be known to judges because of their judicial functions. Thus, it can be considered of public knowledge and judicially noticed that the scene of the rape is not always nor necessarily isolated or secluded for lust is no respecter of time or place. The offense of rape can and has been committed in places where people congregate, e.g. inside a house where there are occupants, a five (5) meter room with five (5) people inside, or even in the same room which the victim is sharing with the accuseds sister.xxxii[32] The Court has likewise taken judicial notice of the Filipinas inbred modesty and shyness and her antipathy in publicly airing acts which blemish her honor and virtue.xxxiii[33] On the other hand, matters which are capable of unquestionable demonstration pertain to fields of professional and scientific knowledge. For example, in People v. Alicante,xxxiv[34] the trial court took judicial notice of the clinical records of the attending physicians concerning the birth of twin baby boys as premature since one of the alleged rapes had occurred 6 to 7 months earlier. As to matters which ought to be known to judges because of their judicial functions, an example would be facts which are ascertainable from the record of court proceedings, e.g. as to when court notices were received by a party. With respect to other matters not falling within the mandatory or discretionary judicial notice, the court can take judicial notice of a fact pursuant to the procedure in Section 3 of Rule 129 of the Rules of Court which requires that -

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. In this case, judicial notice of the age of the victim is improper, despite the defense counsels admission, thereof acceding to the prosecutions motion. As required by Section 3 of Rule 129, as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose. Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below 12 and we found that the rape committed was statutory rape. The mother testified that her daughter was born on October 26, 1974, and so was only 9 years old at the time of the rape on February 12, 1984. Although no birth certificate was presented because the victims birth had allegedly not been registered, her baptismal certificate was duly presented. Hence, we ruled that the mothers testimony coupled with the presentation of the baptismal certificate was sufficient to establish that the victim was below 12 at the time of the rape. However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that appellant can only be convicted of simple rape, and not statutory rape, because of failure of the prosecution to prove the minority of the victim, who was allegedly 10 years old at the time of the rape. The prosecution failed to present either the birth or baptismal certificate of the victim. Also there was no showing that the said documents were lost or destroyed to justify their non-presentation. We held that testimony of the victim and her aunt were hearsay, and that it was not correct for the trial court to judge the age of the victim by her appearance. In several recent cases, we have emphasized the need for independent proof of the age of the victim, aside from testimonial evidence from the victim or her relatives. In People v. Javier,xxxv[35] we stressed that the prosecution must present independent proof of the age of the victim, even though it is not contested by the defense. The minority of the victim must be proved with equal certainty and clearness as the crime itself. In People v. Cula,xxxvi[36] we reiterated that it is the burden of the prosecution to prove with certainty the fact that the victim was below 18 when the rape was committed in order to justify the imposition of the death penalty. Since the record of the case was bereft of any independent evidence thereon, such as the victims duly certified Certificate of Live Birth, accurately showing private complainants age, appellant could not be convicted of rape in its qualified form. In People v. Veloso,xxxvii[37] the victim was alleged to have been only 9 years of age at the time of the rape. It held that the trial court was correct when it ruled that the prosecution failed to prove the victims age other than through the testimony of her father and herself.

Considering the statutory requirement in Section 335 of the Revised Penal Code as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what the Court has held in Javier without any dissent, that the failure to sufficiently establish victims age by independent proof is a bar to conviction for rape in its qualified form. For, in the words of Melo, J., independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the case falls under the qualifying circumstances for the imposition of the death penalty set by the law. In this case, the first rape was committed on September 5, 1997 and is therefore governed by the death penalty law, R.A. 7659. The penalty for the crime of simple rape or rape in its unqualified form under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The second rape was committed on November 7, 1997, after the effectivity of R.A. 8353, also known as the Anti-Rape Law of 1997, which took effect on October 22, 1997. The penalty for rape in its unqualified form remains the same. As to civil indemnity, the trial court correctly awarded P50,000.00 for each count of rape as civil indemnity. However, the award of another P50,000.00 as moral and exemplary damages under Article 2219 in relation to Articles 2217 and 2230 of the Civil Code for each count is imprecise. In rape cases, the prevailing jurisprudence permits the award of moral damages without need for pleading or proof as to the basis thereof.xxxviii[38] Thus, pursuant to current jurisprudence, we award the amount of P50,000.00 as moral damages for each count of rape. The award of exemplary damages separately is also in order, but on a different basis and for a different amount. Appellant being the father of the victim, a fact duly proved during trial, we find that the alternative circumstance of relationship should be appreciated here as an aggravating circumstance. Under Article 2230 of the New Civil Code, exemplary damages may be imposed when the crime was committed with one or more aggravating circumstances. Hence, we find an award of exemplary damages in the amount of P25,000.00 proper. Note that generally, in rape cases imposing the death penalty, the rule is that relationship is no longer appreciated as a generic aggravating circumstance in view of the amendments introduced by R.A. Nos. 7659 and 8353. The father-daughter relationship has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory.xxxix[39] However, in this case, the special qualifying circumstance of relationship was proved but not the minority of the victim, taking the case out of the ambit of mandatory death sentence. Hence, relationship can be appreciated as a generic aggravating circumstance in this instance so that exemplary damages are called for. In rapes committed by fathers on their own daughters, exemplary damages may be imposed to deter other fathers with perverse tendency or aberrant sexual behavior from sexually abusing their own daughters.xl[40] WHEREFORE, the judgment of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case Nos. DU-6186 and DU-6203, is hereby MODIFIED as follows: appellant Tomas Tundag is found guilty of two (2) counts of simple rape; and for each count, sentenced to reclusion perpetua and ordered to pay the victim the amount of P50,000.00 as indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. No pronouncement as to costs.

SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. [G.R. No. 74336. April 7, 1997] J. ANTONIO AGUENZA, petitioner, vs. METROPOLITAN BANK & TRUST CO., VITALIADO P. ARRIETA, LILIA PEREZ, PATRICIO PEREZ and THE INTERMEDIATE APPELLATE COURT, respondents.

DECISION
HERMOSISIMA, JR., J.: Before us is a petition for review on certiorari seeking the reversal of the Decisionxli[1] of the Intermediate Appellate Court (now the Court of Appeals)xlii[2] finding petitioner J. Antonio Aguenza liable under a continuing surety agreement to pay private respondent Metropolitan Bank & Trust Company (hereafter, Metrobank) a loan jointly obtained by the General Manager and a bookkeeper of Intertrade, a corporation of which petitioner is President and in whose behalf petitioner had, in the past, obtained credit lines. The following facts are not disputed: On February 28, 1977, the Board of Directors of Intertrade, through a Board Resolution, authorized and empowered petitioner and private respondent Vitaliado Arrieta, Intertrade's President and Executive Vice-President, respectively, to jointly apply for and open credit lines with private respondent Metrobank. Pursuant to such authority, petitioner and private respondent Arrieta executed several trust receipts from May to June, 1977, the aggregate value of which amounted to P562,443.46, with Intertrade as the entrustee and private respondent Metrobank as the entruster. On March 14, 1977, petitioner and private respondent Arrieta executed a Continuing Suretyship Agreement whereby both bound themselves jointly and severally with Intertrade to pay private respondent Metrobank whatever obligation Intertrade incurs, but not exceeding the amount of P750,000.00. In this connection, private respondent Metrobank's Debit Memo to Intertrade dated March 22, 1978 showed full settlement of the letters of credit covered by said trust receipts in the total amount of P562,443.46. On March 21, 1978, private respondents Arrieta and Lilia P. Perez, a bookkeeper in the employ of Intertrade, obtained a P500,000.00 loan from private respondent Metrobank. Both executed a Promissory Note in favor of said bank in the amount of P500,000.00. Under said note, private respondents Arrieta and Perez promised to pay said amount, jointly and severally, in twenty five

(25) equal installments of P20,000.00 each starting on April 20, 1979 with interest of 18.704% per annum, and in case of default, a further 8% per annum. Private respondents Arrieta and Perez defaulted in the payment of several installments, thus resulting in the entire obligation becoming due and demandable. In 1979, private respondent Metrobank instituted suit against Intertrade, Vitaliado Arrieta, Lilia Perez and her husband, Patricio Perez, to collect not only the unpaid principal obligation, but also interests, fees and penalties, exemplary damages, as well as attorney's fees and costs of suit. More than a year after private respondent Metrobank filed its original complaint, it filed an Amended Complaint dated August 30, 1980 for the sole purpose of impleading petitioner as liable for the loan made by private respondents Arrieta and Perez on March 21, 1978, notwithstanding the fact that such liability is being claimed on account of a Continuing Suretyship Agreement dated March 14, 1977 executed by petitioner and private respondent Arrieta specifically to guarantee the credit line applied for by and granted to, Intertrade, through petitioner and private respondent Arrieta who were specially given authority by Intertrade on February 28, 1977 to open credit lines with private respondent Metrobank. The obligations incurred by Intertrade under such credit lines were completely paid as evidenced by private respondent Metrobank's debit memo in the full amount of P562,443.46. After hearing on the merits, the trial court rendered its decision absolving petitioner from liability and dismissing private respondent Metrobank's complaint against him, the dispositive portion of which reads: "WHEREFORE, judgment is hereby rendered as follows: 1) Declaring that the Promissory Note dated March 21, 1978, marked as Exhibit A, is the responsibility only of defendant Vitaliado P. Arrieta and Lilia P. Perez, in their personal capacity and to the exclusion of defendant Intertrade and Marketing Co. Inc.; 2) Ordering defendants Vitaliado P. Arrieta and Lilia P. Perez to pay, jointly and severally, the plaintiff the sum of P1,062,898.92, due as of September 15, 1982, plus interest, fees and penalties due from that date pursuant to the stipulations in the promissory note until the whole obligations shall have been paid and finally settled; 3) Ordering defendants Vitaliado P. Arrieta and Lilia Perez to pay, jointly and severally, the plaintiff the sum of P44,000.00 by way of attorney's fees and other litigation expenses, albeit there is no award for exemplary damages; 4) Declaring defendant Patricio Perez, as conjugal partner of defendant Lilia Perez, as jointly and severally liable with her for what the latter is ordered to pay per this Decision; 5) Dismissing this case insofar as defendants Intertrade and Marketing Co., Inc. and J. Antonio Aguenza are concerned, although their respective counterclaims against the plaintiff are also ordered dismissed.

Costs of suit shall be paid, jointly and severally, by defendant Vitaliado Arrieta and Lilia Perez. SO ORDERED."xliii[3] Private respondents Arrieta and spouses Perez appealed the foregoing decision to the respondent Court of Appeals. On February 11, 1986, respondent appellate court promulgated the herein assailed decision, the dispositive portion of which reads: "WHEREFORE, the appealed decision is SET ASIDE and another one entered ordering Intertrade & Marketing Co., Inc., and J. Antonio Aguenza, jointly and severally: 1) to pay the Bank the principal of P440,000.00 plus its interest of 18.704% per annum computed from April 15, 1979 until full payment; 2) to pay the Bank the sum equivalent to 8% of P440,000.00 as penalty, computed from July 19, 1978 until full payment; 3) to pay the Bank the sum of P15,000.00 as attorney's fees.

The complaint is dismissed as against Lilia Perez, Patricio Perez and Vitaliado P. Arrieta who are absolved from liability. All counterclaims are dismissed. Costs against Intertrade and Aguenza, jointly and severally. SO ORDERED." In setting aside the decision of the trial court, respondent Court of Appeals ratiocinated such reversal in this wise: "No dispute exists as to the promissory note and the suretyship agreement. The controversy centers on whether the note was a corporate undertaking and whether the suretyship agreement covered the obligation in the note. As far as Intertrade is concerned, it seems clear from its answer that the loan evidenced by the note was a corporate liability. Paragraph 1.3 of the answer admits 'x x x defendant's obtention of the loan from the plaintiff x x x'; the affirmative defenses admit default, and invoking the defense of usury, plead adjustment of excessive interest which Intertrade refused to make. On the basis of this admission, it is no longer in point to discuss, as the appealed decision does, the question of the capacity in which Arrieta and Perez signed the promissory note, Intertrade's admission of its corporate liability being admission also that the signatories signed the note in a

representative capacity. The Bank itself gave corroboration with its insistence on Intertrade's liability under the note. x x x The stated purpose of the note is 'operating capital.' It cannot be contended that the words 'operating capital' refer to the capital requirements of Perez and Arrieta. In the first place, it was not shown that they were in business for themselves. Besides, Perez was only a bookkeeper of Intertrade with a salary of P800.00 a month x x x Their combined resources would not have been sufficient to justify a business loan of the note's magnitude. From these follows the only logical conclusion: that Arrieta and the Perez spouses are not liable on the note. The surety agreement presents a different problem. There is no question that Aguenza signed the agreement x x x Its second paragraph shows, typewritten in bold capitals, that the agreement was executed 'for and in consideration of any existing indebtedness to the Bank of INTERTRADE & MARKETING COMPANY, INC.' Nowhere in its entire text is it shown that its execution was for the benefit of Perez or Arrieta. Aguenza feigns ignorance of the promissory note and claims his knowledge of it came only when he received summons. This is difficult to believe. As Intertrade's first letter to the Bank x x x shows, the Board of Directors and principal stockholders met to discuss the obligation. Aguenza was at the time president of Intertrade and acting chairman of its board x x x. Aguenza also argues that the suretyship was executed to enable Intertrade to avail of letters of credit to finance importations, which had all been paid in full, and therefore the agreement was thereby terminated. Again, the agreement shows up the fallacy of this argument. The document is boldly denominated 'CONTINUING SURETYSHIP,' and paragraph VI thereof stipulates it to be a continuing one, 'to remain in force until written notice shall have been received by the Bank that it has been revoked by the surety x x x' In other words, the option to cancel, in writing, was given to the sureties; the evidence does not show any written notice of such cancellation. x x x And, the argument that the agreement was executed as security for letters of credit that had already been paid is in itself confirmation that the suretyship was meant to benefit Intertrade. The trust receipts x x x and the bills of exchange x x x are all in the name of Intertrade. The suretyship is both retrospective and prospective in its operation. Its wording covers all obligations of Intertrade existing as of its date as well as those that may exist thereafter. Hence, its coverage extends to the promissory note as well."xliv[4] Understandably, petitioner lost no time in bringing this case before us via a petition for review on certiorari on the following grounds: "THE RESPONDENT COURT ERRED IN REVERSING AND [SETTING] ASIDE THE FINDING OF THE TRIAL COURT THAT THE LOAN OF P500,000.00 PROCURED 21 MARCH 1978 BY RESPONDENTS VITALIADO ARRIETA AND LILIA PEREZ IS NOT A CORPORATE LIABILITY OF RESPONDENT INTERTRADE AND THAT PETITIONER IS

NOT LIABLE THEREON UNDER THE 'CONTINUING SURETYSHIP AGREEMENT' DATED 4 MARCH 1977. THE CONCLUSION OF THE RESPONDENT COURT THAT THE LOAN OF P500,000.00 PROCURED 21 MARCH 1978 BY RESPONDENT VITALIADO ARRIETA AND LILIA PEREZ IS A CORPORATE LIABILITY OF RESPONDENT INTERTRADE AND CONSEQUENTLY RENDERING PETITIONER LIABLE IN HIS PERSONAL CAPACITY AS A SURETY UNDER THE 'CONTINUING SURETYSHIP' OF 4 MARCH 1977, IS GROSSLY ERRONEOUS AND PREMISED ON A MISAPPREHENSION OF FACTS. THE CONCLUSIONS AND CONSTRUCTION REACHED BY RESPONDENT COURT FROM THE FACTS AND EVIDENCE OF RECORD, ARE INCORRECT RESULTING IN AN ERRONEOUS DECISION GRAVELY PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF PETITIONER."xlv[5] The petition has merit. The principal reason for respondent appellate court's reversal of the trial court's absolution of petitioner is its finding that the loan made by private respondent Arrieta and Lilia Perez were admitted by Intertrade to be its own obligation. After a careful scrutiny of the records, however, we find and we so rule that there is neither factual nor legal basis for such a finding by respondent Appellate Court. First, the general rule that "the allegations, statements, or admissions contained in a pleading are conclusive as against the pleader"xlvi[6] is not an absolute and inflexible rulexlvii[7] and is subject to exceptions. Rule 129, Section 4, of the Rules of Evidence, provides: "Section 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made." (Underlining supplied) In other words, an admission in a pleading on which a party goes to trial may be contradicted by showing that it was made by improvidence or mistake or that no such admission was made, i.e., "not in the sense in which the admission was made to appear or the admission was taken out of context."xlviii[8] In the case at bench, we find that the respondent Court of Appeals committed an error in appreciating the "Answer" filed by the lawyer of Intertrade as an admission of corporate liability for the subject loan. A careful study of the responsive pleading filed by Atty. Francisco Pangilinan, counsel for Intertrade, would reveal that there was neither express nor implied admission of corporate liability warranting the application of the general rule. Thus, the alleged judicial admission may be contradicted and controverted because it was taken out of context and no admission was made at all.

In any event, assuming arguendo that the responsive pleading did contain the aforesaid admission of corporate liability, the same may not still be given effect at all. As correctly found by the trial court, the alleged admission made in the answer by the counsel for Intertrade was "without any enabling act or attendant ratification of corporate act,"xlix[9] as would authorize or even ratify such admission. In the absence of such ratification or authority, such admission does not bind the corporation. Second, the respondent appellate court likewise adjudged Intertrade liable because of the two letters emanating from the office of Mr. Arrieta which the respondent court considered "as indicating the corporate liability of the corporation."l[10] These documents and admissions cannot have the effect of a ratification of an unauthorized act. As we elucidated in the case of Vicente v. Geraldez,li[11] "ratification can never be made on the part of the corporation by the same persons who wrongfully assume the power to make the contract, but the ratification must be by the officer as governing body having authority to make such contract." In other words, the unauthorized act of respondent Arrieta can only be ratified by the action of the Board of Directors and/or petitioner Aguenza jointly with private respondent Arrieta. We must emphasize that Intertrade has a distinct personality separate from its members. The corporation transacts its business only through its officers or agents. Whatever authority these officers or agents may have is derived from the Board of Directors or other governing body unless conferred by the charter of the corporation. An officer's power as an agent of the corporation must be sought from the statute, charter, the by-laws, as in a delegation of authority to such officer, or the acts of the Board of Directors formally expressed or implied from a habit or custom of doing business.lii[12] Thirdly, we note that the only document to evidence the subject transaction was the promissory note dated March 21, 1978 signed by private respondents Arrieta and Lilia Perez. There is no indication in said document as to what capacity the two signatories had in affixing their signatures thereon. It is noted that the subject transaction is a loan contract for P500,000.00 under terms and conditions which are stringent, if not onerous. The power to borrow money is one of those cases where even a special power of attorney is required.liii[13] In the instant case, there is invariably a need of an enabling act of the corporation to be approved by its Board of Directors. As found by the trial court, the records of this case is bereft of any evidence that Intertrade through its Board of Directors, conferred upon Arrieta and Lilia Perez the authority to contract a loan with Metrobank and execute the promissory note as a security therefor. Neither a board resolution nor a stockholder's resolution was presented by Metrobank to show that Arrieta and Lilia Perez were empowered by Intertrade to execute the promissory note.liv[14] The respondents may argue that the actuation of Arrieta and Lilia Perez was in accordance with the ordinary course of business usages and practices of Intertrade. However, this contention is devoid of merit because the prevailing practice in Intertrade was to explicitly authorize an officer to contract loans in behalf of the corporation. This is evidenced by the fact that previous to the controversy, the Intertrade Board of Directors, through a board resolution, jointly empowered and authorized petitioner and respondent Arrieta to negotiate, apply for, and open credit lines

with Metrobank.lv[15] The participation of these two was mandated to be joint and not separate and individual. In the case at bench, only respondent Arrieta, together with a bookkeeper of the corporation, signed the promissory notes, without the participation and approval of petitioner Aguenza. Moreover, the enabling corporate act on this particular transaction has not been obtained. Neither has it been shown that any provision of the charter or any other act of the Board of Directors exists to confer power on the Executive Vice President acting alone and without the concurrence of its President, to execute the disputed document.lvi[16] Thus, proceeding from the premise that the subject loan was not the responsibility of Intertrade, it follows that the undertaking of Arrieta and the bookkeeper was not an undertaking covered by the Continuing Suretyship Agreement. The rule is that a contract of surety is never presumed; it must be express and cannot extend to more than what is stipulated.lvii[17] It is strictly construed against the creditor, every doubt being resolved against enlarging the liability of the surety. The present obligation incurred in subject contract of loan, as secured by the Arrieta and Perez promissory note, is not the obligation of the corporation and petitioner Aguenza, but the individual and personal obligation of private respondents Arrieta and Lilia Perez. WHEREFORE, the petition is GRANTED, and the questioned decision of the Court of Appealslviii[18] dated February 11, 1986 is REVERSED and SET ASIDE. The judgment of the trial court dated February 29, 1984 is hereby REINSTATED. No Costs. SO ORDERED. Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur. G.R. No. 87434 August 5, 1992 PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and TAGUM PLASTICS, INC., petitioners, vs. SWEET LINES, INC., DAVAO VETERANS ARRASTRE AND PORT SERVICES, INC. and HON. COURT OF APPEALS, respondents. De Lara, De Lunas & Rosales for petitioners. Carlo L. Aquino for Sweet Lines, Inc.

