Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 103517 February 9, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGARDO YAP y BOCA and SIMPLICIO OSMEA y OCAYA, accused-appellants. The Solicitor General for plaintiff-appellee. Macamay & Donato Law Office for accused-appellant.

REGALADO, J.: Do not conform any longer to the pattern of this world, . . . Romans 12:2 Accused-appellants Edgardo Yap and Simplicio Osmea were charged with a violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, for having sold on October 1, 1989 in Ozamiz City six sticks of marijuana for a consideration of ten pesos. 1 On May 21, 1990 appellants pleaded not guilty when arraigned with the assistance of counsel de parte, and thereafter stood trial. On November 9, 1990, the court a quo rendered judgment convicting both appellants of the crime charged, and sentenced them to serve the penalty of reclusion perpetua, to pay a fine of P20,000.00, to suffer all accessory penalties of the law and to pay the costs. The six marijuana cigarettes were forfeited in favor of the Government and appellant Yap was credited, in the service of his sentence, with four-fifths of the period of his preventive imprisonment. 2 On June 12, 1993, after the filing of appellant's brief, appellant Simplicio Osmea died due to gunshot and stab wounds, 3 hence his appeal was dismissed. The present proceeding is accordingly with respect to appellant Edgardo Yap, although the participation of Osmea may occasionally be adverted to in this opinion. From the evidence in this case. it appears that a report of rampant pushing of prohibited drugs by notorious pushers "Edgar" and "Simpoy," later identified as appellants Edgardo Yap and Simplicio Osmea, respectively, was submitted by a civilian informer to the 10th Narcotics Regional Unit of the Philippine Constabulary (PC) stationed in Cotta, Ozamiz City. 4

Acting on said report, a buy-bust team was organized by that unit, composed of S/Sgt. Reynaldo Miguel, as team leader, Sgt. Bernardino Mugot, Sgt. Rolando Malagayo and CIC Emilio de Guzman, as members, and with Percival Raterta, a PC Narcotics Command agent, as the poseur-buyer. 5 At around 10:30 o'clock in the morning of October 1, 1989, two buy-bust operations were scheduled to be conducted simultaneously inside the public market of Ozamiz City. In the operations subject of the case at bar, S/Sgt. Miguel gave Raterta a ten-peso bill with serial number JP 674717, marked by the signature of Miguel just below the printed signature thereon of then President Corazon C. Aquino, and which facts were duly entered in the log book of their office. 6 When Raterta reached the public market,. the other members of the team had already strategically deployed themselves in their designated positions. Upon seeing appellants Yap and Osmea, Raterta approached them and offered to buy marijuana, whereupon six sticks thereof were delivered to him by Osmea after he handed the marked ten-peso bill to Yap, who put the money in the right pocket of his pants. Thereafter, Raterta went back to their headquarters and turned over the six marijuana cigarettes to their team leader, S/Sgt. Miguel. 7 Immediately after the consummation of said sale of the six sticks of marijuana, Sgt. Mugot, who was four to five meters away, saw the two appellants go inside the public market. He and his companions surreptitiously followed both appellants. They did not immediately arrest the latter as they were still waiting for the result of the other buy-bust operation conducted by another group in the same vicinity, and knowledge of their presence might alarm other drug pushers who may be present therein. When the other group informed Sgt. Mugot that their operation failed, he and his companions forthwith arrested both appellants and brought them to their headquarters. S/Sgt. Miguel then conducted a body search on appellants and retrieved the marked ten-peso bill from the right pocket of Yap/s pants. 8 The six sticks of marijuana were brought by Sgt. Malagayo to the forensic chemist of the National Bureau of Investigation at Region 10 for laboratory examination and testing. These tests yielded positive results for marijuana. 9 Appellants denied any participation in the aforestated sale of prohibited drugs. Osmea claimed that in the morning of that day, he was in their house doing some household chores when Yap came and asked him to accompany him to buy soap inside the public market. On their way, they met Frederick Lapitan and his cousin, Paul Suizo. Lapitan, their common friend, invited them for a round of drinks in the store of Charles Revil located inside the public market. At about 10:30 A.M., a group of rugged looking men entered the store and picked up Yap and Osmea. The latter resisted and asked for a warrant of arrest, but a pistol was pointed at his head. The said group identified themselves as members of the Regional Special Action Force and brought them to their headquarters. The incidents narrated above were corroborated by Lapitan and Emerita Tiongson, a regular customer of Osmea's mother. 10 Appellants raised seven assignments of errors, which can actually be simplified and consolidated into five propositions, and the same are hereunder discussed in light of the evidence on record. 1. Appellants claimed that the testimonies of the prosecution witnesses were never offered nor admitted in evidence, nor were the specific purposes for which they were offered duly stated, contrary to Sections 34 and 35, Rule 132 of the Rules of Court. In actual practice, there is a difference between presentation or introduction of evidence and offer of such evidence at the trial of a case. The presentation of evidence consists of putting in as evidence the testimony of the witnesses or the documents relevant to the issue. An offer of evidence, on the other hand, means the statement made by counsel as to what he expects to prove through the