REGALADO, J.:

A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner Philippine American General Insurance Co., Inc. (Philamgen) and Tagum Plastics, Inc. (TPI) against private respondents Sweet Lines, Inc. (SLI) and Davao Veterans Arrastre and Port Services, Inc. (DVAPSI), along with S.C.I. Line (The Shipping Corporation of India Limited) and F.E. Zuellig, Inc., as co-defendants in the court a quo, seeking recovery of the cost of lost or damaged shipment plus exemplary damages, attorney's fees and costs allegedly due to defendants' negligence, with the following factual backdrop yielded by the findings of the court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS "VISHVA YASH" belonging to or operated by the foreign common carrier, took on board at Baton Rouge, LA, two (2) consignments of cargoes for shipment to Manila and later for transhipment to Davao City, consisting of 600 bags Low Density Polyethylene 631 and another 6,400 bags Low Density Polyethylene 647, both consigned to the order of Far East Bank and Trust Company of Manila, with arrival notice to Tagum Plastics, Inc., Madaum, Tagum, Davao City. Said cargoes were covered, respectively, by Bills of Lading Nos. 6 and 7 issued by the foreign common carrier (Exhs. E and F). The necessary packing or Weight List (Exhs. A and B), as well as the Commercial Invoices (Exhs. C and D) accompanied the shipment. The cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff Philippine American General Insurance Co., Inc., (Exh. G). In the course of time, the said vessel arrived at Manila and discharged its cargoes in the Port of Manila for transhipment to Davao City. For this purpose, the foreign carrier awaited and made use of the services of the vessel called M/V "Sweet Love" owned and operated by defendant interisland carrier. Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland carrier. These were commingled with similar cargoes belonging to Evergreen Plantation and also Standfilco. On May 15, 1977, the shipment(s) were discharged from the interisland carrier into the custody of the consignee. A later survey conducted on July 8, 1977, upon the instance of the plaintiff, shows the following: Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain 6,400 bags of Low Density Polyethylene 647 originally inside 160 pallets, there were delivered to the consignee 5,413 bags in good order condition. The survey shows shortages, damages and losses to be as follows: Undelivered/Damaged bags as tallied during discharge from vessel-173 bags; undelivered and damaged as noted and observed whilst stored at the pier-699 bags; and shortlanded-110 bags (Exhs. P and P-1). Of the 600 bags of Low Density Polyethylene 631, the survey conducted on the same day shows an actual delivery to the consignee of only 507 bags in good order condition. Likewise noted were the following losses, damages and shortages, to wit: Undelivered/damaged bags and tally sheets during discharge from vessel-17 bags. Undelivered and damaged as noted and observed whilst stored at the pier-66 bags; Shortlanded-10 bags.

Therefore, of said shipment totalling 7,000 bags, originally contained in 175 pallets, only a total of 5,820 bags were delivered to the consignee in good order condition, leaving a balance of 1,080 bags. Such loss from this particular shipment is what any or all defendants may be answerable to (sic). As already stated, some bags were either shortlanded or were missing, and some of the 1,080 bags were torn, the contents thereof partly spilled or were fully/partially emptied, but, worse, the contents thereof contaminated with foreign matters and therefore could no longer serve their intended purpose. The position taken by the consignee was that even those bags which still had some contents were considered as total losses as the remaining contents were contaminated with foreign matters and therefore did not (sic) longer serve the intended purpose of the material. Each bag was valued, taking into account the customs duties and other taxes paid as well as charges and the conversion 2 value then of a dollar to the peso, at P110.28 per bag (see Exhs. L and L-1 M and O).

Before trial, a compromise agreement was entered into between petitioners, as plaintiffs, and defendants S.C.I. Line and F.E. Zuellig, upon the latter's payment of P532.65 in settlement of the claim against them. Whereupon, the trial court in its order of August 12, 1981 3 granted plaintiffs' motion to dismiss grounded on said amicable settlement and the case as to S.C.I. Line and F.E. Zuellig was consequently "dismissed with prejudice and without pronouncement as to costs." The trial court thereafter rendered judgment in favor of herein petitioners on this dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff Philippine General American Insurance Company Inc. and against the remaining defendants, Sweet Lines Inc. and Davao Veterans Arrastre Inc. as follows: Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of P34,902.00, with legal interest thereon from date of extrajudicial demand on April 28, 1978 (Exh. M) until fully paid; Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port) Services Inc. are directed to pay jointly and severally, the plaintiff the sum of P49,747.55, with legal interest thereon from April 28, 1978 until fully paid; Each of said defendants are ordered to pay the plaintiffs the additional sum of P5,000 is reimbursable attorney's fees and other litigation expenses; Each of said defendants shall pay one-fourth (1/4) costs.
4

Due to the reversal on appeal by respondent court of the trial court's decision on the ground of prescription, 5 in effect dismissing the complaint of herein petitioners, and the denial of their motion for reconsideration, 6 petitioners filed the instant petition for review on certiorari, faulting respondent appellate court with the following errors: (1) in upholding, without proof, the existence of the so-called prescriptive period; (2) granting arguendo that the said prescriptive period does exist, in not finding the same to be null and void; and (3) assuming arguendo that the said prescriptive period is valid and legal, in failing to conclude that petitioners substantially complied therewith. 7

Parenthetically, we observe that herein petitioners are jointly pursuing this case, considering their common interest in the shipment subject of the present controversy, to obviate any question as to who the real party in interest is and to protect their respective rights as insurer and insured. In any case, there is no impediment to the legal standing of Petitioner Philamgen, even if it alone were to sue herein private respondents in its own capacity as insurer, it having been subrogated to all rights of recovery for loss of or damage to the shipment insured under its Marine Risk Note No. 438734 dated March 31, 1977 8 in view of the full settlement of the claim thereunder as evidenced by the subrogation receipt 9 issued in its favor by Far East Bank and Trust Co., Davao Branch, for the account of petitioner TPI. Upon payment of the loss covered by the policy, the insurer's entitlement to subrogation pro tanto, being of the highest equity, equips it with a cause of action against a third party in case of contractual breach. 10 Further, the insurer's subrogatory right to sue for recovery under the bill of lading in case of loss of or damage to the cargo is jurisprudentially upheld. 11 However, if an insurer, in the exercise of its subrogatory right, may proceed against the erring carrier and for all intents and purposes stands in the place and in substitution of the consignee, a fortiori such insurer is presumed to know and is just as bound by the contractual terms under the bill of lading as the insured. On the first issue, petitioners contend that it was error for the Court of Appeals to reverse the appealed decision on the supposed ground of prescription when SLI failed to adduce any evidence in support thereof and that the bills of lading said to contain the shortened periods for filing a claim and for instituting a court action against the carrier were never offered in evidence. Considering that the existence and tenor of this stipulation on the aforesaid periods have allegedly not been established, petitioners maintain that it is inconceivable how they can possibly comply therewith. 12 In refutation, SLI avers that it is standard practice in its operations to issue bills of lading for shipments entrusted to it for carriage and that it in fact issued bills of lading numbered MD-25 and MD-26 therefor with proof of their existence manifest in the records of the case. 13 For its part, DVAPSI insists on the propriety of the dismissal of the complaint as to it due to petitioners' failure to prove its direct responsibility for the loss of and/or damage to the cargo. 14 On this point, in denying petitioner's motion for reconsideration, the Court of Appeals resolved that although the bills of lading were not offered in evidence, the litigation obviously revolves on such bills of lading which are practically the documents or contracts sued upon, hence, they are inevitably involved and their provisions cannot be disregarded in the determination of the relative rights of the parties thereto. 15 Respondent court correctly passed upon the matter of prescription, since that defense was so considered and controverted by the parties. This issue may accordingly be taken cognizance of by the court even if not inceptively raised as a defense so long as its existence is plainly apparent on the face of relevant pleadings. 16 In the case at bar, prescription as an affirmative defense was seasonably raised by SLI in its answer, 17 except that the bills of lading embodying the same were not formally offered in

evidence, thus reducing the bone of contention to whether or not prescription can be maintained as such defense and, as in this case, consequently upheld on the strength of mere references thereto. As petitioners are suing upon SLI's contractual obligation under the contract of carriage as contained in the bills of lading, such bills of lading can be categorized as actionable documents which under the Rules must be properly pleaded either as causes of action or defenses, 18 and the genuineness and due execution of which are deemed admitted unless specifically denied under oath by the adverse party. 19 The rules on actionable documents cover and apply to both a cause of action or defense based on said documents. 20 In the present case and under the aforestated assumption that the time limit involved is a prescriptive period, respondent carrier duly raised prescription as an affirmative defense in its answer setting forth paragraph 5 of the pertinent bills of lading which comprised the stipulation thereon by parties, to wit:
5. Claims for shortage, damage, must be made at the time of delivery to consignee or agent, if container shows exterior signs of damage or shortage. Claims for non-delivery, misdelivery, loss or damage must be filed within 30 days from accrual. Suits arising from shortage, damage or loss, non-delivery or misdelivery shall be instituted within 60 days from date of accrual of right of action. Failure to file claims or institute judicial proceedings as herein provided constitutes waiver of claim or right of action. In no case shall carrier be liable for any delay, non-delivery, misdelivery, loss of damage to cargo while cargo is 21 not in actual custody of carrier.

In their reply thereto, herein petitioners, by their own assertions that

2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.'s Answer, plaintiffs state that such agreements are what the Supreme Court considers as contracts of adhesion (see Sweet Lines, Inc. vs. Hon. Bernardo Teves, et al., G.R. No. L-37750, May 19, 1978) and, consequently, the provisions therein which are contrary to law and public 22 policy cannot be availed of by answering defendant as valid defenses.

thereby failed to controvert the existence of the bills of lading and the aforequoted provisions therein, hence they impliedly admitted the same when they merely assailed the validity of subject stipulations. Petitioners' failure to specifically deny the existence, much less the genuineness and due execution, of the instruments in question amounts to an admission. Judicial admissions, verbal or written, made by the parties in the pleadings or in the course of the trial or other proceedings in the same case are conclusive, no evidence being required to prove the same, and cannot be contradicted unless shown to have been made through palpable mistake or that no such admission was made. 23 Moreover, when the due execution and genuineness of an instrument are deemed admitted because of the adverse party's failure to make a specific verified denial thereof, the instrument need not be presented formally in evidence for it may be considered an admitted fact. 24

Even granting that petitioners' averment in their reply amounts to a denial, it has the procedural earmarks of what in the law on pleadings is called a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. 25 Thus, while petitioners objected to the validity of such agreement for being contrary to public policy, the existence of the bills of lading and said stipulations were nevertheless impliedly admitted by them. We find merit in respondent court's comments that petitioners failed to touch on the matter of the non-presentation of the bills of lading in their brief and earlier on in the appellate proceedings in this case, hence it is too late in the day to now allow the litigation to be overturned on that score, for to do so would mean an over-indulgence in technicalities. Hence, for the reasons already advanced, the non-inclusion of the controverted bills of lading in the formal offer of evidence cannot, under the facts of this particular case, be considered a fatal procedural lapse as would bar respondent carrier from raising the defense of prescription. Petitioners' feigned ignorance of the provisions of the bills of lading, particularly on the time limitations for filing a claim and for commencing a suit in court, as their excuse for non-compliance therewith does not deserve serious attention. It is to be noted that the carriage of the cargo involved was effected pursuant to an "Application for Delivery of Cargoes without Original Bill of Lading" issued on May 20, 1977 in Davao City 26 with the notation therein that said application corresponds to and is subject to the terms of bills of lading MD-25 and MD-26. It would be a safe assessment to interpret this to mean that, sight unseen, petitioners acknowledged the existence of said bills of lading. By having the cargo shipped on respondent carrier's vessel and later making a claim for loss on the basis of the bills of lading, petitioners for all intents and purposes accepted said bills. Having done so they are bound by all stipulations contained therein. 27 Verily, as petitioners are suing for recovery on the contract, and in fact even went as far as assailing its validity by categorizing it as a contract of adhesion, then they necessarily admit that there is such a contract, their knowledge of the existence of which with its attendant stipulations they cannot now be allowed to deny. On the issue of the validity of the controverted paragraph 5 of the bills of lading above quoted which unequivocally prescribes a time frame of thirty (30) days for filing a claim with the carrier in case of loss of or damage to the cargo and sixty (60) days from accrual of the right of action for instituting an action in court, which periods must concur, petitioners posit that the alleged shorter prescriptive period which is in the nature of a limitation on petitioners' right of recovery is unreasonable and that SLI has the burden of proving otherwise, citing the earlier case of Southern Lines, Inc. vs. Court of Appeals, et al. 28 They postulate this on the theory that the bills of lading containing the same constitute contracts of adhesion and are, therefore, void for being contrary to public policy, supposedly pursuant to the dictum in Sweet Lines, Inc. vs. Teves, et al. 29

Furthermore, they contend, since the liability of private respondents has been clearly established, to bar petitioners' right of recovery on a mere technicality will pave the way for unjust enrichment. 30 Contrarily, SLI asserts and defends the reasonableness of the time limitation within which claims should be filed with the carrier; the necessity for the same, as this condition for the carrier's liability is uniformly adopted by nearly all shipping companies if they are to survive the concomitant rigors and risks of the shipping industry; and the countervailing balance afforded by such stipulation to the legal presumption of negligence under which the carrier labors in the event of loss of or damage to the cargo. 31 It has long been held that Article 366 of the Code of Commerce applies not only to overland and river transportation but also to maritime transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from another angle, it is more accurate to state that the filing of a claim with the carrier within the time limitation therefor under Article 366 actually constitutes a condition precedent to the accrual of a right of action against a carrier for damages caused to the merchandise. The shipper or the consignee must allege and prove the fulfillment of the condition and if he omits such allegations and proof, no right of action against the carrier can accrue in his favor. As the requirements in Article 366, restated with a slight modification in the assailed paragraph 5 of the bills of lading, are reasonable conditions precedent, they are not limitations of action. 33 Being conditions precedent, their performance must precede a suit for enforcement 34 and the vesting of the right to file spit does not take place until the happening of these conditions. 35 Now, before an action can properly be commenced all the essential elements of the cause of action must be in existence, that is, the cause of action must be complete. All valid conditions precedent to the institution of the particular action, whether prescribed by statute, fixed by agreement of the parties or implied by law must be performed or complied with before commencing the action, unless the conduct of the adverse party has been such as to prevent or waive performance or excuse non-performance of the condition. 36 It bears restating that a right of action is the right to presently enforce a cause of action, while a cause of action consists of the operative facts which give rise to such right of action. The right of action does not arise until the performance of all conditions precedent to the action and may be taken away by the running of the statute of limitations, through estoppel, or by other circumstances which do not affect the cause of action. 37 Performance or fulfillment of all conditions precedent upon which a right of action depends must be sufficiently alleged, 38 considering that the burden of proof to show that a party has a right of action is upon the person initiating the suit. 39 More particularly, where the contract of shipment contains a reasonable requirement of giving notice of loss of or injury to the goods, the giving of such notice is a condition precedent to the action for loss or injury or the right to enforce the carrier's liability. Such requirement is not an empty formalism. The fundamental reason or purpose of such a stipulation is not to relieve the carrier from just liability, but reasonably to inform it that

the shipment has been damaged and that it is charged with liability therefor, and to give it an opportunity to examine the nature and extent of the injury. This protects the carrier by affording it an opportunity to make an investigation of a claim while the matter is fresh and easily investigated so as to safeguard itself from false and fraudulent claims.
40

Stipulations in bills of lading or other contracts of shipment which require notice of claim for loss of or damage to goods shipped in order to impose liability on the carrier operate to prevent the enforcement of the contract when not complied with, that is, notice is a condition precedent and the carrier is not liable if notice is not given in accordance with the stipulation, 41 as the failure to comply with such a stipulation in a contract of carriage with respect to notice of loss or claim for damage bars recovery for the loss or damage suffered. 42 On the other hand, the validity of a contractual limitation of time for filing the suit itself against a carrier shorter than the statutory period therefor has generally been upheld as such stipulation merely affects the shipper's remedy and does not affect the liability of the carrier. In the absence of any statutory limitation and subject only to the requirement on the reasonableness of the stipulated limitation period, the parties to a contract of carriage may fix by agreement a shorter time for the bringing of suit on a claim for the loss of or damage to the shipment than that provided by the statute of limitations. Such limitation is not contrary to public policy for it does not in any way defeat the complete vestiture of the right to recover, but merely requires the assertion of that right by action at an earlier period than would be necessary to defeat it through the operation of the ordinary statute of limitations. 43 In the case at bar, there is neither any showing of compliance by petitioners with the requirement for the filing of a notice of claim within the prescribed period nor any allegation to that effect. It may then be said that while petitioners may possibly have a cause of action, for failure to comply with the above condition precedent they lost whatever right of action they may have in their favor or, token in another sense, that remedial right or right to relief had prescribed. 44 The shipment in question was discharged into the custody of the consignee on May 15, 1977, and it was from this date that petitioners' cause of action accrued, with thirty (30) days therefrom within which to file a claim with the carrier for any loss or damage which may have been suffered by the cargo and thereby perfect their right of action. The findings of respondent court as supported by petitioners' formal offer of evidence in the court below show that the claim was filed with SLI only on April 28, 1978, way beyond the period provided in the bills of lading 45 and violative of the contractual provision, the inevitable consequence of which is the loss of petitioners' remedy or right to sue. Even the filing of the complaint on May 12, 1978 is of no remedial or practical consequence, since the time limits for the filing thereof, whether viewed as a condition precedent or as a prescriptive period, would in this case be productive of the same result, that is, that petitioners had no right of action to begin with or, at any rate, their claim was timebarred.

What the court finds rather odd is the fact that petitioner TPI filed a provisional claim with DVAPSI as early as June 14, 1977 46 and, as found by the trial court, a survey fixing the extent of loss of and/or damage to the cargo was conducted on July 8, 1977 at the instance of petitioners. 47 If petitioners had the opportunity and awareness to file such provisional claim and to cause a survey to be conducted soon after the discharge of the cargo, then they could very easily have filed the necessary formal, or even a provisional, claim with SLI itself 48 within the stipulated period therefor, instead of doing so only on April 28, 1978 despite the vessel's arrival at the port of destination on May 15, 1977. Their failure to timely act brings us to no inference other than the fact that petitioners slept on their rights and they must now face the consequences of such inaction. The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx It must be noted, at this juncture, that the aforestated time limitation in the presentation of claim for loss or damage, is but a restatement of the rule prescribed under Art. 366 of the Code of Commerce which reads as follows: Art. 366. Within the twenty-four hours following the receipt of the merchandise, the claim against the carrier for damage or average which may be found therein upon opening the packages, may be made, provided that the indications of the damage or average which gives rise to the claim cannot be ascertained from the outside part of the packages, in which case the claims shall be admitted only at the time of the receipt. After the periods mentioned have elapsed, or the transportation charges have been paid, no claim shall be admitted against the carrier with regard to the condition in which the goods transported were delivered. Gleanable therefrom is the fact that subject stipulation even lengthened the period for presentation of claims thereunder. Such modification has been sanctioned by the Supreme Court. In the case of Ong Yet (M)ua Hardware Co., Inc. vs. Mitsui Steamship Co., Ltd., et al., 59 O.G. No. 17, p. 2764, it ruled that Art. 366 of the Code of Commerce can be modified by a bill of lading prescribing the period of 90 days after arrival of the ship, for filing of written claim with the carrier or agent, instead of the 24-hour time limit after delivery provided in the aforecited legal provision. Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that the commencement of the instant suit on May 12, 1978 was indeed fatally late. In view of the express provision that "suits arising from . . . damage or loss shall be instituted within 60 days from date of accrual of right of action," the present action necessarily fails on ground of prescription. In the absence of constitutional or statutory prohibition, it is usually held or recognized that it is competent for the parties to a contract of shipment to agree on a limitation of time shorter than the statutory period, within which action for breach of the contract shall be brought, and such limitation will be enforced if reasonable . . . (13 C.J.S. 496-497)

A perusal of the pertinent provisions of law on the matter would disclose that there is no constitutional or statutory prohibition infirming paragraph 5 of subject Bill of Lading. The stipulated period of 60 days is reasonable enough for appellees to ascertain the facts and thereafter to sue, if need be, and the 60-day period agreed upon by the parties which shortened the statutory period within which to bring action for breach of contract is valid 49 and binding. . . . (Emphasis in the original text.)

As explained above, the shortened period for filing suit is not unreasonable and has in fact been generally recognized to be a valid business practice in the shipping industry. Petitioners' advertence to the Court's holding in the Southern Lines case, supra, is futile as what was involved was a claim for refund of excess payment. We ruled therein that non-compliance with the requirement of filing a notice of claim under Article 366 of the Code of Commerce does not affect the consignee's right of action against the carrier because said requirement applies only to cases for recovery of damages on account of loss of or damage to cargo, not to an action for refund of overpayment, and on the further consideration that neither the Code of Commerce nor the bills of lading therein provided any time limitation for suing for refund of money paid in excess, except only that it be filed within a reasonable time. The ruling in Sweet Lines categorizing the stipulated limitation on venue of action provided in the subject bill of lading as a contract of adhesion and, under the circumstances therein, void for being contrary to public policy is evidently likewise unavailing in view of the discrete environmental facts involved and the fact that the restriction therein was unreasonable. In any case, Ong Yiu vs. Court of Appeals, et al., 50 instructs us that "contracts of adhesion wherein one party imposes a ready-made form of contract on the other . . . are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres he gives his consent." In the present case, not even an allegation of ignorance of a party excuses noncompliance with the contractual stipulations since the responsibility for ensuring full comprehension of the provisions of a contract of carriage devolves not on the carrier but on the owner, shipper, or consignee as the case may be. While it is true that substantial compliance with provisions on filing of claim for loss of or damage to cargo may sometimes suffice, the invocation of such an assumption must be viewed vis-a-vis the object or purpose which such a provision seeks to attain and that is to afford the carrier a reasonable opportunity to determine the merits and validity of the claim and to protect itself against unfounded impositions. 51 Petitioners' would nevertheless adopt an adamant posture hinged on the issuance by SLI of a "Report on Losses and Damages," dated May 15, 1977, 52 from which petitioners theorize that this charges private respondents with actual knowledge of the loss and damage involved in the present case as would obviate the need for or render superfluous the filing of a claim within the stipulated period. Withal, it has merely to be pointed out that the aforementioned report bears this notation at the lower part thereof: "Damaged by Mla. labor upon unloading; B/L noted at port of origin," as an explanation for the cause of loss of and/or damage to the cargo, together with an iterative note stating that "(t)his Copy should be submitted together with your

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

and/or upon discharge of the cargoes from the interisland vessel the MV "SWEET LOVE," in Davao City and later while in the custody of defendant arrastre operator.

54

The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and Aviation Claims Manager of petitioner Philamgen, was definitely inconclusive and the responsibility for the loss or damage could still not be ascertained therefrom:
Q In other words, Mr. Cabato, you only computed the loss on the basis of the figures submitted to you and based on the documents like the survey certificate and the certificate of the arrastre? A Yes, sir. Q Therefore, Mr. Cabato, you have no idea how or where these losses were incurred? A No, sir. xxx xxx xxx Q Mr. Witness, you said that you processed and investigated the claim involving the shipment in question. Is it not a fact that in your processing and investigation you considered how the shipment was transported? Where the losses could have occurred and what is the extent of the respective responsibilities of the bailees and/or carriers involved? xxx xxx xxx A With respect to the shipment being transported, we have of course to get into it in order to check whether the shipment coming in to this port is in accordance with the policy condition, like in this particular case, the shipment was transported to Manila and transhipped through an interisland vessel in accordance with the policy. With respect to the losses, we have a general view where losses could have occurred. Of course we will have to consider the different bailees wherein the shipment must have passed through, like the ocean vessel, the interisland vessel and the arrastre, but definitely at that point and time we cannot determine the extent of each liability. We are only interested at that point and time in the liability as regards the underwriter in accordance with the policy that we issued. xxx xxx xxx Q Mr. Witness, from the documents, namely, the survey of Manila Adjusters and Surveyors Company, the survey of Davao Arrastre contractor and the bills of lading issued by the defendant Sweet Lines, will you be able to tell the respective liabilities of the bailees and/or carriers concerned? A No, sir. (Emphasis ours.)
55

Neither did nor could the trial court, much less the Court of Appeals, precisely establish the stage in the course of the shipment when the goods were lost, destroyed or damaged. What can only be inferred from the factual findings of the trial court is that by the time the cargo was discharged to DVAPSI, loss or damage had already occurred and that the same could not have possibly occurred while the same was in the custody of DVAPSI, as demonstrated by the observations of the trial court quoted at the start of this opinion. ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and the dismissal of the complaint in the court a quo as decreed by respondent Court of Appeals in its challenged judgment is hereby AFFIRMED. SO ORDERED. Narvasa, C.J., Padilla and Nocon, JJ., concur. G.R. No. 111244 December 15, 1997 ARTURO ALANO, petitioner, vs. THE HONORABLE COURT OF APPEALS, HON. ENRICO A. LANZANAS, Presiding Judge, Regional Trial Court, National Capital Judicial Region, Manila, Branch 37, and ROBERTO CARLOS, respondents.

ROMERO, J.: Petitioner Arturo Alano has filed this petition for review of the decision 1 of the Court of Appeals in CA-G.R. SP No. 28150 which affirmed in toto the order of the Regional Trial Court of Manila, Branch 37 2 denying petitioner's motion for the suspension of proceeding of Criminal Case No. 90-84933, entitled "People of the Philippines vs. Arturo Alano" as well as his motion for reconsideration. Criminal Case No. 90-84933 is a prosecution for the crime of estafa. The information 3 alleges:
That on or about June 10, 1986, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud Roberto S. Carlos in the following manner, to wit: the said accused, pretending to be still the owner of a parcel of land with an area of 1,172 square meters, more or less, located at Bicutan, Taguig, Metro Manila, covered by Tax Declaration No. 120-004-00398, well knowing that he had previously sold the same to the said Roberto S. Carlos for P30,000.00, sold the aforesaid property for the second time to one Erlinda B. Dandoy for P87,900.00, thereby depriving the said Roberto S. Carlos of his rightful ownership/possession of the said parcel of land, to the damage and prejudice of the said Roberto S. Carlos in the aforesaid amount of P30,000.00, Philippine currency.

Contrary to law.

Petitioner moved for the suspension of the criminal case on the ground that there was a prejudicial question pending resolution in another case being tried in the Regional Trial Court, National Capital Region, Pasig, Branch 68. The case, docketed as Civil Case No. 55103 and entitled "Roberto Carlos and Trinidad M. Carlos v. Arturo Alano, et. al.," concerns the nullity of the sale and recovery of possession and damages. In the aforementioned Civil Case, private respondent filed a complaint against the petitioner seeking the annulment of the second sale of said parcel of land made by the petitioner to a certain Erlinda Dandoy on the premise that the said land was previously sold to them. In his answer, petitioner contends that he never sold the property to the private respondents and that his signature appearing in the deed of absolute sale in favor of the latter was a forgery, hence, the alleged sale was fictitious and inexistent. At this juncture, it is worth mentioning that the civil case was filed on March 1, 1985, five years before June 19, 1990 when the criminal case for estafa was instituted. On October 3, 1991, the trial court denied the petitioner's motion as well as a subsequent motion for reconsideration. Aggrieved, petitioner filed a petition for certiorari and prohibition before the Court of Appeals seeking the nullification of the assailed order. On July 26, 1993, 4 the Court of Appeals dismissed the petition for lack of merit, the decretal portion of which reads:
WHEREFORE, finding no merit to the petition, the same is hereby DISMISSED, with cost against petitioner.

Hence, this petition. The only issue in this petition is whether the pendency of Civil Case No. 55103, is a prejudicial question justifying the suspension of the proceedings in Criminal Case No. 90-84933 filed against the petitioner. Petitioner alleges that his signature appearing in the first deed of absolute sale in favor of private respondent was a forgery, such that there was no second sale covering the said parcel of land. Otherwise stated, if the Court in the said Civil Case rules that the first sale to herein private respondent was null and void, due to the forgery of petitioner's signature in the first deed of sale, it follows that the criminal case for estafa would not prosper. While at first blush there seems to be merit in petitioner's claim, we are compelled to affirm the Court of Appeal's findings. The doctrine of prejudicial question comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because

howsoever the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal action. 5 In other words, if both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exists, provided the other element or characteristic is satisfied. 6 On the basis of the foregoing and a perusal of the facts obtaining in the case at bar, the disposition of the issue raised need not unduly detain us. We have already ruled that a criminal action for estafa (for alleged double sale of property) is a prejudicial question to a civil action for nullity of the alleged deed of sale and the defense of the alleged vendor is the forgery of his signature in the deed. 7 Notwithstanding the apparent prejudicial question involved, the Court of Appeals still affirmed the Order of the trial court denying petitioner's motion for the suspension of the proceeding on the ground that petitioner, in the stipulation of facts, had already admitted during the pre-trial order dated October 5, 1990 of the criminal case the validity of his signature in the first deed of sale between him and the private respondent, as well as his subsequent acknowledgment of his signature in twenty-three (23) cash vouchers evidencing the payments made by the private respondent. 8 Moreover, it was also noted by the Court of Appeals that petitioner even wrote to the private respondent offering to refund whatever sum the latter had paid. 9 In this regard, the pre-trial provision on criminal procedure found in Rule 118 of the Rules of Court provides:
Sec. 2. Pre-trial conference; subject. . . . The pre-trial conference shall consider the following: (a) Plea bargaining (b) Stipulation of facts

From the foregoing, there is no question that a stipulation of facts by the parties in a criminal case is recognized as declarations constituting judicial admissions, hence, binding upon the parties 10 and by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statement contained in the exhibit. 11 Accordingly, the stipulation of facts stated in the pre-trial order amounts to an admission by the petitioner resulting in the waiver of his right to present evidence on his behalf. While it is true that the right to present evidence is guaranteed under the Constitution, 12 this right may be waived expressly or impliedly. 13 Since the suspension of the criminal case due to a prejudicial question is only a procedural matter, the same is subject to a waiver by virtue of the prior acts of the accused. After all, the doctrine of waiver is made solely for the benefit and protection of

the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. 14 Accordingly, petitioner's admission in the stipulation of facts during the pre-trial of the criminal amounts to a waiver of his defense of forgery in the civil case. Hence, we have no reason to nullify such waiver, it being not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. 15 Furthermore, it must be emphasized that the pre-trial order was signed by the petitioner himself. As such, the rule that no proof need be offered as to any facts admitted at a pre-trial hearing applies. 16 WHEREFORE, in view of the foregoing, the appealed decision of the Court of Appeals dated July 26, 1993 is AFFIRMED. Costs against petitioner. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur. [G.R. No. 137043. December 12, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOEL SOLAYAO, accused-appellant. DECISION DAVIDE, JR., C.J.: Accused-appellant Joel Solayao (JOEL) was charged with murder before the Regional Trial Court, Branch 30, in Basey, Samar, in Criminal Case No. 95-2091 under an informationlix[1] whose accusatory portion reads as follows: That on or about the 29th day of March, 1995, at about 5:00 oclock in the afternoon, at Brgy. Pagsulhogon, Municipality of Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and deliberate intent to kill one ANTONIO LACABA, did, then and there, wilfully, unlawfully and feloniously attacked [sic], assaulted [sic], and stabbed [sic] the said victim who was seated on the front yard while enjoying with two others in munching bettle [sic] nuts, with a deadly weapon locally known as pisao, which accused had provided himself for the purpose, thereby inflicting upon the victim wounds on his body resulting in his death. CONTRARY TO LAW. JOEL entered a plea of not guilty upon arraignment.lx[2] At the trial, the prosecution presented as witnesses Julita Cabaero, Elderio Betasolo, P/Supt. Angel A. Cordero and PNP member Dionaldo Tampil. For its part, the defense presented JOEL and Antonio Flor.

Julita Cabaero testified that on 29 March 1995 at about 5:00 P.M., she was eating some dried peas at the porch of her house in Barangay Pagsulhogon, Sta. Rita, Samar. Her neighbor Antonio Lacaba (ANTONIO) was then sitting on the cement pavement of MacArthur Highway chewing betel nuts, together with Iluminado Ortillo, Elderio Betasolo, Dominador Asadon, Lazaro Ortillo and Narciso Florante. The distance between Julita and ANTONIOs group was about eight arms-length or fifteen meters. Suddenly, Julita saw her godson by marriage JOEL, who just came from his fathers house across the road, stab ANTONIO. No argument preceded the stabbing. ANTONIO was hit on the right side of his back. ANTONIO ran towards his house but was overtaken by JOEL, who then stabbed him the second time at the left side of his body causing the former to fall near the stairs of his house. JOEL stabbed ANTONIO again, hitting the latter on the left leg. ANTONIO, though bigger than JOEL, was not able to get the weapon because JOEL immediately ran to his fathers house after stabbing him three times. ANTONIOs companions also scampered away. Julita ran towards ANTONIO and shouted for help. Her son and two neighbors Pio Tabuyan and Teresita Asadon came to assist her. lxi[3] Julitas testimony was substantially corroborated by witness Elderio Betasolo. He recounted that on 29 March 1995 at about 5:00 P.M., he went out of his house to cut some firewood. He saw ANTONIO chewing some betel nuts, together with Doming Asadon, Iluminado Ortillo and others. There were also children playing around. After a short while, he saw JOEL, with both arms crossed at his chest, cross the road and walk towards ANTONIO. Without much ado, JOEL held ANTONIOs hair and stabbed him on the back. Afraid of what he just witnessed, Elderio rushed back to his house. He learned later that ANTONIO was brought to the hospital by his wife and a certain Junior Cabaero.lxii[4] Elderio further testified that he saw Julita at the porch of her house before the stabbing incident. But contrary to Julitas statement, he was not with ANTONIOs group. He confirmed that ANTONIOs companions dispersed while the stabbing incident was taking place: Iluminado Ortillo ran to call a barangay tanod; while two others sought assistance from soldiers, who thereafter arrested JOEL and brought him to the PNP Sub-station in Barangay Tulay, Sta. Rita, Samar. Julita hastily went towards ANTONIO to help him and tried to bandage his wounds.lxiii[5] Witness P/Supt. Angel Cordero, Chief Medico-Legal Officer of PNP Crime Laboratory, Camp Ruperto Kangleon, Palo, Leyte, whom the defense admitted as an expert witness, was the one who conducted a post mortem examination on the cadaver of ANTONIO and prepared the Medico-Legal Necropsy Report,lxiv[6] which the defense likewise admitted. His findings were as follows: POSTMORTEM FINDINGS: GENERAL: Fairly nourished, fairly developed, male cadaver in rigor mortis with postmortem lividity on the dependent portions of the body. Lips and nailbeds are cyanotic. Conjunctiva are pale. CHEST:

- Stab wound, right scapular region, inferior portion, measuring 2x1x17cms. PML, directed inwards non-penetrating. - Stab wound, lateral portion of the left chest at the left midaxillary line, directed medially inwards, penetrating the thoracic cavity, puncturing the middle lobe of the lung. This measures 2x1x18cms AML. - Stab wound, left, thigh, posterior portion upper third, measuring 2x1cm. - Blood clots were found at the left thoracic cavity. REMARKS: Cause of death is shock and intrathoracic hemorrhage due to stab wounds of the chest, puncturing the left lung. Considering the positions of the wounds ANTONIO sustained, P/Supt. Angel believed that all the three wounds were inflicted from behind. The second wound was fatal, since it penetrated the lungs. From the relative positions of the parties, he likewise opined that the assailant was lefthanded.lxv[7] Witness Dionaldo Tampil, the desk officer of the Philippine National Police Station at Sta. Rita, Samar, declared that he received the report about the stabbing incident in question on 29 March 1995. JOEL was voluntarily surrendered to him, as well as the knife used in the commission of the crime. Thus, he entered in the police blotterlxvi[8] the facts supplied by the barangay officials who turned JOEL in. When he asked JOEL why he stabbed ANTONIO, the former answered that they had an altercation.lxvii[9] On the part of the defense, JOEL testified that on 29 March 1995 at about 4:00 P.M., after working in the farm, he rested at his fathers house while listening to a radio cassette. On his way home, he was accosted by ANTONIO and the latters cousin Doming Lacaba. Both had been drinking at ANTONIOs house that morning, together with Emelito Lacaba and Iluminado Ortillo. When they approached him, ANTONIO immediately tried to stab JOEL three times with a pisao (knife). JOEL was not hit because at the first blow he moved backward; on the second blow he made himself fall upon a fence; and on the third blow he was able to duck by the fence and the pisao hit the bamboo fence instead and was imbedded therein. He and ANTONIO wrestled for the possession of the weapon for some time. As they rolled on the ground, he noticed that ANTONIOs face was red and he had a drunken smell.lxviii[10] During the struggle, ANTONIO got wounded with the pisao and fell down, giving JOEL an opportunity to run away with the pisao which he later surrendered to Barangay Kagawad Tony Flor. He identified the weapon in court and disclosed that it was bent because it hit the bamboo fence while he and ANTONIO were wrestling.lxix[11] As to the motive of the attack, JOEL declared that ANTONIO had a grudge against him because of the mauling incident on 31 December 1994. On said date at about 4:00 P.M. there was a

drinking spree in the house of his father. Jimmy Lacaba, Anecito Lacaba, ANTONIO, a certain Fermo, and JOELs brothers Lito and Marlo were there. JOEL did not join them, as he was so tired. Suddenly, he saw Doming Lacaba, Jimmy Lacaba and ANTONIO maul his father. Seeing this, his brother Lito attacked ANTONIO, hitting him on the right shoulder and left arm. Wounded, ANTONIO ran towards his house. ANTONIO did not file a case against Lito, but JOEL learned from other people that ANTONIO vowed to get even, thus the stabbing incident in the case at bar. lxx[12] Defense witness Antonio Flor corroborated the narration of JOEL on how the incident on 29 March 1995 happened. He confirmed that ANTONIO was very much bigger than JOEL. He said that when ANTONIO attacked JOEL, the latter could not escape because of the bamboo fence. As a Kagawad, he tried to pacify the opponents, but both did not heed him. When they were finally separated from each other, JOEL ran towards his fathers house, while ANTONIO went inside his house.lxxi[13] Flor followed JOEL to his fathers house and told the latter to surrender. JOEL agreed by giving the knife to him. JOEL then requested Flor to bring him to the police station, which he did. As regards ANTONIO, Flor later learned that he was brought to the hospital and subsequently died.lxxii[14] The trial court gave credence to the testimonies of the prosecution witnesses and discarded those of the defense witnesses because they were not coordinated in substantial aspects and did not jibe with the natural course of things. It appreciated the qualifying circumstance of treachery and the mitigating circumstance of voluntary surrender. It therefore convicted him of the crime of murder in its decisionlxxiii[15] dated 2 May 1997, the dispositive portion of which reads: WHEREFORE, finding the accused JOEL SOLAYAO, guilty beyond reasonable doubt of the crime of Murder for the treacherous killing of the deceased Antonio Lacaba, but taking into consideration the lone mitigating circumstance of voluntary surrender, he is hereby sentenced to suffer the penalty of Reclusion Perpetua; to indemnify the heirs of the deceased Antonio Lacaba the amount of P50,000.00, but without subsidiary imprisonment in case of insolvency; and to pay the costs of this case, if any. Dissatisfied with the judgment JOEL interposed the instant appeal. In his Appellants Brief, JOEL alleges that the trial court erred in I FINDING THE ACCUSSED [sic] GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II FINDING TREACHERY AS A QUALIFYING CIRCUMSTANCE FOR THE KILLING OF THE VICTIM.

III ASSUMING FOR THE SAKE OF ARGUMENT THAT THE ACCUSSED [sic] IS GUILTY, HE IS GUILTY OF THE CRIME OF HOMICIDE WITH THE GENERIC MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER. In his first two assigned errors, JOEL argues that the narration of the prosecution witnesses failed to prove that the crime committed was murder qualified by treachery. He claims that the specific design or manner of the attack on ANTONIO was not proved. The mere fact that the accused was at the back of the victim at the inception of the attack or that the attack was sudden and unexpected would not forthwith establish the element of alevosia necessary to elevate homicide to murder. Thus, the crime committed was homicide, and not murder. In his third assigned error, JOEL asserts that the generic mitigating circumstance of voluntary surrender should have been appreciated in his favor to reduce the penalty imposed. Clearly then, JOEL does not seek for his acquittal but for the modification of the judgment of the court. He prays that he be convicted of homicide only and be sentenced to suffer an indeterminate penalty after appreciating in his favor the generic mitigating circumstance of voluntary surrender and to pay an amount of indemnity according to current jurisprudence. In the Appellees Brief, the Office of the Solicitor General (OSG) prays for the affirmance in toto of the trial courts judgment. It confirms that there was enough evidence on record to support the finding of the trial court on treachery. Our review of the evidence supports the conclusion of the trial court on the presence of treachery. For treachery to be appreciated, two elements must concur: (1) the means of execution employed gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.lxxiv[16] Julita Cabaero testified that the assault was unprovoked. There was no exchange of words between the victim and the accused at any time before the actual attack. The accused, upon approaching and coming near his unarmed victim, immediately stabbed him. The three blows were delivered continuously that the victim was able to run only a few meters towards his house.lxxv[17] The attack was unexpected. ANTONIO, although bigger than the accused, had no chance to defend himself. He was simply overwhelmed by the swiftness of the attack, thus ensuring the execution of the offense without risk to JOEL. Clearly then, the requisites of treachery were proved. In view of the foregoing, we agree with the trial court in holding JOEL guilty beyond reasonable doubt of the crime of murder as charged. Under Article 248 of the Revised Penal Code, as amended, the penalty for murder if committed with treachery is reclusion perpetua to death. Contrary to JOELs assertion, the mitigating circumstance of voluntary surrender was duly taken into account by the trial court. With the appreciation of such circumstance, the penalty imposed

on JOEL was reclusion perpetua, which is in consonance with Article 63(3) of the Revised Penal Code, which provides: ART. 63. Rules for the application of indivisible penalties. 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: ... 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. (Emphasis supplied) Verily, the imposition by the trial court of the penalty of reclusion perpetua, the lesser penalty, is proper. The award of Fifty Thousand Pesos (P50,000) as indemnity is likewise proper, since it conforms with current jurisprudence.lxxvi[18] WHEREFORE, in view of the foregoing, judgment is hereby rendered AFFIRMING in toto the challenged decision of 2 May 1997 of the Regional Trial Court, Branch 30, in Basey, Samar, finding accused-appellant JOEL SOLAYAO guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code, as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of the deceased the amount of Fifty Thousand Pesos (P50,000) as death indemnity. Costs de oficio. SO ORDERED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur. SUPREME COURT
Manila

THIRD DIVISION

G.R. Nos. 96123-24 March 8, 1993 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO MANALO Y CABISUELAS, accused-appellant. The Solicitor General for plaintiff-appellee.

Cesar D. Cabral for accused-appellant.