witness. This is what trial lawyers understand by the "offer of evidence." Thus, "offer of evidence," as used in Section 34 of Rule 132 must be understood to include the presentation or introduction of evidence. What is essential in order that an offer of testimony may be valid, therefore, is that the witness be called and asked appropriate questions. 11 All the prosecution witnesses were presented and examined before the court a quo, the questions and answers being taken down in writing, and such testimonies were offered thereafter to the trial court. Had appellants wanted the trial court to reject the evidence being introduced, they should have raised an objection thereto. They cannot raise the question for the first time on appeal. 12 The right to object is a privilege which the party may waive. It is not consistent with the ends of justice for a party, knowing of a supposed secret defect, to proceed and take his chance for a favorable verdict, with the power and intent to annul it as erroneous if it should be against him. 13 2. Appellants asserted that the team of Sgt. Mugot was not provided with a warrant of arrest when appellants were apprehended. This specious argument is readily disposed of by Section 5(c) of Rule 113 which provides that a peace officer or a private person may effect an arrest without a warrant when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. Sgt. Mugot had personal knowledge of the commission of the crime, having been present in the locus criminis and having actually witnessed the unlawful transaction. The interval between the commission of the crime and the time of the arrests was only four to five minutes. 14 A buy-bust operation is a form of entrapment employed by peace officers to apprehend a malefactor in flagrante delicto, that is, to catch him red-handed while selling marijuana to a person acting as a poseur-buyer. 15Consequently, and contrary to the claim of the defense, appellants were positively identified by the poseur-buyer, Raterta, and Sgt. Mugot, who were undeniably eyewitnesses to the crime. 3. Appellants, as is to be expected, sought to assail the credibility of the prosecution witnesses. Availing of the very same case cited by appellants, we reiterate the doctrine in People vs. Baduya 16 that the findings of fact of the trial court on the matter of credibility of witnesses will not be disturbed on appeal in the absence of any showing that the trial court overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case. The exceptions mentioned therein do not obtain and find no application in the case under consideration. 4. The claim of the appellants that they were framed is absurd. The narcotics agents did not even know them before the operation and certainly had no grudge against or entertained any animosity towards them. It is difficult to conceive that said agents, for no reason at all, would pick out both appellants from the group with which they were drinking and arrest them for a crime that could mean imprisonment for life. Aside from the presumption of regularity in the discharge of their functions, 17 there is no showing that the agents were actuated by improper motives, hence their testimonies are entitled to full faith and credit. The defense of frame-up must be proved by clear and convincing evidence. Like alibi, it is a weak defense that is easy to concoct and difficult to prove. 18 5. Appellants invoke the discredited theory that it is unlikely for them to sell prohibited drugs to an unknown person like Raterta and in a public place like the market. In a long line of cases, 19 the Court has emphasized that drug pushers sell their prohibited wares to customers, be they strangers or not, in private as well as in public places. If pushers peddle drugs only to persons known to them, then drug abuse would not be as rampant as it is now and would not pose a serious and grave threat