MELO, J.: Accused-appellant Rodolfo Manalo prays for the reversal of the judgment of the Regional Trial Court of the Fourth Judicial Region (Branch 31, City of San Pablo) in Criminal Cases No. 2740-SP and 2741-SP, which pronounced him guilty beyond reasonable doubt of two separate counts of Murder and sentenced him in each case to suffer the penalty of reclusion perpetua and to separately indemnify the heirs of the two victims in the sum of P30,000.00, to pay P5,215.40 as actual damages to Marcelo Bonilla, the father and father-in-law, respectively, of the victims Warlito Bonilla and Carlito Diomampo, and to pay the costs of suit (p. 116, Rollo). On March 9, 1982, two separate amended informations were filed by San Pablo Assistant City Fiscal Lourdes M. Escondo charging accused-appellant with the crime of Murder committed as follows:
AMENDED INFORMATION That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot one WARLITO BONILLA with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with which the accused was then conveniently provided, thereby inflicting mortal wound upon the person of said Warlito Bonilla which caused his immediate death. CONTRARY TO LAW AMENDED INFORMATION That on or about November 29, 1981, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above named, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot one CARLITO DIOMAMPO with an unlicensed pistolized Colt Caliber .45, with Serial No. 362134, with which the accused was then conveniently provided, thereby inflicting mortal wound upon the person of said Carlito Diomampo which caused his immediate death. CONTRARY TO LAW. (pp. 38-39, Rollo)

When arraigned, accused-appellant entered a plea of not guilty to both charges and after trial on the merits, the trial court handed down its verdict in this wise.
WHEREFORE, in view of the foregoing facts and circumstances, this court, after a careful study of the evidence adduced in each of the two above-entitled cases, hereby finds the accused herein, RODOLFO MANALO Y CABISUELAS, guilty beyond reasonable doubt of the crime of MURDER in each of the two above-entitled cases,

committed in relation to a violation of Presidential Decree No. 1728 and, in accordance with provisions both of the Revised Penal Code and of Article III, Section 19(l) of the 1987 Constitution of the Republic of the Philippines, hereby sentences him to suffer the penalty of imprisonment, consisting of RECLUSION PERPETUA, in each of the two above-entitled cases with all accessory penalties in connection therewith, which shall be served by him in accordance with law, and hereby orders him to indemnify the heirs of the deceased victim Carlito Diomampo in the amount of Thirty Thousand Pesos (P30,000.00), Philippine Currency, as well as the heirs of the deceased victim Warlito Bonilla in a similar amount and to pay the amount of Five Thousand Two Hundred Fifteen Pesos and Forty Centavos (P5,215.40), Philippine Currency, as actual damages, to Marcelo Bonilla, the father and father-in-law of the deceased victims Warlito Bonilla and Carlito Diomampo, respectively, without subsidiary imprisonment, however, in case of insolvency; and to pay the costs of suit in each of the two above-entitled cases. The period of preventive imprisonment undergone by the accused shall be credited in the service of his sentence in accordance with Article 29 of the Revised Penal Code as amended by Republic Act No. 6127. SO ORDERED. (p. 116, Rollo)

Accused-appellant urges reversal upon the following assigned errors:

I The trial court erred in giving undue weight and credence to the uncorroborated, unreliable and unbelievable testimony of prosecution witness Carlos Lacbay which was belied by no less than another prosecution witness Dr. Francisco Perez, an unbiased and very credible witness. II The trial court erred in overlooking a vital fact that there is no physical evidence that appellant fired a gun. III The trial court erred in convicting accused-appellant. (p. 6, Appellant's Brief, ff. p. 141, Rollo)

The People's version is summarized by the Solicitor General, thus:

At about 5:00 p.m. of November 29, 1981, witness Carlos Lacbay, a forty-eight year old sales agent of TL Marketing Corporation and a resident of Barangay San Rafael, San Pablo City, visited Carlito Diomampo at the latter's house at Villa Antonio Subdivision, San Pablo City . . . They partook of some wine and camote and conversed about the motorcycle which Diomampo was interested in buying [and after] about two (2) hours, Lacbay decided to leave. Diomampo and his brother-in-law, Warlito Bonilla, offered to accompany him home. Thereupon, Lacbay rode on and drove his office service motorcycle while Diomampo and Bonilla rode in tandem on their own motorcycle with Diomampo driving it. (tsn, July 27, 1982, pp. 3-8). Upon their arrival at Barangay San Rafael, San Pablo City, at about 7 p.m., Lacbay parked his motorcycle in front of the Barleta Engineering Rebuilder Shop and unloaded

the camote he brought along with him. Diomampo and Bonilla likewise parked their own motorcycle in front of the said shop. While they were thus parking, appellant Rodolfo Manalo, Lacbay's neighbor and co-resident of the same barangay and also an acquaintance of Diomampo and Bonilla, arrived and invited Diomampo and Bonilla to his house for a drink of wine to which the two (2) acceded after insisting that Lacbay would go, as he did, with them. (Ibid., pp. 8-13) From Barleta Engineering Rebuilder Shop along the highway, they walked along a pathway to the house of appellant in the following order, namely: Diomampo and Bonilla were ahead, followed by appellant who was, in turn, followed by Lacbay at about one (1) step behind, passing one (1) house before reaching appellant's house. (Ibid). After Diomampo and Bonilla entered the house of appellant and were about to reach the interior portion thereof, appellant, who was then at the doorway followed behind by Lacbay, suddenly and without any warning shot Diomampo once on the head and then Bonilla also once on the temple at a distance of about three (3) meters from behind, with a .45 caliber pistol with a magazine. Diomampo and Bonilla fell down to the floor dead. Thereafter, appellant again fired one more [shot] at Diomampo. Lacbay who was standing a meter behind appellant, was so shocked that he was unable to move. Appellant told him that he shot Diomampo and Bonilla because Diomampo had impregnated his daughter, Dina Manalo. Thereafter, appellant asked Lacbay to dig but the latter refused. Thereupon, appellant warned him not to leave the place as he (appellant) would look for somebody to do the digging, then left. (Ibid., pp. 17-19). After appellant left him, Lacbay walked toward the place where his motorcycle and Diomampo's motorcycle were parked. As he neared the said place, he saw appellant with Edelito Batralo, another neighbor, returning. Lacbay surreptitiously pushed his motorcycle away without starting its engine and rushed home. (Ibid., pp. 20-22). The medico-legal examination conducted by Dr. Francisco Perez, City Health Officer of San Pablo City, an the bodies of Diomampo and Bonilla which were dug from a shallow pit under the "banggerahan" of appellant's house on December 1, 1981 revealed that both deceased sustained gunshot wounds caused by a .45 caliber gun, described as follows: Diomampo a gunshot wound, 1 cm. in diameter, circular in shape, with smudge and located on the upper eyelid, directed posteriorly, piercing the brain through the orbital fossa, fracturing the occipital bone of the skull, with the slug embedded under the skin with pieces of bone fragments; as well as a closed, depressed comminuted fracture of the maxilla on the left side of the face (Exhibit "B"); Bonilla a gunshot wound, 0.9 cm. in diameter, located on the right tempo-parietal region, directed obliquely and posteriorly towards the left, piercing the brain, fracturing the occipito-parietal region, skull, left, with the slug embedded under the skin (Exhibit "F"). Both slugs were extracted by Dr. Perez and were determined to be as those fired from a .45 caliber gun. The proximate cause of death of each of two (2) victims was due to shock and hemorrhage secondary to the gunshot wound. (tsn, May 2, 1983, pp. 11-18, 30). (pp. 3-8, Appellee's Brief, ff. 153, Rollo).

On the other hand, the defense maintains that accused-appellant is not responsible for the treacherous acts, but that rather, he is just an unwilling witness to the horrible event perpetrated by persons unknown to him. Accused-appellant asseverates that on that fateful day, after attending a meeting at the Iglesia ni Cristo chapel, he went home and saw two unknown men in front of his house. One of them asked him if he was Ma Rody and accused-appellant answered in the affirmative. The two then requested permission to stay for a while to wait for somebody. A few moments later, prosecution witness

Carlos Lacbay together with Carlito Diomampo and Warlito Bonilla, arrived on board two motorcycles. Carlito and Warlito approached appellant and the two unknown persons as Lacbay left saying "You two, stay there and I will bring this motorcycle home." Carlito, upon seeing the two unknown persons, sort of greeted them saying, "Boss", to which one of the two unknown persons retorted, "Boss Ka ng Boss, busisi Ka namang putang-ina mo", at the same time striking Carlito's face. After Carlito fell on his back the man who struck him drew a gun from his waist and shot Carlito. Warlito rushed to Carlito but he was blocked by the other unknown man who boxed him on the face. Warlito fell and while in the act of rising and "trying to draw something from his waist", he was shot on the face by the other unknown man. Afterwards, the two unknown men asked accused-appellant whether he had a spade, and answering in the negative, he was ordered to look for one. When accused-appellant returned with a spade, the two men inquired where they could dig and accused-appellant pointed to a place under his "banggerahan". The two men started digging but not before telling accused-appellant to keep watch as somebody might arrive. About an hour later, the two men dumped the dead bodies of Carlito and Warlito into the hole they dug. They then brought accusedappellant towards the highway and told him not tell anyone about the incidents, otherwise his life and those of his children will be in jeopardy. (pp. 11-12, Appellant's Brief, ff. p. 141, Rollo.) We have examined with care the evidentiary record and We find that the same supports the judgment of the trial court. Under his first assigned error, accused-appellant tries to make capital out of the discrepancy between Lacbay's testimony and the necropsy report and testimony of the City Health Officer concerning the distance and the manner in which the victims were shot. Lacbay stated that accused-appellant was more or less three meters away from the victims when he fired at them from behind. Dr. Francisco Perez, on the other hand, testified that the assailant could not have been farther than eighteen inches owing to the gunpowder smudge found on the wound of Carlito Diomampo. Dr. Perez also claimed that the victims sustained frontal gunshot wounds indicating that they were shot while facing their assailant. Accused-appellant is clutching at reeds. The variance in the distance from which the victims were shot is insignificant and does not take into account that even as Lacbay said that accused-appellant was 3 meters away from his victims when he fired, the distance would be considerably lessened because of the arm extension when he fired. Then too, the relative positions of accused-appellant and the victims need not necessarily be directly contradictory, one following the others according to Lacbay, and the victims facing accused-appellant according to accused-appellant using the statement of Dr. Perez that the victims sustained frontal gunshot wounds. It could very well have been that the dramatis personae were following each other, but that as accused-appellant shot Diomampo and Bonilla, they turned towards or had their faces turned towards accused-appellant. This could very well have been the case especially

in regard to Bonilla the second victim, for his natural reaction after accused-appellant fired the first time at Bonilla was to look at the direction from which the shot was fired. In any event, Lacbay's emphatic and positive identification of accused-appellant as the gunman deserves full merit and weight despite any supposed inconsistency (People vs. Mesias, 199 SCRA 20 [1991]). Verily, establishing the identity of the malefactor through the testimony of witnesses, is the heart and cause of the prosecution. All other matters, albeit of considerable weight and importance, generally assume lesser consequence, and in this regard, the identification by Lacbay of accused-appellant as the gunman is positive and unshakeable. The second assigned error would stress the alleged absence of physical evidence showing that accused-appellant fired a gun. To this, We need only remark that such circumstance neither proves his innocence as well. In fact, even if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test (People vs. Talingdan, 191 SCRA 333 [1990]; People v. Roallos, 113 SCRA 584 [1982]). The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol (People vs. Rebullar, 188 SCRA 838 [1990]). In answer to accused-appellant's last assigned error, which really is only a conclusion on his part, We find the observations of the trial court persuasive and well-taken, portions of which are worth quoting, thus:
CARLOS LACBAY, who is the principal witness for the prosecution, has positively identified in court the accused herein as the sole perpetrator of the killing of Carlito Diomampo and Warlito Bonilla. He had vividly testified in court on the time, the place and the manner how said killings were perpetrated by the accused . . . . . . Lacbay, being a neighbor of the accused, can never be said to be a prejudiced or biased witness. The accused himself testified that he does not know of any reason why Carlos Lacbay testified against him inasmuch as, prior thereto, he never had any misunderstanding with him whatsoever. While it might be contended that there was a little delay on the part of Carlos Lacbay in reporting the aforestated killings to the police authorities concerned . . . he sufficiently explained this by stating that because he was shocked, confused, and fearful . . . he had to wait and consult his "bilas" who was then a member of the Philippine Marines. xxx xxx xxx . . . the accused executed an extrajudicial statement . . . (Exh. "I-17") wherein he admitted the killings but sought to justify his acts by alleging that one of the victims Carlito Diomampo tried to abuse his daughter. On direct testimony, however, . . . the accused testified that he did not shoot the victims but there were two unidentified men who came to his place and were the ones responsible for the killings. The accused has, thus, adopted two postures which are irreconcilable. The accused, when he made a complete turnabout from his earlier statement given to the police, renders himself totally incredible considering that his inconsistency was on a very material point which is actually the heart

of the case. The accused, by his own acts, rendered himself unworthy of credit and belief. xxx xxx xxx In the several letters (Exhs. "JJ" and "KK") sent by the accused to Mr. Marcelo Bonilla, the accused has repeatedly begged Mr. Bonilla to agree to the amount of P14,000.00 which he was offering as a settlement for the death of the two victims. xxx xxx xxx The accused, in his letter to Asst. City Fiscal Escondo . . . requested said Asst. Fiscal not to charge him for Murder but only for Homicide because according to him, he did not have any intention to kill the victims but was prompted to do so only because of circumstances beyond his control. xxx xxx xxx In one of the letters of the accused to Mr. Bonilla . . . he is asking for forgiveness for the offenses he had committed. Again, We submit that when a person asks for forgiveness, then he is admitting that he has committed something wrong . . . (pp. 104-105; 107; 109110, Rollo)

Finally, one cannot but express wonder, if not bewilderment at the tale under which accused-appellant seeks shelter. He presents the story of two persons, conveniently unknown to him and unseen by any other, doing the slaying. The story is not even believable fiction. For who are the assailants who would, while waiting for their victims, station themselves in front of the house not of the victims but of one whom they were not even sure would at that precise moment be visited by the victims. And these killers would then ask the homeowner (accused-appellant) if he is Ma Rody thereby not even attempting to hide their identities but on the contrary, impressing into the memory of a witness their faces. Further, they would, after killing the victims in front of accusedappellant, tarry around, ask accused-appellant to obtain a shovel, dig at a place under accused-appellant's "banggerahan" which accused-appellant inexplicably offered. Surely, these are not the acts of assassins, who, strangers as they are in the place, would naturally seek protection under that very same anonymity, and not allow time for other persons to recognize them and later identify them. The story of accusedappellant is nothing but an unbelievable concoction. In view of overwhelming evidence supporting the trial court's judgment of conviction, We cannot reverse the same. However, the civil indemnity should be increased to P50,000, conformably with current jurisprudence. WHEREFORE, except for the slight modification whereby the civil indemnity to be paid by accused-appellant to each set of heirs of the two victims is increased to Fifty Thousand Pesos (P50,000.00), the decision under review is hereby AFFIRMED. SO ORDERED.

Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur. Gutierrez, Jr., J., is on leave. G.R. No. 109775 November 14, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE ENCARNACION MALIMIT alias "MANOLO", accused-appellant.

FRANCISCO, J.: Appellant Jose Encarnacion Malimit, charged with 1 and convicted of the special complex crime of robbery with homicide, 2 was meted by the trial court 3 the penalty of reclusion perpetua. He was also ordered to indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00) without subsidiary imprisonment in case of insolvency, and to pay the cost. 4 In this appeal, appellant asks for his acquittal alleging that the trial court committed the following errors, to wit:
I THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSED-APPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY REVEALED THEIR ALLEGED "KNOWLEDGE" OF TH6E CRIME MORE THAN FIVE MONTHS AFTER THE INCIDENT. II THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE 5 DOUBT.

The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by the evidence on record:

On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store. Malaki's houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14). Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately one hundred and fifty (150) meters distant from Malaki's store (Ibid., p. 24). Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14), while his boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering between life and death) (Ibid.). Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose Malimit (or "Manolo") rushing out through the front door of Malaki's store with a blood-stained bolo (TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp ("petromax") inside the store, Rondon clearly recognized Malimit (Ibid., p. 22). Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June 9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki. Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was opened and ransacked and the wallet of 6 Malaki was missing from his pocket (Ibid., pp. 16-17).

In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio Rondon and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the incident. He posits that while the crime took place on April 15, 1991, it was only on September 17, 1991 when these witnesses tagged him as the culprit. We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin implicated the appellant to this gruesome crime only on September 17, 1991. The aforementioned date however, was merely the date 7 when Rondon and Batin executed their respective affidavits, 8 narrating that they saw the appellant on the night of April 15, 1991 carrying a bolo stained with blood and rushing out of Malaki's store. As to appellant's claim of delay, suffice it to state that extant from the records are ample testimonial evidence negating appellant's protestation, to wit: (1) after having discovered the commission of the crime, Rondon and Batin immediately looked for Eutiquio Beloy, Malaki's brother-in-law, and informed him that appellant was the only person they saw running away from the crime scene; 9 (2) Beloy and Batin reported the crime with the CAFGU detachment in their barangay where Batin declared that it was appellant who robbed Malaki on that fateful night; 10 and (3) Batin again made a similar statement later at the Silago Police Station. 11

Next, appellant derided the non-presentation by the prosecution of the police blotter which could prove if appellant was indeed implicated right away by Batin to the crime. 12 We do not believe, however, that it was necessary for the prosecution to present as evidence a copy of the aforementioned police blotter. Neither was its non-presentation in court fatal to the prosecution's case. Entries in the police blotter are merely corroborative evidence of the uncontroverted testimony of Batin that he identified the appellant as the perpetrator of the crime before the Silago police. As such, its presentation as evidence is not indispensable. 13 Besides, if appellant believed that he was not identified therein, then he should have secured a copy thereof from the Silago Police Station and utilized the same as controverting evidence to impeach Batin's credibility as witness. 14 Having failed to do so, appellant cannot now pass the blame on the prosecution for something which appellant himself should have done. Even assuming arguendo that Rondon and Batin identified the appellant only on September 15, 1991, or after the lapse of five months from commission of the crime, this fact alone does not render their testimony less credible. The non-disclosure by the witness to the police officers of appellant's identity immediately after the occurrence of the crime is not entirely against human experience. 15 In fact the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case, 16 is of judicial notice. 17 At any rate, the consistent teaching of our jurisprudence is that the findings of the trial court with regard to the credibility of witnesses are given weight and the highest degree of respect by the appellate court. 18 This is the established rule of evidence, as the matter of assigning values to the testimony of witnesses is a function best performed by the trial court which can weigh said testimony in the light of the witness" demeanor, conduct and attitude at the trial. 19 And although the rule admits of certain exceptions, namely: (1) when patent inconsistencies in the statements of witnesses are ignored by the trial court, or (2) when the conclusions arrived at are clearly unsupported by the evidence, 20 we found none in this case. In his second assignment of error, appellant asseverates that the admission as evidence of Malaki's wallet 21 together with its contents, viz., (1) Malaki's residence certificate; 22 (2) his identification card; 23 and (3) bunch of keys, 24 violates his right against self-incrimination. 25 Likewise, appellant sought for their exclusion because during the custodial investigation, wherein he pointed to the investigating policemen the place where he hid Malaki's wallet, he was not informed of his constitutional rights. We are not persuaded. The right against self-incrimination guaranteed under our fundamental law finds no application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United States, 26 ". . . is a prohibition of the use of physical or moral compulsion, to extort communications from him . . ." It is simply a prohibition against legal process to extract from the [accused]'s own lips, against his will, admission of his guilt. 27 It does not apply to the instant case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Wigmore, discussing the question now before us in his treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles a clear reduction ad absurdum. In other words, it is not merely 28 compulsion that is the kernel of the privilege, . . . but testimonial compulsion

Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the provision of the Constitution under Article III, Section 12, viz:
(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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible in evidence against him. (Emphasis ours.) xxx xxx xxx

These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However, infractions thereof render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence, provided they are relevant to the issue and is not otherwise excluded by law or rules, 29 is not affected even if obtained or taken in the course of custodial investigation. Concededly, appellant was not informed of his right to remain silent and to have his own counsel by the investigating policemen during the custodial investigation. Neither did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's wallet, identification card, residence certificate and keys for the purpose of establishing other facts relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very wallet taken from Malaki on the night of the robbery. The identification card, residence certificate and keys found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to Malaki. Furthermore, even assuming arguendo that these pieces of evidence are inadmissible, the same will not detract from appellant's culpability considering the existence of other evidence and circumstances establishing appellant's identity and guilt as perpetrator of the crime charged. We, now come to appellant's third assignment of error where he demurs on the prosecution's evidence, contending that they are insufficient to sustain his conviction. Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a verdict of conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion

pinpointing the accused, to the exclusion of all the others, as the perpetrator of the crime. 30 In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz., (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. 31 In this case, there were at least five (5) circumstances constituting an unbroken chain of events which by their "concordant combination and cumulative effect", satisfy the requirements for the conviction of the appellant, 32 specifically: (1) appellant was seen by Rondon and Batin, whose credibilities were untarnished, holding a bolo in his right hand and rushing out of Malaki's store seconds prior to their discovery of the crime; 33 (2) Malaki sustained multiple stab wounds 34 and he died of "cardiac arrest, secondary to severe external hemorrhage due to multiple stab wounds", 35 (3) witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some policemen, retrieve Malaki's wallet underneath a stone at the seashore in Barangay Hingatungan; 36 (4) appellant himself admitted in his testimony that on August 6, 1991, he accompanied several policemen to the seashore where he hid Malaki's wallet; 37 and (5) appellant's flight and his subsequent disappearance from Hingatungan immediately after the incident. 38 On the other hand, appellant's version of the story does not inspire belief. He maintains that on that fateful night he was in his house together with his wife. He claims that they had just arrived from a gambling spree allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the defense did not bother to call appellant's wife to the witness stand to corroborate appellant's alibi. Neither did it present as witness Maui Petalcorin, or any other person who may have seen the appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of alibi is weak in view of the positive identification of the appellant by the prosecution witnesses, 39 it becomes weaker because of the unexplained failure of the defense to present any corroboration. 40 Furthermore, proof that appellant was in his house when the crime was committed is not enough. Appellant must likewise demonstrate that he could not have been physically present at the place of the crime or in its vicinity, at the time of its commission. 41 In this case, appellant himself admitted that his house was just about eighty (80) meters away from the house of Malaki. 42 It was, therefore, not impossible for him to have been physically present at the place of the commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him at the trial. Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along the seashore, and that he feared being implicated in the crime for which reason he hid the wallet underneath a stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why appellant should fear being implicated in the crime if indeed he merely found Malaki's wallet by chance. No inference can be drawn from appellant's purported apprehension other than the logical conclusion that appellant had knowledge of the crime. Besides, proof that appellant is in possession of a stolen property gives rise to a valid presumption that he stole the same. 43

In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly convicted by the trial court of the special complex crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur. G.R. No. 101584. April 7, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCIANO JUMAMOY Y AORA, alias "JUNIOR", accused-appellant. The Solicitor General for plaintiff-appellee. Eladio M. Jala for accused appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS OF THE TRIAL COURT, ENTITLED TO GREAT RESPECT. The issue of credibility is to be resolved primarily by the trial court because it is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial. Thus, its findings on the matter of the credibility of witnesses are entitled to the highest respect and will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which would have affected the result of the case. 2. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE BOLSTERS CREDIBILITY. In the absence of evidence manifesting any ill motive on the part of the witnesses for the prosecution, it logically follows that no such improper motive could have existed and that, corollarily, their testimonies are worthy of full faith and credit. Indeed, if an accused had nothing to do with the crime, it is against the natural order of events and of human nature and against the presumption of good faith that a prosecution witness would falsely testify against the former. 3. ID.; CRIMINAL PROCEDURE; PRESENTATION OF WITNESSES FOR THE STATE, PREROGATIVE OF THE PROSECUTION. The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution.

4. ID.; EVIDENCE; NON-PRESENTATION OF CORROBORATIVE WITNESSES DOES NOT CONSTITUTE SUPPRESSION OF EVIDENCE. The non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. 5. ID.; ID.; CASES WHERE ADVERSE PRESUMPTION FROM NON-SUPPRESSION OF EVIDENCE NOT APPLICABLE. The adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not wilful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. 6. ID.; ID.; CREDIBILITY; NOT AFFECTED BY MINOR INCONSISTENCIES. Discrepancies on minor matters do not impair the essential integrity of the prosecution's evidence as a whole or detract from the witnesses' honesty. These inconsistencies, which may be caused by the natural fickleness of memory, even tend to strengthen rather than weaken the credibility of prosecution witnesses because they erase any suspicion of rehearsed testimony. What is important is that the testimonies agree on the essential facts and that the respective versions corroborate and substantially coincide with each other to make a consistent and coherent whole. 7. ID.; CRIMINAL PROCEDURE; REQUISITE FOR CONVICTION; PRODUCTION OF WEAPON USED, NOT A CONDITION SINE QUA NON. For conviction to lie, it is enough that the prosecution establishes by proof beyond reasonable doubt that a crime was committed and that the accused is the author thereof. The production of the weapon used in the commission of the crime is not a condition sine qua non for the discharge of such a burden for the weapon may not have been recovered at all from the assailant. 8. ID.; EVIDENCE; CREDIBILITY; ALIBI; CANNOT PREVAIL POSITIVE IDENTIFICATION. The defense of alibi cannot prevail over the positive identification of the accused. 9. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; MEANS, METHODS OR FORM EMPLOYED WHICH DIRECTLY AND SPECIALLY INSURED ITS COMMISSION; CASE AT BAR. The killing was indeed attended by the qualifying circumstance of treachery, which is duly alleged in the information. The mode, manner and means of attack adopted by the accused insured the accomplishment of his purpose, i.e., the killing of the victim without giving the latter any opportunity to defend himself or resist the attack. The firing of the gun at the victim was so sudden and unexpected that the latter, who was unarmed, was caught totally unprepared to defend himself or retaliate. There is treachery when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; MAY NOT BE INVOKED WHEN OFFENSES PUNISHED BY DIFFERENT LAWS; CASE AT BAR. The killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is punished by a special law while the second Murder or Homicide is punished by the Revised Penal Code. 11. CRIMINAL LAW; PENALTIES; RECLUSION PERPETUA NOT THE SAME AS LIFE IMPRISONMENT. The words "or life imprisonment" following "reclusion perpetua" in the dispositive portion of the decision should be deleted, for the latter is not the same as life imprisonment. 12. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH RAISED TO P50,000.00. In line with the prevailing jurisprudence, the indemnity awarded by the trial court should be increased from P30,000.00 to P50,000.00. DECISION DAVIDE, JR., J p: Two (2) separate informations for "Murder" and "Qualified Illegal Possession of Firearm and Ammunitions (sic)" were filed by the Office of the Provincial Fiscal of Bohol with the Regional Trial Court (RTC) of Tagbilaran City against accused Luciano Jumamoy y Aora, alias Junior; they were docketed as Criminal Case No. 5064 and Criminal Case No. 5065, respectively, and were raffled off to Branch 3 thereof. The information for Murder reads: "That on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused without justifiable cause or motive, with intent to kill, and with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault, and shoot with the use of an unlicensed firearm one Rolando Miel without giving opportunity to the latter to prepare for his defense, thereby inflicting upon the vital parts of the body of the latter, serious physical injuries which caused his instantaneous death; to the damage and prejudice of the heirs of the deceased. Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, with the aggravating circumstance of nighttime being purposely sought for or taken advantage of by the accused to facilitate the commission of the crime. City of Tagbilaran, August 14, 1987." 1 while that for Qualified Illegal Possession of Firearm and Ammunitions (sic) relates:

"That, on or about the 1st day of April, 1987, in barangay Poblacion, municipality of Inabanga, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to possess a firearm with ammunitions (sic), did then and there willfully, unlawfully and criminally keep, carry and have in his possession, custody and control a (sic) gun still of unknown make and caliber, and at least three (3) rounds of live ammunitions (sic), without first obtaining the necessary permit or license to possess the said firearm and ammunitions (sic) or permit to carry the same from competent authorities, and which firearm was used by the said accused in committing the crime of murder wherein the victim was one Rolando Miel; to the damage and prejudice of the Republic of the Philippines. Acts committed contrary to the provisions of Sec. 878 and 887 of the Administrative Code in relation to Sec. 2692, of the same Code as amended by Republic Act No. 4 and as further amended by PD No. 1866. City of Tagbilaran, August 14, 1987." 2 No bond was recommended in both cases for the temporary liberty of the accused. Upon his arraignment on 10 December 1987, the accused entered a plea of not guilty in each case. 3 Upon motion of the prosecution, the two (2) cases were consolidated and jointly heard. The prosecution presented Dr. Hector Enriquez, Bonifacio Ayag, Lino Gudes, Jr., Artemio Panganiban, Jr. (Supervising Ballistician, NBI, Region VII), Alfredo Alforque, Sgt. Misericordio Sapong, Rodrigo Aparicio, Pfc. Segundo Requirme and Felisa Miel as witnesses for its evidence in chief, and Leandro Tirol and Luisito dela Torre for purposes of rebuttal. On the other hand, the defense presented the accused, Manuelito Cajes and Ramon Micutuan as its witnesses for its evidence in chief, and the accused himself in surrebuttal. After trial, the court a quo promulgated on 18 July 1991 its judgment, dated 27 June 1991, 4 finding the accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion of the decision reads: "WHEREFORE, in view of the foregoing premises, this Court finds accused Luciano Jumamoy y Aora, alias Junior, guilty beyond reasonable doubt for (sic) the crimes of Murder and Qualified Illegal Possession of Firearm and Ammunitions (sic) in the foregoing Criminal Cases Nos. 5064 and 5065 and, consequently hereby imposes upon him the penalty of reclusion perpetua or life imprisonment in each of the aforesaid criminal cases. He is further ordered to indemnify the heirs of the deceased Rolando Miel by way of actual civil indemnity in the amount of P7,800 (Exhibit C-1) and, further, the amount of P30,000 by way of moral damages. Without pronouncement as to costs.

BE IT SO ORDERED." 5 The evidence for the prosecution, upon which the trial court based its decision, is summarized in the People's Brief as follows: "Appellant Luciano Jumamoy and the victim Rolando Miel were once friends and belonged to the same 'barkada' until sometime in 1970 when the former was stabbed by the latter on his left forearm. As a result, appellant's left arm was deformed, despite medical attendance, because the main vein of his left arm was severely cut. Since then the two had not met each other, as the victim avoided appellant (sic) (p. 2, tsn, April 3, 1989). In the evening of April 1, 1987, the victim and his younger brother Edgar, together with three other companions, went to the Cultural Center of Inabanga, Bohol, where a 'disco' dance was being held in connection with the commencement exercises of St. Paul Academy. However, upon reaching the premises of the Center, the victim's brother and a companion stayed behind and sat on a concrete bench, as the victim and their other companions proceeded (p. 2, tsn, Nov. 11, 1988; p. 4, tsn, June 26, 1990). Upon reaching the Center, the victim and his companions joined three other members of their 'barkada' watching the disco outside. The victim and three of his friends were leaning against a concrete post of the Center conversing and watching the 'disco,' when all of a sudden appellant appeared in front obliquely to the right of the victim and fired three (3) successive shots at the latter, who slumped and fell to the ground (pp. 2-7, tsn, July 6, 1988; pp. 2-5, tsn, Nov. 11, 1988). Thereafter, the people inside and outside the Center scampered for safety (p. 7, tsn, July 6, 1988; p. 5, tsn, Nov. 11, 1988). However, on his way to escape, appellant passed by the victim's brother Edgardo and a companion who were then sitting on a bench about 60 meters away from the Center. When appellant got near the two, the former poked his gun at the victim's brother, and uttered, 'Unsa, laban ka?' ('What now, are you taking sides?'). The two remained silent, as appellant ran behind a house and into the 1-3, tsn, June 26, 1990). EN BANC [G.R. No. 130713. January 20, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. GABRIEL FLORES, AccusedAppellant. DECISION YNARES-SANTIAGO, J.:

On August 11, 1997, the Regional Trial Court, Branch 80 of Morong, Rizal imposed the supreme penalty of death on Gabriel Flores y Ladera and correspondingly ordered him to pay P50,000.00 as moral damages after finding him guilty of raping his stepdaughter, Jennifer Flores.1 The trial court summarized the prosecution and defense evidence in this wise: Culled from the testimonial and documentary evidence adduced by the prosecution, it appears that sometime on April 13, 1996, at about 3:00 A.M., Jennifer Flores, 14 years old girl, was sleeping inside her room of their house located at Sitio Binutas, Barangay San Guillermo, Morong, Rizal. She was awaken (sic) when she felt somebody was touching her breast. When she opened her eyes she saw her step-father Gabriel Flores. Then her step-father ordered her to remove her T-shirt. She undressed because her step-father threatened to kill them. Then he started to kiss her face. She struggled and told her step-father why he was doing it to her. Then Gabriel Flores placed his penis to her vagina until he was able to satisfy his sexual lust. Afterwards, Gabriel Flores told her not to tell to anybody about the incident. After dressing up, Jennifer went to Modesta Llanera who is their neighbor and confided to her about her problem. Then she went home and saw her mother but she did not tell her what happened. It was only when she cannot stomach what her step-father was doing to her that she told her mother about what happened to her on April 13, 1996. When her mother came to know about it, she was very angry at Gabriel Flores. Later, a complaint for rape was filed against Gabriel Flores at Morong, Rizal and he was arrested. Jennifer was accompanied by her mother to Camp Crame, where she was examined and found to have been molested. At the Provincial Capitol in Pasig, there was a confrontation between Jennifer and her step-father where the latter admitted to her mother that he raped Jennifer. Gabriel Flores also gave a letter to her mother admitting what he had done to her. In his defense, accused testified that he is the step-father of Jennifer Flores; that Jennifer lived with him only sometime in 1995 to 1996 because she spent her vacation in Palay-Palay; that Jennifer is a stubborn child and she had many boy friends; that he often advised her about her activities but she was very stubborn; that in March, 1995, he was working in construction and came home only every Saturday night; that he denied raping Jennifer in March, 1995 because he respects his family; that there was a misunderstanding between him and Jennifer regarding the latters having a boyfriend and could be the reason for the case that was filed against him; that he also denied that he raped Jennifer in April 13, 1996; that he remembered that in one occasion he scolded Jennifer for going to her lady friend who is their neighbor; that as regards his commonlaw wife, he had a misunderstanding with her regarding her loan which he did not agree. The trial court, however, was not swayed by the protestations of Gabriel. As adverted to, it found him guilty of rape and correspondingly imposed upon him the death penalty and ordered him to indemnify Jennifer the amount of P50,000.00 as moral damages.2

The court below ruled: x x x (T)here is no doubt that all the elements of rape were established beyond reasonable doubt. It is clear that Jennifer Flores was sexually abused by the accused as shown by the medico-legal report dated April 17, 1996 (Exh. "D") issued by Dr. Jesusa M. Vergara. The victim herself categorically stated that she was sexually abused by the accused and the Court finds her testimony credible as shown by her frank, sincere and straightforward manner of testifying. The victim was in fact in (sic) the verge of crying while narrating the ordeal she suffered from her stepfather. That the accused had carnal knowledge of the victim was admitted by him as shown in his letter (Exh. "E") given to his common-law wife Luzviminda Inquito Flores. The prosecution was also able to prove that the accused was able to consummate the sexual act by means of force and intimidation. This is shown by the following testimony of Jennifer Flores: Q........What happened after Gabriel Flores removed your t-shirt? A........He started kissing me, sir. Q........In what part of your body did he started (sic) kissing you? A........My face, sir. Q........At this point, what did you do while he was kissing you in your face? A........I was struggling, sir. Q........How were you trying to struggle away from him? A........I keep on struggling, sir. (TSN, Nov. 11, 1996, p. 5.) And when the Court asked some clarificatory questions, she answered the following: Q........Why did you follow your stepfather when he asked you to remove your shirt? A........He is (sic) threatening me, your honor. Q........In what way? A........He is (sic) telling me that we will be killed. (TSN, November 18, 1996, p. 18.)

As can be gleaned from the above testimony, both force and intimidation were employed by the accused.3 In this appeal, accused-appellant raises the following assignment of errors: I........THE TRIAL COURT GRAVELY ERRED IN GIVING CREDIT AND PROBATIVE VALUE TO THE LETTER ALLEGEDLY PREPARED BY THE ACCUSED-APPELLANT GABRIEL FLORES. II........THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GABRIEL FLORES GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE DEFINED AND PENALIZED UNDER THE PROVISIONS OF THE REVISED PENAL CODE, AS AMENDED BY REPUBLIC ACT NO. 7659.4 Accused-appellants first contention is without merit. A scrutiny of the trial courts decision belies the allegation that the trial court heavily relied on accused-appellants letter admitting his guilt. On the contrary, it based its decision on the complaining witnesss testimony which it found to be "frank, sincere and straightforward." In rape cases, the accused may be convicted solely on the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things. This is so because by its very nature, rape is committed with the least possibility of being seen by the public. In fact, the presence of eyewitnesses could even raise serious doubts of its commission.5 The court below did not commit reversible error in giving credence to the testimony of Jennifer. In fact, at the time she testified, she was only 14 years old. As observed by the court, she was on the verge of tears when she testified. In addition, her testimony was found to be frank, sincere and straightforward. Besides, it is highly inconceivable on the part of Jennifer to weave such a tale of defloration just to get back at her stepfather who supposedly scolded her for entertaining a boyfriend. Accused-appellants second assignment error is likewise without merit. In essence, it assails the factual findings made by the court below. Suffice it to say that factual findings of trial courts are accorded due respect and weight unless there is grave abuse of discretion or misappreciation of

facts material to the case. This Court finds none of the exceptions to be present in the instant case, perforce, the factual findings of the trial court shall remain undisturbed. It is argued that complaining witness made inconsistent testimonies while on the witness stand. While this may be true, a closer examination of the records would reveal that these inconsistencies pertain only to collateral or minor incidents of the case. Specifically, complaining witness was uncertain as to the number of her companions in the house at the time of the incident and as to who actually removed her t-shirt. While they may be inconsistent statements, they simply do not touch on the real issue before this Court. The fact that complaining witness was raped by accused-appellant in the early morning of April 13, 1996 remains unrebutted. Also, accused-appellant attempted to cast doubt on the credibility of the complaining witness by arguing that with all the opportunity available to her, she could have easily escaped from the clutches of her stepfather. This Court is not persuaded. The doctrine that persons react differently to similar situations is well-entrenched in our jurisprudence. That Jennifer opted to endure her misfortune for a short period of time is her own way of dealing with the situation. Surely, the fact that she did not run away from their home should not be interpreted to mean that she was not telling the truth. In People v. Omar Medina y Lumbero,6 this Court has ruled: Lodalyns failure to immediately report the rape after its initial occurrence does not cast grave doubts on her credibility. Such delay is understandable. It is not uncommon for a young innocent girl to conceal for some time the assaults on her virtue because of the rapists threat on her life, more so when the rapist is living with her. Omar is Lodalyns stepfather and he lived with her. She was in constant fear of Omar who threatened to kill her and her mother. Being the stepfather, Omar also exercised moral ascendancy and influence over her, who is thus expected to yield to his threats and intimidation. In his reply brief, accused-appellant argues that the court below erred in imposing the penalty of death. On this point, this Court agrees. Article 335 of the Revised Penal Code, as amended by R.A. 7659, provides: Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall likewise be death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. 2. When the victim is under the custody of the police or military authorities. 3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. When the victim is a religious or a child below seven (7) years old. 5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. (Emphasis supplied) The information failed to allege the minority of the victim, Jennifer Flores, thus: That, sometime in the month of March, 1995, continuously up to 13th day of April, 1996 in the Municipality of Morong, Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force, threats and intimidation, did, then and there willfully, unlawfully and feloniously have sexual intercourse with JENNIFER FLORES y INGUITO his stepdaughter, without her consent and against her will.7

In People v. Ramos,8 this Court has ruled: While Republic Act No. 7659 did not give a legal designation to the crime of rape attended by any of the seven new circumstances introduced in Article 335 on December 31, 1993, this Court has referred to such crime as qualified rape in a number of its decisions. However, with or without a name for this kind of rape, the concurrence of the minority of the victim and her relationship with the offender give a different character to the rape defined in the first part of Article 335. They raise the imposable penalty upon a person accused of rape from reclusion perpetua to the higher and supreme penalty of death. Such an effect conjointly puts relationship and minority of the offended party into the nature of a special qualifying circumstance. As this qualifying circumstance was not pleaded in the information or in the complaint against appellant, he cannot be convicted of qualified rape because he was not properly informed that he is being accused of qualified rape. x x x As stated, the information failed to allege complainants minority. Nowhere in the information is it stated that complainant was only 14 years old when she was raped. Moreover, the relationship of the victim as the stepdaughter of accused-appellant was not properly proved. Complainants mother and accused-appellant were never married but had been cohabiting only as common-law spouses. No proof was ever presented by the prosecution that complainants mother and accusedappellant were married as to qualify the latter as complainants step-father. Rather, what was shown in the course of the proceedings was that accused-appellant was the common-law spouse of the mother of complainant. Thus, for failure of the prosecution to conjointly allege and prove the qualifying circumstances of minority and relationship, accused-appellant should be held liable only for the crime of simple rape. Consequently, he should be sentenced only to reclusion perpetua. As in People v. Prades,9 this Court additionally awards P50,000.00 as civil indemnity on top of the P50,000.00 award for moral damages. Under the circumstances, the award of P20,000.00 as exemplary damages is proper. In this sense, the prosecutions effort to prove relationship as an aggravating circumstance was not in vain for the same could be used in awarding exemplary damages. Exemplary damages may be awarded in

criminal cases when the crime was committed with one or more aggravating circumstances after proof that the offended party is entitled to moral, temperate or compensatory damages.10 WHEREFORE, the decision finding accused-appellant Gabriel Flores y Ladera guilty of qualified rape and imposing upon him the supreme penalty of death is MODIFIED. Accusedappellant Gabriel Flores y Ladera is instead found GUILTY of simple rape and is sentenced to suffer the penalty of reclusion perpetua and to pay Jennifer Flores y Inguito P50,000.00 as civil indemnity, P50,000.00 as moral damages and P20,000.00 as exemplary damages. SO ORDERED. Davide, Jr., C. J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., concur.2/7/00 1:14 PM G.R. No. L-55436 November 25, 1983 NICASIO BORJE, petitioner, vs. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. Salonga, Ordoez, Yap, Corpuz & Padlan Law Offices and Nicodemo T. Ferrer for petitioner. The Solicitor General for respondents

GUERRERO, J.:+.wph!1 That the constitutional presumption of innocence in favor of the accused has not been satisfactorily overcome by the prosecution evidence in the case at bar where the conviction of petitioner for falsification of public documents was based principally on the mere assumption that as possessor of the falsified documents, he is presumed to be the author of the falsification, is stoutly raised in this appeal by certiorari. Since there is no direct proof showing that accused-appellant, being then the Provincial Plant Industry Officer with many subordinate employees and personnel under him engaged in agricultural field work and assigned in the rural areas like the complainant Rodrigo Ducusin, had personally and actually falsified the public documents in question (Timebook and Payroll, Exhibit "A"; Daily Time Record, Exhibit "B"; and Certification, Exhibit "C") which under normal office procedures pass through numerous hands at several government offices for typing, attestations, funding, accounting, and payment of

the check for P225.00, the legal issue thus raised merits Our careful consideration and resolution, in the face of accused-appellant's vigorous denial. The information filed against the accused-appellant reads as follows: t.hqw
The undersigned Special Prosecutor accuses NICASIO BORJE of the crime of FALSIFICATION OF PUBLIC DOCUMENT committed as follows: That on or about the period from January, February and March, 1977, and sometime thereafter, in the Municipality of San Fernando, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the Provincial Plant Industry Officer of Bureau of Plant Industry, Provincial Office at San Fernando, La Union and in relation by his performance of the duties of his office, taking advantage of his position as such, did then and there willfully, unlawfully and feloniously falsify the Timebook and Payroll of his office for the periods January to March, 1977, Daily Time Record for the same period of Rodrigo Ducusin and Certification for P225.00 by causing it to appear in the said documents that Rodrigo Ducusin have participated in the same and affixed his signatures thereon when in truth and in fact he did not so sign the said documents nor otherwise participated in their execution to the damage and prejudice of the and Rodrigo Ducusin and the Republic. CONTRARY to Article 171 of the Revised Penal Code, in relation to P.D. 1606. Manila, August 31, 1979. (SGD.) FRANCISCO M. TEJANO Special Prosecutor APPROVED: t.hqw (SGD.) VICENTE ERICTA TANODBAYAN

The accused-appellant pleaded not guilty to the crime charged and the trial commenced on August 7, 1980 after the. case was reinvestigated by the Tanodbayan on petition of said accused-appellant, herein petitioner. On October 23, 1980, the respondent court rendered a decision promulgated on October 29, 1980, finding the petitioner guilty as per the dispositive portion thereof, to wit: t.hqw
WHEREFORE, accused is hereby found guilty beyond reasonable doubt as principal for the crane of Falsification of Public Documents as defined and penalized under Article 171, paragraph 2, of the Revised Penal Code, and there being no modifying circumstance to consider, the Court hereby sentences him to an indeterminate imprisonment ranging from two (2) years, four (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum, to pay a fine of P2,500.00 and to pay the costs. SO ORDERED.1wph1.t Manila, Philippines, October 23, 1980.

The decision appealed from recites the evidence for the government as follows: t.hqw
The gist of the evidence of the prosecution, which consist of the testimonies of Ducusin, Edgardo Olivares, 43 years old, married, agronomist and Provincial Plant Officer, Manuel Varquez, 45 years old, married and Regional Director and Remedios Lorenzo, 47 years old, married and Cashier, all of the Bureau of Plant Industry in San Fernando, La Union, shows that Ducusin was employed as Plant Pest Officer with the Bureau of Plant Industry stationed in San Fernando, La Union from February 2, 1975 up to his resignation on April 30, 1978. From February 2, 1975 up to December 1976, he was detailed as production technician in the Program of the Bureau of Plant Industry and the Bureau of Agricultural Extension receiving incentive pay from the National Food and Agricultural Council (NFAC) during said period. In 1977, however, Ducusin was no longer entitled to the NFAC incentive pay as he was detailed to the Surveillance Team of the Bureau of Plant Industry on January 1977 up to April 30, 1978. Before one can receive his NFAC incentive pay, he must prepare his Daily Time Record (CS Form 48) for the month and a certification that he is detailed with the Program. In February 1978, Ducusin was informed by one Roberto Castro that he is supposed to receive NFAC incentive pay because his name is included in the special order enumerating those included in the program. This prompted Ducusin to go to the Accounting Division of the Bureau of Plant Industry, Region I in San Fernando, La Union to verify the information relayed to him by Castro and there he discovered that in the payroll for January, February and March 1977 (Exhibit A) his name and signature appeared. Attached to said payroll were a certification that he was detailed to the Program (Exhibit C) and the corresponding Daily Time Records for said months (Exhibit D) which appeared to have been all signed by him. Actually, however, he did not sign the said payroll, certification and time records nor did he authorize anybody to sign for him. Ducusin referred the aforesaid falsification to the accused in the last week of February 1978 and accused, confessing to him that he got the money, repeatedly offered him Two Hundred Twenty Five (P225.00) Pesos to cover his incentive pay but he remained silent and refused to receive the amount. He finally brought the matter to Regional Director Manuel Varquez who assigned Olivares to investigate the case. But inasmuch as no further action was taken, he brought the case to the attention of the President and the Director of the Bureau of Plant Industry. Ducusin likewise submitted his written resignation to the Regional Director (Exhibit E) on April 28, 1978 because he felt 'utterly' demoralized because of undesirable actuations which he recently discovered ... On May 18, 1978, he received a reply from Regional Director Varquez dated May 15, 1978 (Exhibit F) stating that his aforesaid letter of resignation had been endorsed to the accused and attached therewith was the reply of the latter (Exhibit F-1).

Similarly, the decision condensed the evidence of the defense in the following manner: t.hqw
On the other hand, accused, in brief, claimed that Ducusin was one of those involved in the Program for the months of January, February and March 1977 as shown in Special Order No. 172 of the Bureau of Plant Industry Director Domingo E. Panganiban (Exhibits 6 and 6-A) and actually paid of his incentive pay and that it is not true that he received the payroll (Exhibit A) and the corresponding checks from Remedios Lorenzo for delivery to the persons whose names appear in said payroll. Accused denied that he instigated the filing of two cases of falsification against Ducusin and to bolster said denial accused presented Jacinto Costales, 54 years old, married and Second Assistant Provincial Fiscal of La Union.

In fairness to the accused, We are constrained to include hereunder the more detailed statement of facts submitted by him in his Brief, viz. t.hqw
The Province of La Union undertook as one of its projects the program known as the Gulayan sa Kalusugan and Masagana '99 Program, the implementation of which became a joint program of its Bureau of Plant Industry and its Bureau of Agricultural Extension. Government employees detailed as production technicians in the Gulayan Program received incentive allowances from the NFAC during the covered period. Their detail as production technicians of the said program was effected only by a special order emanating from the Bureau of Plant Industry Door; and before the employee received his incentive pay, he was required to prepare his Daffy Time Record for the particular month and submit a Certification attesting to the fact that he was detailed to the program. In the case-at-bar, complainant Rodrigo Ducusin, an employee of the Bureau of Plant Industry, was detailed to the program from February 2,1975 up to December 1977, his assignment of work being contained in the NFAC Order captioned 'Detail and Designation of Personnel to NFAC, in connection with the Gulayan Program where his name appeared opposite item 60 thereof. (Exhibit 6) Making it appear that he was surprised to learn that he was supposed to receive his NFAC incentive pay for the months of January, February and March 1977 because he was not entitled thereto as he was not anymore connected with the Gulayan Program; and falsely making it appear that some person other than himself received his incentive pay by allegedly forging his signature on the Daily Time Records, the Payroll and the Certification required and submitted complainant Rodrigo Ducusin caused to be filled a complaint against the petitioner, Nicasio Borje, supervising agronomist of the Bureau of Plant Industry, Region I, before the Tanodbayan ...

Accused-appellant contends that complainant Ducusin was paid his incentive pay for the months of January to March, 1977 in the total sum of P225.00 as Ducusin was included in the payroll since he has worked with the Program as shown by Special Order No. 72 issued by the BPI Director and concurrent Executive Director of NFAC, Domingo Panganiban, and that said Special Order, Exhibit 6 entitled "Detail and Designation of BPI Personnel to NFAC in Connection with the Masagana '99 Program effective January to December 1977" and dated May 17, 1977, included the name Rodrigo Ducusin, herein complainant, opposite item No. 60 in page 2 of the Exhibit and marked Exhibit 6-A (TSN, Aug. 27, 1980, pp. 43-46). He confirms substantially the official procedure in the preparation of the payroll and subsequent payment of the incentive pay to the production technicians as described by witness Remedios Lorenzo, disbursing officer and cashier for the BPI office in San Fernando, La Union. However, he vigorously denies having received the payroll and the corresponding checks from witness Lorenzo as his participation in the preparation of the said payroll ended with his signing thereof after which the payroll goes to the disbursing officer for the preparation and issuance of the checks to the payees. The defense also presented in evidence certified true copies of two (2) criminal informations for falsification dated August 13, 1979 filed by Assistant Provincial Fiscal Jacinto Costales against complainant Ducusin before the Court of First Instance of La Union, Branch III, Agoo, docketed as Criminal Cases Nos. A-893 (Exhibit 1) and A-894 (Exhibit 2). The accused contends that the instant case against him was initiated by

Ducusin to get even with the petitioner as the complainant admitted in crossexamination that he believes that Borje instigated said two criminal cases against him (TSN, Aug. 25,1980, pp. 21-27). Further contending that complainant Ducusin was doing dual work from July, 1976 up to December, 1977, the defense presented Exhibits 5 to 5-C which is Memorandum Order No. 56, Series of 1976, dated June 11, 1976, issued by BPI Director Panganiban for the implementation of the Plant Pest and Disease Surveillance and Early Warning Monitoring Project under the Philippine-German Crop Protection Program which shows that complainant Ducusin was included in the list of personnel assigned to the Surveillance and Early Warning System SEWS team as Plant Pest Control Officer. The accused-appellant declared that although Ducusin was named to this SEWS team, he continued working with the Gulayan Program as production technician during said work. The defense disclaims the authenticity of the prosecution's Exhibit H which is purportedly the original Borje reply letter to BPI Regional Director Varquez' endorsement of Ducusin's resignation letter. Instead, Exhibit 8 was presented in evidence as the genuine carbon copy of Borje's signed letter reply dated May 5,1978 in response to Varquez' memorandum of May 3, 1978 wherein petitioner recommended disapproval of Ducusin's resignation in order that Ducusin could face the charges against him in connection with his work with the Gulayan Program. (TSN, Aug. 27,1980, pp. 56- 58,90). The Sandiganbayan in its decision formulated two issues determinative of the innocence or guilt of the accused, to wit: (1) Whether or not the Time Book and Payroll (Exhibit A), the certification (Exhibit C) and the Daily Time Records (Exhibit D) in support of said payroll were falsified, and (2) If they were, the liability of the accused, if any. As indicated earlier, the accused- appellant was found guilty by respondent court. Hence, the instant appeal by way of certiorari. Petitioner submits the following assignment of errors: t.hqw
I. The respondent court erred in holding that the petitioner is guilty of the offense of falsification of public documents, the same not having began established by proof beyond reasonable doubt, considering that: t.hqw A. the originals of the alleged falsified documents were not presented in court and, hence, the corpus delicti has not been established as held in the case of U S. vs. Gregorio B. There is no iota of evidence that the petitioner falsified the complainant's signature on the alleged falsified documents; C. The testimony of complainant's witness, Remedios Lorenzo, was sufficiently impeached by her own conflicting testimony previously given before the Tanodbayan;

D. The respondent court erred in finding as a fact that complainant was not entitled to the NFAC incentive pay, in total disregard to the documentary evidence proving that he was doing dual work, both with the Gulayan Program as wen as the SEWS and therefore, still entitled to the NFAC allowance. II. The respondent court erred in not holding that complainant falsely ascribed the offense to the petitioner, there being proof that complainant was possessed of ill motives against petitioner.

Before resolving the above assigned errors, We find it imperative and compelling to describe and detail the nature and contents of the vital documentary exhibits of the prosecution alleged to have been falsified by the accused-appellant. These are official forms and they are (1) Exhibit A, Timebook and Payroll of accused-appellant's office for the period January to March 1977; (2) Exhibit D, Daily Time Record for the same period of Rodrigo Ducusin; and (3) Exhibit C, Certification that Ducusin was detailed to the Program. As appearing on the face of these exhibits, the act or participation of the petitioner thereon is indicated below: t.hqw
In Exhibit A (Timebook and Payroll), the printed certification below which the signature of petitioner is affixed, reads thus: 2. I certify that this roll is correct; every person whose name appears hereon rendered service for the nine and at the rates stated under my general supervision, and I approve payment of this roll CERTIFIED CORRECT: (SGD.) NICACIO B. BORJE NFAC, Prov'l Chairman In Exhibit D (Daily Time Record, Service Form No. 18), the signature of the accusedappellant appears below the following words: Certified true copy of the original: Verified as to the prescribed office hours. t.hqw

Exhibit C (Certification) indicates no participation whatsoever of appellant Borje. It simply states, thus: CERTIFICATION I hereby certify that the amount of two hundred twenty five pesos (P225.00) herein claimed is only in reimbursement of representation and transportation expenses (excepting trips from home to office and vice-versa) actually incurred by me in the performance of my official duties as Production technician while on detailed with the National Food and Agriculture Council, during the period from Jan. 1977 to March 1977 that I did not use any government vehicle or transportation furnished paid by the government nor did I collect similar transportation and representation expenses from my mother organization Bureau of Plant Industry during the period. Certified true copy of the original: t.hqw

On the face of the above documentary evidence, Exh. "A" and "D", the liability of petitioner as head of the office who had signed the certification and verification printed thereon must be limited to the contents of said verification and certification for which he does not necessarily incur criminal responsibility if the entries, data or statements certified and verified turn out not to be true in which case the employee or personnel making the entries, data or statements as to his services and attendance is solely and separately responsible therefor. In the instant case, since there is the Special Order No. 172 of Executive Director Domingo Panganiban, concurrently BPI Director, marked Exh.

6, "Detail and Designation of BPI personnel to NFAC in connection with the Masagana99 Program effective January to December, 1977" listing complainant for the assignment and detail, the inclusion of Ducusin's name in the payroll was not irregular. Besides, the payroll is prepared by the Budget Office based on the Special Order and not by the petitioner's office. According to complainant Ducusin, he was no longer connected with the Masagana Program during the period of January to March 1977 because his assignment thereto had been terminated. But he was asked this question by the Sandiganbayan, thus: t.hqw
JUSTICE ESCAREAL: t.hqw
Q What evidence do you have that you were removed in 1977 and you were no longer performing your duties as technician? A It is only verbal. (TSN, p. 47, Aug. 25, 1980)

The alleged verbal order is doubtful for under normal and usual official procedure, a written special order issued by a government office is cancelled, amended or modified only by another written special order, not only for purposes of record on file but also to prevent conflict and confusion in government operations. Moreover, under the best evidence rule, Section 2, Rule 130 of the Rules of Court, the supposed verbal order cannot prevail over the written Special Order No. 172 stated above. Respondent Sandiganbayan, however, justified the conviction of the accused on the basis of the testimony of witness Remedios Lorenzo, Regional Disbursing Officer and Cashier, to the effect that she delivered the payroll and checks to petitioner accusedappellant, relying further on the presumption that as possessor of the document, accused-appellant is presumed to have falsified it. But reviewing the testimony of witness Lorenzo, the records disclose that her original testimony at the reinvestigation of the case before the Tanodbayan was favorable to the accused, saying that she delivered the payroll and the checks to the complainant Ducusin, even Identifying the genuine signature of Ducusin on the payroll. We quote hereunder excerpts of her testimony: t.hqw
Prosecutor Ferrer: Q: What is your SOP in the preparation of timebook and payroll, do you have to sign as Regional Disbursing Officer? A: I don't sir. It is only the Budget Officer who prepares the payroll. After the budget officer has prepared it will go to the accounting for funding and after the accounting it will go to my office. Q: All in all how many signatures are to be signed in the payroll for its validity under your standard operation procedure? A: There are four, sir. The provincial officer, the accountant for funding, then the Director and after the signed it, it will go to my office.

xxx xxx xxx xxx xxx xxxt.hqw

Q: Under your standard operating procedure who win sign first the payroll. The payee or the provincial plant officer? A: Provincial plant officer. Q: After the Provincial Plant Officer, the payroll will go to the regional accountant, is that correct? A: Yes, sir. Q: And after the Regional accountant it will go to the Director? A: Yes, sir. Q: And after the Regional Director, it will go to the Disbursing Officer? A Yes, sir. Q: And that will be the time that the payee will receive the amount, is that correct? A: We prepare the check for them. Q: When do the payee affix their signatures in the payroll if you know? A: When I will issue them the check that is the time that they affix their signatures in the payroll. Q: So after that the check will go back to the Provincial Plant Officer? A: It will not go back to the Provincial Plant Officer. Q: After the Provincial Plant Officer has fixed his signature he has no further participation in this payroll? A: No more, sir. Q: Now, Mrs. Lorenzo, you also brought with you . . . . . . . . By the way, who is supposed to sign first this timebook and payroll under your Standard Operation Procedure. Is it the Provincial Plant Officer? A: Yes, sir. Then after that it will go to the office of the Regional Accountant, and after the regional accountant have signed, it will go to the regional director for approval, and from there it win go to my office. Q: You are the same time cashier? A: Yes, sir. My item is Cashier I. Q: So, do you have any participation in this Exhibit "X" by way of issuing the check to corresponding payee in this timebook and payroll? A: In the preparation of the check, sir. Q: Who delivers the check to the payee?

A: After we have prepared the check, they will just go to my office to get the check and that is the nine they will affix their signature. Q: And they sign their names after delivering to them their respective checks? A: Yes, sir. Q: Are you familiar with any of these signatures appearing in this timebook and payroll, particularly that of Mr. Ducusin? PROSECUTOR FERRER: Q: By the way, before you answer that question do you know personally Mr. Rodrigo Ducusin? A: Yes, sir. Q: Why do you know him? A: He is also our employee in the office. He is one of the technicians under M-99. Q: Since when have you known Mr. Rodrigo Ducusin ? A: I could not exactly remember, sir. Because I have come across their names when they got their checks from me. Q: But before January 1977, you have already known him? A: Yes, sir. Q: How long before January 1977 have you been a cashier or Regional Disbursing Officer? A: I was already a cashier since 1976, July 1975. Q: As a cashier since that time, are you f with the signature of Mr. Ducusin? A: I could not remember their signatures because there are plenty of personnel in the Bureau of Plant Industry. Q: Were you the one who issued the check to the complainant? A: Yes, sir. Q: In issuing the checks did you issue them individually to the personnels in the BPI? A: Yes, sir. As soon as we pay the check to anyone, they have to affix their signature first. Q: Where do you deliver the checks to the payees? A: In my office. Q: At San Fernando, La Union? A: Yes, sir.

(TSN December 21, 1979, pp. 5-14, Tanodbayan, Emphasis supplied.)

The contradictory and conflicting testimonies of this witness only proves her unreliability and unworthiness in respect to the sanctity of the witness' oath. Although she tried to explain her complete "turn-about" by saying during the Sandiganbayan hearing: "They told me that if I win testify against them, I will be accessory and I don't want to be involved in the case because I am not the one really who delivered the checks to the production technician, sir." (TSN, p. 18, Aug. 27, 1980), the conclusion of the respondent court that she was intimidated to testify in favor of the accused during the reinvestigation is not warranted, considering that the witness herself is a high regional official, being the Regional Disbursing Officer and Cashier and not subordinate to but perhaps co-equal in rank to the petitioner and, therefore, may not be so easily intimidated by the accused who was in no position or power to include her as accessory in the case. Lorenzo's testimony given at the Sandiganbayan hearing is not worthy of belief and must be rejected. We also reject respondent court's reliance on the presumption that as possessor of the document, the accused is presumed to be the author of the falsification. In the first place, the factual basis which is the Lorenzo testimony which We have reviewed as doubtful and variable, cannot be credited. Petitioner has denied vigorously the testimony of Lorenzo that he received the payroll and the checks from her. He said that his participation in the preparation of the payroll ended with his signing thereof after which the payroll goes to the Disbursing Officer for the preparation and issuance of the checks to the payees at which time the payee affix their signatures on the payroll, which is substantially corroborated by the original testimony of the witness Lorenzo during the reinvestigation of the case before the Tanodbayan. In the second place, Exhibit "A" appears to be also signed by ten (10) other production technicians fisted in the payroll, besides complainant Ducusin. It is initialled by three (3) personnel in the Accounting Services Unit and further signed by the Regional Accountant and for the Regional Director. All of these persons were at one time or another in possession of the document, all of them had the same opportunity impliedly imputed to the accused, The payroll must have been carried and passed by messengers and other employees from one office to another, from one desk to another for purposes of typing, funding, initialling, verification, certification, accounting, recording, drawing of the check and finally, issuing of the check. In Our view, the respondent court's reliance on the presumption which is only presumptive, is misplaced and unwarranted, there being no sufficient reason to apply the same. The defense contends that the prosecution, having presented xerox copies only of the falsified documents, Exhs. "D" and "C", fatted to prove the corpus delicti of the crime charged, citing the case of U.S. vs. Gregorio, 17 Phil. 522. In this case of Gregorio, the Supreme Court held: t.hqw
In a criminal case for the falsification of a document, it is indispensable that the judges and the courts have before them the document alleged to have been simulated, counterfeited or falsified, in order that they may find, pursuant to the evidence produced at the trial, whether or not the crime of falsification was actually committed; in the absence of the original document, it is improper to conclude, with only a copy of the said

original in view, that there has been a falsification of a document which was neither found nor exhibited, because, in such a case, even the existence of such original document may be doubted.

Reacting to the defense contention, the Sandiganbayan held that "(a)ccused's claim that in the absence of the original documents it is improper to conclude that there is falsification of document in accordance with the case of U.S. vs. Gregorio, 17 Phil. 522, is sleazy for the case referred to is not in point," and then attempted to differentiate said case with the case at bar by holding that "(h)ad the issue confronting the Court been one of alteration or superimposition of signatures or word or figure, then the issue of bringing out the original may have relevance. " The Sandiganbayan further added: "At any rate, it is worthwhile to note that with the development of modem copying devices which virtually eliminate the possibility of error in reproduction of the original, the relevancy of the doctrine in U.S. vs. Gregorio is now open to question. We do not agree with the respondent court. Firstly the Gregorio ruling makes no distinction for the doctrine itself applies in criminal proceedings for the falsification of a document, whether simulated, counterfeited, or falsified. Secondly, the Gregorio doctrine is still tenable notwithstanding modern copying devices for a falsified document, passed off as an original can also be duplicated by xeroxing and thereafter, certified as true copy of the original as in Exh. "D". And thirdly, considering that in the case at bar, the xeroxing was done or caused to be done by complainant Ducusin (TSN, pp. 189-191, Aug. 25, 1980) after taking out the original documents without the official authority and permission of the Disbursing Officer and Cashier, Remedios Lorenzo, who was then out on rural service and thereafter the originals were lost, misplaced and are now missing, the failure to present the originals is suspicious for complainant had ulterior and ill motives in accusing the petitioner as will be shown hereunder. The ill motives of the complainant in falsely accusing the accused-appellant is easily discernible herein. There is presented Exhibit " 1 ", certified true copy of the information filed against complainant Rodrigo Ducusin in Criminal Case No. A-893, CFI, Agoo, La Union, for falsification committed on or about July 24, 1975 in relation to the grant of farmer's loan under the Gulayan Sa Kalusugan Food Production Program when complainant was assigned to the Agoo Rural Bank, and a similar information for falsification against Ducusin in Criminal Case No. A-894, Exh. "2". Referring to these two (2) cases, Ducusin declared that petitioner Borje motivated the filing of the cases; that in the filing of the case in the Fiscal's Office in San Fernando, La Union, there is an affidavit of Mr. Nicasio Borje and that because of that affidavit, it was Mr. Borje who motivated the filing of the charge against him. (TSN, pp. 26-27, Aug. 25, 1980). There is also the refusal of the petitioner to recommend acceptance of the resignation of Ducusin until he shall have cleared matters with the Rural Bank of Agoo, La Union considering that the total amount of P52,047.73 is involved. (Exhibit "8"). The rule is established that the absence of evidence as to an improper motive actuating the offended party and the principal prosecution witness tends to sustain the conclusion that no such improper motive existed and that their testimonies are worthy of full faith and credit. (People vs. Amiscua 37 SCRA 813; People vs. Mercado, 38 SCRA 168;

People vs. Valdemoro, 102 SCRA 170). Conversely, where there is showing as to improper motives, as in the case at bar, the testimony of complainant Ducusin is unworthy of faith and credit and, therefore, deserves scant consideration. And since the prosecution theory is built or based on such testimony, the cause of the prosecution collapses or falls with it. According to respondent court, its conclusion that the accused falsified or caused to be falsified the document in question is further supported by the following facts: (1) that the accused confessed to him that he was the one who got the money and offered immediately to Ducusin the sum of P225.00 to cover the incentive pay so that Ducusin will just keep silent but Ducusin did not accept the money; and (2) that in his reply to the letter of Ducusin denouncing the forging of his signature that he received his incentive pay from January to March, 1977, the accused tried to justify the falsification of the time record as shown in the portion of said reply, Exhibit "H". In the light of the ill-motives of the complainant as shown above, this particular assertion of Ducusin which is uncorroborated is sleazy, that is, flimsy, shabby, cheap or unsubstantial. Moreover, petitioner's reply marked Exh. "H" is not an admission of the accused that he falsified or caused to be falsified the documents in question. In fact, examining Exh. "H", it says that "his Ducusin daily time record (was) prepared by other employees in order to justify such payment. The authenticity of Exh. "H" is denied by the petitioner who presented Exh. "8" as the real and correct copy duly received and initialed by the Regional Office, and therein, he wrote: "I therefore deny knowledge of the alleged forgery of the signature of Mr. Ducusin in the same payroll." Finally, the defense puts forth the exemplary and distinguished record of the petitioner as a public servant, having been in the government service for more than twenty (20) years and multi-awarded and commended for meritorious services, among them as scholar under the Colombo Plan specializing in pest management in England; Diploma of Merit as Most Outstanding Employee in Ilocos Sur; Award as one of the Most Outstanding Green Revolutionist in the Philippines, 1976; and Award as one of the Most Outstanding Bureau of Plant Industry Employees, 1978. And citing the case of Manero vs. Court of Appeals, 102 SCRA 817 wherein the Supreme Court said: t.hqw
(T)he petitioner exhibited an exemplary record as a policeman; he was thrice cited by his superiors for refusing to accept a bribe, was commended for minimizing armed robberies, was twice the recipient to Letters of Appreciation and has been recommended for promotion on the basis of known honesty and integrity ...

in sustaining the innocence of the accused, petitioner also prays for his acquittal. The record and services of the accused-appellant is, indeed praiseworthy and commendable. But an accused is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct if the court believes he is guilty beyond reasonable doubt of the crime charged. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution has

discharged its duty of proving his guilt beyond peradventure of doubt, of convincing the court as to the moral certainty of his guilt. Considering that, on the whole, the evidence presented against the accused in the case at bar is not clear, competent and convincing, and considering further that there is jurisprudence which, by analogy, supports the defense in U.S. vs. Balais, 17 Phil. 503 wherein We held: t.hqw
The municipal treasurer who 'certifies that the official payroll he signs is correct, that the services have been rendered and the payments made as stated,' does not pervert the truth in the narration of the facts, if the persons certified as municipal secretary and clerk to the municipal president were duly appointed and qualified as such municipal secretary and clerk to the municipal president, discharging the duties of their respective offices, the services certified having been rendered at the time referred to in the payroll, and both persons having received their respective salaries from the municipal treasurer certifying the payroll. Nor can it be taken as proving the falsification of the document if it is subsequently discovered that the services were really not rendered by the aforementioned persons themselves but by substitutes; for it is not the mission of the municipal treasurer to take upon himself to investigate whether the persons accredited to him as secretary and clerk, by the municipal council and whom he, in turn, acknowledges and pays their monthly salary, really or apparently perform the duties of such offices,

in resume Our review of the case at bar concludes that the prosecution failed in discharging its sworn duty to prove the guilt of the accused beyond reasonable doubt. It has not overcome the constitutional presumption of innocence in favor of the accused. Consequently, accused-appellant must be acquitted. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the Sandiganbayan convicting the accused is hereby REVERSED and SET ASIDE. We find the accused-appellant NOT GUILTY. No costs. Judgment reversed. SO ORDERED.1wph1.t Fernando, CJ., Makasiar, Concepcion Jr., De Castro, Plana, Escolin, Relova and Gutierrez, Jr., JJ., concur. Aquino, Melencio-Herrera, JJ. and Teehankee, J., took no part. Abad Santos, J., I vote to affirm the judgment of conviction for the reasons stated by the Sandiganbayan. G.R. No. 91797 August 7, 1992 WIDOWS & ORPHANS ASSOCIATION, INC., petitioner, vs.

COURT OF APPEALS and ORTIGAS & COMPANY LIMITED PARTNERSHIP, respondents. Quijano & Padilla for petitioner. Jose S. Songco for private respondent. RESOLUTION

FELICIANO, J.: On 27 August 1974, petitioner Widows' and Orphans Association, Inc. ("Widora") instituted Land Registration Case ("LRC") No. Q-336 before Branch 4 of the Court of First Instance of Quezon City (now Branch 83 of the Regional Trial Court, same city). Widora applied for original registration of title over a parcel of land described in Plan LRC (SWO)-15352, alleging that said property is covered by Titulo Propiedad No. 4136 dated 25 April 1984, supposedly issued in the name of one, deceased, Mariano San Pedro y Esteban. 1 In an amended application, Widora stated that the land applied for was situated at Malitlit-Ugong, Quezon City, with an area of 156 hectares. 2 On 13 October 1978, private respondent Ortigas & Co. Limited Partnership, Inc. ("Ortigas") filed an opposition to the application. 3 This pleading was followed by a motion to dismiss dated 23 October 1978. 4 In a supplementary report dated 14 November 1978, the Commissioner of Land Registration informed the trial court that the land sought to be registered was "identically the same" as that covered by Lot 7 of Transfer Certificate of Title ("TCT") No. 77652 and of Lot 8 of TCT No. 77653, both of which were issued and standing in the name of Ortigas. 5 In an order dated 20 April 1979, the trial court set the case for hearing to enable Widora to prove its assertion that TCT Nos. 77652 and 77653 were not derived from the Original Certificates of Title ("OCT") referred to on their faces (i.e., OCT Nos. 19, 336, 337 and 344) and to give Ortigas an opportunity to show the contrary. 6 For nine (9) years, from 1979 until 1988, hearings were held where the parties adduced evidence in support of their respective contentions. 7 In an order dated 30 March 1988, the trial court denied Ortigas' motion to dismiss, holding that its TCT's were apparently not derived from the OCT's mentioned on their faces and did not appear to have been based on an existing original decree of registration. 8

Ortigas' motion for reconsideration having been denied, and the trial court having set the case for hearing on the merits, Ortigas filed a petition for certiorari with prayer for a writ of preliminary injunction with the public respondent Court of Appeals on 10 July 1989. 9 In a decision dated 27 November 1989, the Court of Appeals gave due course to the petition and nullified the trial court's order of 30 March 1988. It held that TCT Nos. 77652 and 77653 were derived from OCT No. 351, which in turn was based on Decree of Registration No. 1425 issued in favor of Ortigas' predecessor-in-interest in 1905, in G.L.R.O. Record No. 917 which had been tried by the Land Registration Court of Manila. The Court of Appeals dismissed LRC No. Q-336 because the land subject thereof was already registered in favor of Ortigas, with the result that the trial court had no jurisdiction over the subject matter of the action. 10 Its motion for reconsideration having been denied, Widora filed the present petition for review with the Court on 22 March 1990. In a decision dated 28 August 1991, the Court's Third Division set aside the decision of the Court of Appeals and reinstated the order of the trial court dated 30 March 1988. The Court's Third Division held that the Court of Appeals erred in making factual findings determinative of Widora's application on the basis of "secondary evidence" offered by Ortigas, in unilaterally correcting entries in the Ortigas Torrens titles and held that the controversy regarding the authenticity of said titles should be resolved in "fullblown" hearings before the trial Court. 11 Hence, the present Motion for Reconsideration filed by Ortigas. Examination of the Court's Decision of 28 August 1991 shows that two (2) considerations led the Court to remand this case to the trial court to hear Widora's application for land registration on the merits. Firstly, the Court was apparently not entirely certain that the land covered by Widora's application was already registered under the Torrens system in Ortigas' name, such that it appeared prudent to conduct a "full-blown" trial on the merits to clear up that matter, considering: (1) Ortigas argued that its ownership of the land which is the subject of Widora's application was confirmed by Decree No. 1425 issued in G.L.R.O. Record No. 917 of the Land Registration Court of Manila in 1905; however, Widora's evidence tended to show that Decree No. 1425 adjudicated to Ortigas only seventeen (17) hectares of land situated in Sta. Ana, Manila, while Widora's application related to one hundred fifty-six (156) hectares of land situated in Quezon City; and (2) it appeared that Ortigas' TCT Nos. 77652 and 77653 carry some erroneous statements on their face relating to "their source or mother Original Certificate of Title (OCT)" lending some credence to Widora's contention that the genuineness of those TCTs was dubious. The second consideration was the feeling that the Court of Appeals should not have resolved these factual uncertainties by using "secondary" evidence offered by Ortigas,

considering the limited nature of certiorari jurisdiction, since Torrens titles are conclusive on their face and any inaccuracies of entries thereon are to be corrected only by the proper land registration court. In the Motion for Reconsideration and in the oral hearing on that Motion, Ortigas invited our attention to the existence of previously decided cases showing that the factual uncertainties we had noted had already been adjudicated by the Court with finality and are now matters of judicial notice. 12 In this Resolution, the Court will address this principal argument of Ortigas as well as the argument concerning the character of evidence submitted by Ortigas before the trial court. I. In holding that the Court of Appeals should not have resolved the factual issues a considering the nature of certiorari jurisdiction, the Court relied on Dioquino v. Intermediate Appellate Court. 13 In Dioquino, this Court rejected the factual findings made by the Court of Appeals in the course of resolving a petition for review filed under Section 22, B.P. Blg. 129, because, inter alia, those factual findings were based on evidence presented ex parte as appendices to a motion for reconsideration from the decision of the trial court. Considering that no evidence had been presented by either party in the principal proceedings, either before the Municipal Circuit Trial Court or before the Regional Trial Court, the Court in Dioquino concluded that the Court of Appeals' power to resolve issues of fact under Section 9, paragraph 2, B.P. Blg. 129, was misapplied because the opposing party had no real opportunity to reject the evidence submitted ex parte by its opponent. 14 Careful examination of the Dioquino case shows that the facts there are so different from those of the present case as to render our holding in Dioquino inapplicable here. Here, the Court of Appeals had conducted hearings on four (4) occasions, during which it required both parties to present evidence to establish their respective contentions on Ortigas' right to a writ of preliminary injunction. At these hearings, both parties reproduced before the Court of Appeals the same evidence they had adduced before the trial court during the 9-year long hearings on Ortigas' motion to dismiss, which evidence tended to support their respective contentions on the derivation of Ortigas's TCTs. 15 Thus, the acceptance of ex parte evidence which the Court rejected in Dioquino, never occurred in the instant case. Moreover, the determination of whether an inferior court had arbitrarily disregarded preponderant evidence of record adduced in protracted hearings before it, is a proper subject of inquiry by an appellate court in a certiorari proceeding. II. In arriving at its conclusion that TCT Nos. 77652 and 77653 are proper derivatives of OCT No. 351, which in turn had been issued pursuant to Decree No. 1425, the Court of

Appeals had relied on (a) a certified true copy of OCT No. 351; (b) survey plans prepared by Ortigas' Geodetic Engineer, Mr. Carlos Angeles, which were based on plottings of the boundaries of parcels of land appearing in the Notice of Initial Hearing in G.L.R.O. Record No. 917 and in the technical description found in the body of OCT No. 351, and in TCT Nos. 77652 and 77653; and (c) the testimony of Engineer Angeles that these plottings showed that the land covered by the TCTs was inside the larger parcel of land covered by the OCT, which in turn was inside the much larger parcel of land (The Hacienda de Mandaloyon) adjudicated to Ortigas' predecessor-in-interest by Decree No. 1425 issued in G.L.R.O. Record No. 917. 16 As noted earlier, the above evidence had been presented by Ortigas before the trial court during the prolonged hearings on its motion to dismiss. The Court described the above evidence as "secondary" in nature and noted that Ortigas did not establish the due execution and subsequent loss of the original documents, as required by the Rule on Secondary Evidence. 17 After careful re-examination of the evidence of record and applicable rules of evidence, the Court considers that the word "secondary evidence" was inaccurate. The copy of OCT No. 351 offered by Ortigas was a certified true copy of the original thereof found in the Registration Book of the Register of Deeds of Rizal. 18 The admissibility of such a copy in court proceedings is an exception to the ordinary rule on secondary evidence; 19 such admissibility is in fact mandated by Section 47 of Act No. 496 (The Land Registration Act). 20 Under the Land Registration Act which was in force at the time OCT No. 351 was issued, the original thereof found in the Registration Book of the Register of Deeds of Rizal was an official transcript of Decree No. 1425, with respect to the land covered by such decree situated in the Province of Rizal. 21 Thus, OCT No. 351 constitutes direct proof of the existence of Decree No. 1425 upon which the Ortigas TCTs (Nos. 77652 and 77653) are based. We believe further that the Court of Appeals was justified in relying upon the plotting prepared by Engineer Carlos Angeles and his testimony explaining the significance thereof, notwithstanding the secondary nature of that plotting and testimony. For, as will be seen shortly, authenticity and correctness of this survey plans and of Engineer Angeles's explanation thereof had already been judicially sustained in previously decided cases. III. In its Motion for Reconsideration and its supporting memorandum, Ortigas argued that the seeming factual uncertainties relating to its TCT's which had impelled the Court to order a remand of this case to the trial court, had already been resolved with finality in previously decided cases and are now matters of judicial notice. We have reviewed the underlying record carefully and must conclude that this claim of Ortigas is impressed with considerable merit. When evident of record in the instant case is considered together with the findings and conclusions embodied in previously decided cases, the factual uncertainties initially feared by the Court are dissipated. In truth, resolution of these uncertainties results from the application of the principle of res judicata and of its two (2) component concepts, i.e., conclusiveness of judgment and bar by prior judgment.

As early as 1906, in Cia. Agricola de Ultramar v. Domingo, et al., 22 this Court affirmed on appeal the trial court's confirmation of the title of La Compania Agricola de Ultramar as registered owner under the Torrens System of the Hacienda de Mandaloyon. Such confirmation, referring to title over a specific thing, has now acquired immutability and incontestability. 23 Thus, in Ortigas v. Hon. Ruiz 24 the Court ruled that the Ortigas & Co., Ltd. Partnership was the successor-in-interest of La Compania Agricola de Ultramar and can invoke the benefits of the Court's 1906 ruling, under the doctrine of the law of the case, to defeat an action for annulment of some of its transfer certificates of title on the ground of alleged fraud. 25 The Court noted in its 1906 decision that the identity and area of the Hacienda de Mandaloyon were not disputed by the oppositors in the land registration proceeding. 26 Neither was the validity of the land registration proceeding therein impugned by said oppositors. Hence the Court had no occasion there to discuss the detailed matters dealt with below. However, in at least two subsequent cases cited by Ortigas, the Supreme Court had occasion to affirm decisions rendered by the Court of Appeals, based on facts adduced before the Courts of First Instance, clarifying these matters. The legal conclusions drawn in these two cases, as well as the factual findings on which they were based, supplemented the Cia. Agricola ruling and demonstrate that the land registration court hearing Widora's application in LRC No. Q-336, could not have acquired jurisdiction over the land subject of the application, since that land is already registered under the Torrens system (TCT Nos. 77652 and 77653) and in fact formed part of a larger tract of land similarly previously brought under the Torrens system in the name of Ortigas' predecessor-in-interest. IV. In the first of these cases, Felipe C. Navarro v. Ortigas & Co. Ltd. Partnership, 27 this Court affirmed in 1979 by way of a minute resolution the decision of the Court of Appeals in C.A.-G.R. No. 53125-R dated 13 December 1978. 28 In that decision, the Court of Appeals established that the land registration application of La Compania Agricola de Ultramar over the Hacienda de Mandaloyon was granted under Decree 1425, actually issued under G.L.R.O. Record No. 917 by the Land Registration Court of Manila 1905, the very same Decree affirmed by this Court in its 1906 decision. The Court of Appeals noted that Ortigas had established this proposition by offering an extant portion of Decree No. 1425 covering land within the territorial jurisdiction of the City of Manila, which "coincides with a portion of the entire vast tract of land embraced by the technical description appearing in the notice of initial hearing published in the Manila American and (in) La Democracia (English and Spanish language newspapers of general circulation existing in 1904, certified true copies of which were offered in evidence by Ortigas) and was distinctly shown in a map or sketch plotted by Mr. Carlos Angles, Geodetic Engineer." 29

By way of background, the Navarro case involved a suit for injunction instituted by Ortigas on 11 February 1972 before Branch 16 of the Court of First Instance of Rizal [docketed as Civil Case No. Q-16265] in order to restrain a certain in Felipe Navarro fraudulently selling portion of its property to innocent third persons. Felipe Navarro was allegedly the attorney-in-fact of the physical occupants of a 17,955 square meter parcel of land owned by Ortigas and bounded by Amado T. Reyes St., Harapin ng Bukas St. and Luna St., San Juan, Manila. Felipe Navarro answered the complaint by impugning the validity of the Torrens titles held by Ortigas over the entire Hacienda de Mandaloyon, situated partially in Manila, partially in Quezon City and partially in Pasig, 30 because, among other things, they were allegedly declared void in a decision rendered by Branch 15 of the Court of First Instance of Rizal in Civil Case No. 7-M(10339). 31 After trial, CFI Judge Sergio Apostol rejected Navarro's contention in a decision granting injunction dated 16 December 1972, holding that the Ortigas titles were indefeasible, being based on Decree No. 1425 issued in 1905. 32 Before reaching the conclusion of the Ortigas titles had become indefeasible, Judge Apostol satisfied himself as to the existence of original Decree of Registration No. 1425, issued in 1905 in G.L.R.O. Record No. 917, from which this titles were derived:
There seems to be no question that there exists in the dockets of the General Land Registration Office a case known as G.L.R.O. Record No. 917 with La Compania Agricola de Ultramar as petitioner. The record of said case is, however, no longer complete. Copies of the application for the registration, plan technical description, decision and decree can longer be found. However, the expediente of the case still contains documents which reflect part of the proceedings that transpired therein, among which are: 1. "Mocion Pidiento Se Deja Sin Efecto A La Rebeldia", dated April 13, 1905; 2. "Decision on Motion to Vacate General Default" dated March 29, 1905; 3. Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge James Ross on the 29th day of March, 1905 in G.L.R.O. Record No. 917; 4. Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge James Ross on the 29th day (sic) of March, 1905 in G.L.R.O. Record No. 917; 5. "Mocion Emmendado Pidiendo Se Deja sin Efecto A La Sentencia Por Rebeldia" and 6. Mocion Pidiendo Se Deja Sin Efecto A La Rebeldia. The foregoing, the court believes, establishes beyond doubt that there was such a land registration case known as G.L.R.O. Record No. 917 with Compania Agricola de Ultramar as petitioner.

xxx xxx xxx Defendant, however, contends that because the decree in that case could no longer be found in the expediente of the case, Decree No. 1425, the decree number appearing in the titles issued under G.L.R.O. Record No. 917, is non-existent and fictitious. To rebut this contention of the defendant, plaintiff presented the following evidence: 1. A certified xerox copy of page 18 of the Book of Decrees, Bk. I; 2. A certified xerox copy of page 19 of the same book; 3. A certified xerox copy of Decree No. 1425 insofar as it covers the areas located in Manila; 4. A copy of the letter of transmittal from the Clerk of Court to the Register Deeds of Manila dated August 15, 1907 signed by (Clerk of the Land Registration Court) A.K. Jones requesting that a separate title be issued for each parcel of land covered by Decree No. 1425; and 5. A certification issued by Alberto H. Lingayo, Chief Surveyor of the Land Registration Commission to the effect that in the index card of ordinary cases kept in the Land Registration Commission, La Compania Agricola de Ultramar appears to be the petitioner in G.L.R.O. Record Nos. 699, 875 and 917 and that Decree Nos. 240, 696 and 1425 were issued on August 9, 1904, September 14, 1905 and April 26, 1905, respectively in these cases as (shown by) the Decree Book of Ordinary Cases of the Commission. This Court finds that there is nothing in Exhibits "7", "384" or "CCCC" (evidence of defendant Navarro) from which it may be inferred that Decree No. 1425 is non-existent or fictitious. On the contrary, the wordings of these certifications imply that such a decree did exist but the same can no longer be found in the expedients of G.L.R.O. Record No. 33 917 because it was lost during the war." (Citations of evidence omitted, emphasis supplied)

Judge Apostol also established that the Ortigas titles covered a large tract of land described in the technical description appearing in the initial notice of hearing in G.L.R.O. Record No. 917:
All these titles were traced back to their respective Original Certificates of Title, which were issued under G.L.R.O. Record Nos. 699, 875 and 917. Finally, it (Ortigas) proved that the lands in question are all embraced by the land described in the notice of initial hearing in G.L.R.O. Record No. 917 as published in the Manila American and La 34 Democracia (Exhibit "NNNN"), and Decree No. 1425. (Emphasis supplied)

Exhibit "NNNN" (above cited by Judge Apostol) in turn was based on the map plottings prepared by Geodetic Engineer Carlos Angeles of said technical descriptions as they appeared in certified true copies of the Manila American and La Democracia. 35 It should also be observed that Judge Apostol had noted an inaccuracy in the destination of the source titles of TCT Nos. 77652 and 77653 similar to that noted by

Widora in this case, but Judge Apostol held that this inaccuracy did not affect the validity of the titles:
Finally, defendant questions the fact that some of plaintiff's Transfer Certificates of Title, particularly Transfer Certificates of Title Nos. 73884, 77652, 71436-A and 77653, show that they were originally registered under Original Certificates of Title Nos. 19, 313 (sic), 336, 334 (sic) and 699 whereas Original Certificate of Title No. 19 covers land which is located in Antipolo. Plaintiff's witness, the surveyor Carlos Angeles, however, explained this as follows: Q It has been pointed out, Mr. Angeles that the present titles of the plaintiff Ortigas and Company Limited Partnership now indicate that these lands covered by these titles were originally registered in Original Certificate of Titles 337, 19, 336 and 334. Were you able to trace how these entries appeared in these titles? A In Transfer Certificate No. 77652 and 77653, it is indicted at the bottom of the title that it came from Original Certificate of Title Nos. 337, 19, 336, 337 (sic) and 344. We found out that 19 could not have been a source because it is in Antipolo, Rizal. Now, we traced back this title to show that error is, and then we found out that it should have been 13, as indicated in Transfer Certificate of Titles Nos. 443880, 27111, 44381 and 44382. So 19 is just a mere topographical (sic) error. Q How about Transfer Certificate of Title No. 699? A 699 is a G.L.R.O. Record Number, which was typed on the title. To better illustrate this, plaintiff's witness traced these errors in a diagram which he prepared and which was marked as Exhibit "YYYY". This Court is satisfied that the error in the statement of the sources of plaintiff's titles was, as shown by Exhibit "YYYY", merely typographical. Beside, these errors do not go into the validity of plaintiff's titles. And they 36 have all been traced to their respective Original Certificates of Title. (Citations of evidence omitted; emphasis supplied)

The decision of Judge Apostol was affirmed in its entirety by Gaviola, J. of the Court of Appeals. 37 As noted earlier, Felipe Navarro's petition for review of the Gaviola decision was denied by the Supreme Court for lack of merit. 38 The Court's minute resolution is a judgment on the merits for the purpose of applying the principles of bar by prior judgment and conclusiveness of judgment. 39 The factual matters raised, controverted, litigated and established in G.R. No. 50156 (Navarro v. Ortigas) which are relevant to the present case are as follows: 1) the inaccuracies in the sourcing of the mother titles of TCT Nos. 77652 and 77653 did not impair their probative value as evidence of Ortigas' ownership over the land described in

their technical descriptions; 2) the Registry of Deeds of Manila was the source of an original copy of Decree No. 1425 to the extent that Decree covered property situated in Manila; but this Decree, in it entirety, really covers much more, i.e., the entire Hacienda de Mandaloyon; 3) the extant sources of the boundaries of the Hacienda de Mandaloyon are the technical descriptions thereof appearing in the initial notice of hearing in G.L.R.O. Record No. 917; and 4) the land described in and covered by TCT Nos. 77652 and 77653 formed part of the Hacienda de Mandaloyon. Under the doctrine of conclusiveness of judgment, these factual matters established in G.R. No. 50156 are binding on Widora and can no longer be relitigated by it in G.R. No. 91797. 40 Both cases, to a certain extent, involve the same subject matter (i.e., the parcels of land described in Ortigas' TCT Nos. 77652 and 77653. Ortigas' cause of action in G.R. No. 50156 consisted of the fraudulent sales of its property made by Felipe Navarro in behalf of his "owner"-clients. That differs somewhat from Ortigas' cause of action in G.R. No. 91797, which consists of the adverse claim of ownership asserted by Widora over Ortigas' property, manifested through the filling of Widora's application for land registration. But more importantly, there is a substantial identity between Felipe Navarro (and his clients) on one hand and Widora on the other; both parties sought to question the validity of Decree No. 1425 and its particular derivatives here involved (TCT Nos. 77652 and 77653), insofar as the Decree had adjudicated in favor of Ortigas ownership of land being claimed by Navarro and Widora. This circumstance makes them privies in law for purposes of the operation of the rule on conclusiveness of judgment. 41 Furthermore, it must be observed that Widora is bound by the ruling laid down in the Cia. Agricola case of 1906 that Ortigas (through its predecessor-in-interest) is the registered owner of land comprising the Hacienda de Mandaloyon because the factual matters resolved in the Navarro case show that the land covered by Widora's application forms part of that vast tract of land adjudicated to Ortigas' predecessor-ininterest in the 1906 decision. Finally, as held in the Court of Appeals decision which we affirmed in G.R. No. 50156, the Torrens titles of Ortigas served as evidence of its indefeasible title over the property covered thereby and they became incontrovertible one year after entry of the final decree of registration from which they were derived in 1906. 42 The Supreme Court's affirmance of this ruling in fact constitutes a holding that the land covered by these titles (particularly TCT Nos. 77652 and 77653) have been duly brought under the Torrens System of land registration and that this circumstance prevented the land registration court hearing Widora's application in LRC No. Q-336 from acquiring jurisdiction over the land covered by that application. 43 V. In the second previously decided case, Del Rosario, et al. v. Ortigas & Co. Ltd., Partnership, 44 the Supreme Court affirmed the decision of the Court of Appeals in A.C.G.R. CV No. 61356 dated 29 December 1983, 45 holding that various Ortigas TCT's

including TCT Nos. 77652 and 77653, overlapping various portions of a seventy-hectare parcel of land situated in Ugong Norte, Pasig and Bagumbayan, Quezon City had become indefeasible and could no longer be impugned by the physical occupants of the overlapping property. 46 By way of background, this Del Rosario case originated as Civil Case No. 7-M (10339) before Branch 15 of the CFI of Rizal. In 1967, two (2) groups of occupants of the disputed property, faced with final and executory judgments for ejectment obtained by Ortigas, instituted this Del Rosario case as a class suit to impugn the validity of Ortigas' Torrens titles. The theory of the plaintiffs was that G.L.R.O. Record No. 917, and its incidents, were void ab initio for alleged lack of notice of initial hearing, among other reasons. In a decision dated 31 March 1970, Judge Vivencio Ruiz ruled in favor of the plaintiffs and declared the Ortigas TCTs null and void. Judge Ruiz' decision was, however, nullified on petition for certiorari, prohibition and mandamus by the Court of Appeals in its decision dated 12 November 1971 in C.A.G.R. No. 00039-R. 47 The Court of Appeals also decreed a remand of the case for new trial based on Ortigas' newly-discovered evidence. 48 This decision was affirmed by the Supreme Court in G.R. No. L-34440 by a Resolution dated 4 April 1972. 49 In a decision dated 3 November 1973, CFI Judge Arsenio Alcantara (to whom the case was remanded) rendered a decision on new trial upholding and confirming, among others, "the validity of Decree No. 1425, issued in Expediente 917 and all titles emanating therefrom." This decision was affirmed in its entirety by the Court of Appeals in CA-G.R. No CV-61356, as noted earlier. 50 In turn, this Court of Appeals decision was affirmed by the Supreme Court in G.R. No. 66110 on a Resolution denying Del Rosario's petition for review for lack of merit dated 16 February 1985. 51 It should be noted that Ortigas' evidence and argument establishing the existence and regularity of the proceedings in G.L.R.O. Record No. 917 and of Decree No. 1425 from which its controverted TCTs were derived, first adopted in the Navarro case, were likewise used and sustained again in the Del Rosario case, 52 and are, by and large, the same evidence and argument submitted by Ortigas to resolve the same alleged factual uncertainty raised for the third time in this case. 53 In the Del Rosario case, Geodetic Engineer Carlos Angeles again drew and offered in evidence a map indicating the full extent of the Hacienda de Mandaloyon, based on plottings of the technical descriptions appearing in the initial notice of hearing in G.L.R.O. Record No. 917, offered and marked as Exhibit 43-A New Trial. 54 Judge Alcantara noted that these plottings were quite adequate for the purpose of identifying the land registered in Cia. Agricola's name in 1906:
Plaintiffs [Del Rosario, et al.] also attempted to show as per technical description published in the Manila American and La Democracia, a polygon does not close such that one cannot give the exact area of the land sought to be registered. They claim that the plan submitted by said Surveyor Carlos Angeles is "doctored" because it had a

closed polygon. In this connection, it should be emphasized that the Hacienda Mandaloyon is a vast tract of land having an area of 4,000 hectares with natural boundaries consisting of rivers and creeks as shown in the plan Exh. "43-A" New Trial. Its natural boundaries are the Marikina River, Pasig River, San Juan River, Diliman Creek and Estero de Buaya, etc. Indeed, boundaries which are natural and fixed such as creeks and rivers, not the area, should govern in determining the identity of the land sought to be registered. And even conceding that the magnetic survey employed in surveying the disputed property in 1904 was erroneous, yet "mistake in survey is not a ground for alteration of decree of registration." In fact, plaintiffs' [Del Rosario] witness, Geodetic Engineer Pedro Samson, readily admitted that the properties being claimed by them are 55 inside the area described in the notices. (Citations omitted, emphasis supplied)

Exhibit 43-A New Trial submitted in the Del Rosario case showed the boundaries and location of the entire Hacienda Mandaloyon. Annex P submitted in the present Widora case shows the same entire Hacienda Mandaloyon and is identical with Exhibit 43-A New Trial. In the present Widora case, Ortigas also submitted Annex K-1 to show the location and boundaries of the land covered by TCT Nos. 77652 and 77653. When the map which is Annex K-1 is placed side by side with (or on top of) the map of the whole Hacienda Mandaloyon which is Exhibit 43-A New Trial and Annex P, the Annex K-1 map coincides with a portion of the Exhibit 43-A map. In other words, the lots covered by TCT Nos. 77652 and 77653 which are mapped in Annex K-1 constituted a portion of the Hacienda Mandaloyon. These Exhibits also show that the parcels of land covered by TCT Nos. 77652 and 77653 are located west of the Marikina river, which river was established in Del Rosario to be the eastern natural boundary of the Hacienda de Mandaloyon. Thus, once more, it is apparent that the factual matters which Widora seeks to litigate in G.R. No. 91797 have already been resolved in the Del Rosario case. Since the subject matter of the controversy in Del Rosario and in G.R. No. 91797 are identical (parcels of land covered by TCT Nos. 77652 and 77653), the cause of action Widora in G.R. No. 91797 is identical to that of the petitioners in Del Rosario, i.e., the petitioners in Del Rosario contested Ortigas' claim of ownership over the land from which they were being ejected, which is of course the same claim of ownership embodied in Ortigas' opposition to Widora's land registration application over the same land in the instant case. It follows that Widora in G.R. No 91797 must also be deemed privy in law of the petitioners in Del Rosario (for they too assailed the validity of Decree No. 1425 and its particular derivatives, TCT Nos. 77652 and 77653). Accordingly, the factual and legal matters resolved with finality in the Del Rosario case, which are determinative of the merits of Widora's application for land registration in G.R. No. 91797 must be considered, as in the Navarro case, as a bar to the grant of the Widora application under the rule on conclusiveness of judgment. VI. There is another important element of Widora's claim being asserted in the present proceedings which is precluded by both the principle of bar by prior judgment and the principle of conclusiveness of judgment. Widora's application for registration in the present case (LRC No. Q-336), essentially rest on an alleged Spanish title: "Titulo de

Propiedad No. 4136," dated 25 April 1894, said to be issued in the name of one Mariano San Pedro y Esteban, supposedly covering land of unimaginably large proportions: 173,000 hectares in Bulacan, Nueva Ecija, Rizal , Quezon City , Caloocan City and Pasay City. 56 Back in 10 December 1976, or only two (2) years after Widora had filed LRC No. Q-336, one Justino Benito and Widora commenced another case, Civil Case No. Q-22410 before the CFI of Quezon City. Benito claimed there that he was co-administrator of the intestate estate of Don Mariano San Pedro y Esteban, and that part of this estate was land covered by the supposed Spanish title, including a piece of land situated in Ugong Norte, Pasig and Bagumbayan, Quezon City, which land was covered by TCT Nos. 77652 and 77653 issued in Ortigas' name. Benito and Widora, therefore, sought in Q22410 to annul those TCTs for covering land allegedly previously owned by the Don Mariano San Pedro y Esteban estate as evidence by the supposed Titulo de Propiedad No. 4136, and subsequently sold or assigned by the estate to Widora. 57 Ortigas moved to dismiss the Benito-Widora complaint, arguing inter alia, that the alleged Spanish title relied upon by Benito and Widora had already been divested of probative value as evidence of land ownership, by P.D. No. 892. Ortigas' motion to dismiss was sustained on that ground by the trial court in a decision dated 28 February 1978. 58 That decision of the trial court in Q-22410 was affirmed on appeal by the Court of Appeals in C.A.-G.R. No. CV-64424 in a decision written by Jurado, J., dated 31 May 1984. The Court of Appeals, thus, affirmed the trial court's ruling that the Spanish title relied upon by Benito and Widora was no longer any good. 59 Widora (but not Benito) went on a Petition for Review before the Supreme Court, in G.R. No. 69343. This Court affirmed the decision of the Court of Appeals in a minute resolution dated 6 February 1985. Entry of final judgment was made on 29 March 1985.
60

As noted, in the case at bar, Widora is relying upon the same supposed Spanish title Titulo de Propiedad No. 4136. We believe and so hold that the Resolution of this Court in G.R. No. 69343, holding that alleged Spanish title had become bereft of any probative value is res adjudicata in respect of the present case. Put a little differently, the principle of bar by prior judgment precludes any reliance by Widora in the case at bar on that fantastic Spanish title considering the essential identities of parties and identity of subject matter and of cause of action between Civil Case No. Q-22410 and LRC Case No. Q-336. We should add that Widora's prayer for alternative relief in the form of confirmation of imperfect title over the land covered by its application for registration, is immaterial. That alternative relief is also premised upon Widora's claim that Ortigas had fraudulently registered the land in its (Ortigas) own name such that the land remained presumptively public land. The firmly entrenched rule is that a party can not evade the application of

the principle of bar by prior judgment by simply varying form of the action or by adopting a different mode of presenting its case. 61 VII. We consider finally the question of whether or not the defense of res adjudicata has been waived by Ortigas by failure to plead that defense seasonably in its opposition or motion to dismiss in LRC No. Q-336. We believe and so hold that there was no such waiver of res adjudicata by Ortigas in the case at bar. It is most important to note, in the first place, that the defense of res adjudicata pleaded by Ortigas in this case relates ultimately to the jurisdiction of the land registration court to try LRC No. Q-336. The Court of Appeals correctly stressed that Ortigas having shown that the land applied for by Widora is already registered in Ortigas' name, the land registration court simply had no jurisdiction to decree the registration of that same land in the name of some other person. The well-established rule is that lack of jurisdiction which renders an action dismissible may be determined by the court seized with it motu proprio, and may be raised by a party, at any stage of the proceedings even on appeal. 62 With particular reference to the ruling that Widora's alleged Titulo de Propiedad No. 4136 was bereft of probative value, we note that the Benito-Widora case reached finality (in the Supreme Court) only in 1985, when the proceedings in the motion to dismiss filed by Ortigas in LRC No. Q-336 were already in an advanced stage. In the second place, the Resolutions of the Supreme Court in the Navarro and Del Rosario cases, disposed of those cases on their merits by affirming the pertinent decisions of the Court of Appeals. Those Resolutions are part of the case law and the records of this Court itself of which we are bound to take judicial notice. 63 We are certainly not at liberty to disregard them in any case. So to disregard our own decisions would be to inflict substantial injustice and irreparable injury upon Ortigas which would be compelled to do all over again what it had done at least twice before to prove it has indefeasible title to the land covered by TCT Nos. 77652 and 77653. The resulting injustice and injury would not be limited to Ortigas, but would engulf many thousands of present registered private owners of Transfer Certificates of Title covering the thousands of hectares of land embraced by Decree No. 1425. The grave social implications of permitting a cloud to arise on all those Transfer Certificates of Title by our failure to take into account our own decisions in earlier cases, can scarcely be contemplated. In the third place, waiver of res adjudicata, a certainly in cases like the one before us, cannot casually be assumed to have been made. What is involved here is not an academic doctrine of law but very valuable property rights, so valuable that at least thrice before, various persons or groups of persons (including Widora, for the second time) have attempted to usurp title thereto by assailing the same two (2) TCTs. Ortigas tenaciously fought off those efforts at least three (3) times before, from the trial court

thru the Court of Appeals to our own Court, each litigation stretching out to many years. In this situation, only the most explicit and deliberate statement, in unmistakable language, will suffice to constitute waiver; that is certainly not present here. What is claimed here is merely implied or presumed waiver, which has been expressly denied by Ortigas. Yet as Lantin, J. of the respondent Court of Appeals observed, as far back as 27 June 1979, in its motion for reconsideration of the trial court's order of 20 April 1979 denying its motion to dismiss, Ortigas had already brought to the attention of the trial court the fact that its assailed titles had been upheld by Courts of First Instance and appellate courts in prior cases. 64 Moreover, during the proceedings on Ortigas' motion to dismiss, the Government itself, through the Land Registration Commission, had advised the trial court that the 156 hectare parcel Widora was seeking to register were "covered by valid and subsisting titles in the name of Ortigas." 65 Finally, the record of the instant case shows that Ortigas pleaded as a special and affirmative defense bar by prior judgment in its very first Opposition dated 13 October 1978 to Widora's application in LRC Q-336. 66 That defense was elaborated by Ortigas in its motion to dismiss dated 23 October 1978, where it stressed that the land applied for was already registered in its name under the Torrens system and that such previous registration of its title amounts to res adjudicata binding upon the whole world. 67 During the protracted hearings on its motion to dismiss before the trial court, Ortigas specifically pleaded our decision in the Benito-Widora case which by then had attained finality, in a Memorandum dated 28 October 1986 as a bar to further proceedings in the case at bar. In its motion for reconsideration of the trial court's order denying the motion to dismiss, Ortigas again specifically pleaded the Benito-Widora case, as well as the Compania Agricola case to show that its registered title over the disputed land had become indefeasible. 68 Further, Ortigas specifically pleaded not only the Compania Agricola and the Benito-Widora cases but also the decisions in the Navarro, Del Rosario and Ruiz cases in its petition for certiorari, prohibition and mandamus before the Court of Appeals. 69 We accordingly find it extremely difficult to suppose that there was implied or presumed waiver here of the defense or res adjudicata. FOR ALL THE FOREGOING, we hold that the Motion for Reconsideration should be as it is hereby GRANTED; that our Decision dated 28 August 1991 is hereby RECONSIDERED and SET ASIDE; that Widora's Petition for Review in the instant case is hereby DENIED for lack of merit. The Regional Trial Court's order of 30 March 1988 is hereby SET ASIDE and that court is hereby ORDERED to dismiss immediately LRC Case No. Q-336. The Decision and Resolution of the Court of Appeals dated 27 November 1989 and 25 January 1990, respectively, are hereby AFFIRMED in toto. Costs against petitioner. Gutierrez, Jr., Davide, Jr. and Romero, JJ., concur.

FIRST DIVISION [G.R. No. 80505 : December 4, 1990.]

192 SCRA 28 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM, Defendant-Appellant. DECISION CRUZ, J.: The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act of 1972, is before us on appeal. The information against the accused-appellant read as follows: That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused without being authorized by law, did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which are prohibited drug, for and in consideration of P20.00. Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero rendered a decision the dispositive portion of which declared: WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and to pay a fine of P20,000.00 and cost.
: nad

The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned over to the Dangerous Drugs Board for proper disposal. SO ORDERED. The accused-appellant raises the following assignment of errors in this appeal: 1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer. 2. The Court a quo erred in admitting in evidence against the accused Exh. "E2-A" which is merely a xerox copy of the P10.00 bill allegedly used as buybust money. The evidence of the prosecution may be summarized as follows: On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati. The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. The other

members of the team strategically positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and there two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit). The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana and crushed leaves.
: nad

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

In People v. Paco, 5 this Court observed: Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People v.

Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988). As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 6 Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the admission by the trial court of the xerox copy only of the marked P10.00 bill. The Solicitor General, in his Comment, correctly refuted that contention thus: This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.
:-cralaw

The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.) Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission. We are convinced from the evidence on record that the prosecution has overcome the constitutional presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug addiction upon our people. WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against the accused-appellant.
: nad

SO ORDERED Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur. Endnotes