to society. What actually matters is not familiarity between the seller and buyer but their agreement and acts constituting the sale and delivery of the vile prohibited drugs. Significantly, appellants mentioned the names of certain persons who could have bolstered their defense but whom they inexplicably did not present as witnesses, such as Charles Revil, the owner of the store who was present during the alleged frame-up of appellants. Some porters at the pier were allegedly there drinking at another table, and were even identified by appellants and Lapitan as George. Toto and Peter. These people were never called by the defense as witnesses. Paul Suizo, the cousin of Lapitan who was with them all the time on that occasion, was also not presented. 20 Instead, despite the gravity of the case, the defense opted to merely rely on the testimonies of Frederick Lapitan, who admitted in open court that he was testifying in favor of appellants who are his close friends, and Emerita Tiongson, who was admittedly not only indebted to but likewise dependent for her only means of livelihood on the mother of Osmea. In fact, Tiongson admitted that she testified for appellants because the mother of Osmea told her to do so and even supplied her the name of Frederick Lapitan whom she did not even know. 21 In fine, the Court is convinced that a conscientious evaluation of the evidence cannot but yield the irresistible conclusion that the disputable presumption of innocence in favor of appellant Yap has been successfully rebutted and that his guilt for the offense charged has been duly established beyond reasonable doubt. WHEREFORE, the judgment of the trial court with respect to accused-appellant Edgardo Yap y Boca is hereby AFFIRMED, with the modification that the penalty imposed should be life imprisonment instead of reclusion perpetua and, as a consequence, the reference therein to the accessory penalties of reclusion perpetua should be, as it is hereby, deleted. SO ORDERED. Narvasa, C.J., Padilla, and Puno, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 181829 September 1, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. SATURNINO VILLANUEVA, Appellant. DECISION DEL CASTILLO, J.: On appeal is the November 5, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02210 which affirmed with modification the November 28, 2003 Decision2 of the Regional Trial Court (RTC) of Tayug, Pangasinan, Branch 51. The CA found appellant Saturnino Villanueva guilty beyond reasonable doubt of three counts of qualified rape and sentenced him to suffer the penalty of

reclusion perpetua and to pay his victim the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages, for each count. Factual Antecedents: On November 6, 2002, three Informations were filed against appellant for the crime of rape. The accusatory portions of the Informations read: Crim. Case No. T-3157: That on or about the 9th day of June, 2002, at dawn, x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA,"3 a minor 12 years of age, against her will and consent, to the damage and prejudice of said "AAA." CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.4 Crim. Case No. T-3158: That on or about the 27th day of September, 1999, in the evening, at x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a minor 9 years of age, against her will and consent, to the damage and prejudicie of said "AAA." CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.5 Crim. Case No. T-3159: That on or about the 28th day of September, 1999, at dawn, at x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one "AAA," a minor 9 years of age, against her will and consent, to the damage and prejudice of said "AAA." CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353.6 When arraigned on November 14, 2002, appellant pleaded not guilty to all charges.7 During pre-trial, the parties stipulated that the appellant is the father of "AAA." It was likewise agreed that "AAA" was below 12 years of age when the rape incidents happened.8 "AAAs" birth and medical certificates were likewise marked as Exhibits "A" and "C," respectively.9 Thereafter, the cases were tried jointly.10 Version of the Prosecution The prosecution presented "AAA" as its witness. "AAA" narrated that when she was about 4 years old, her mother left her in the care of her father, herein appellant. Since then, she had been living with her father.

"AAA" claimed that appellant sexually abused her on September 27 and 28, 1999 and on June 9, 2002. During her testimony, "AAA" narrated that: PROS. ULANDAY: Q Will you please state your name, age and other personal circumstances? WITNESS: A I am "AAA," 13 years old, out-of-school youth, presently residing at x x x11 xxxx PROS. ULANDAY: Q Madam Witness, do you still remember September 27, 1999? A Yes, sir. Q Why do you remember that particular date? A That was the birthday of my father and the date when he touched me, sir. xxxx Q Who rape[d] you? A My papa, sir. Witness pointed to the accused. xxxx PROS. ULANDAY: Q You claimed that your father touched and used you. How did he begin in touching you? A He tied me, sir. xxxx Q What part of your body was x x x tied by your father? A My mouth, sir. Q What other parts of your body, if there [are] any? A My hands and my feet, sir. PROS. ULANDAY:

My witness is crying, your Honor.12 xxxx Q Now, after your father tied you on September 27, 1999, what did he do, if theres any? A He raped me, sir. COURT: Q What do you mean by x x x saying he raped you? xxxx A He undressed me, sir. xxxx COURT: And we make of record that [witness is now] in tears.13 xxxx PROS. ULANDAY: Q Madam Witness, during the last hearing you uttered the word "incua na." What do you mean by that? A He inserted his penis into my vagina, sir. Q How long a time did your father [insert] his penis into your vagina? A About two minutes, sir. Q At early dawn of September 28, 1999, what happened if any, between you and your father? A The same, sir. Q What do you mean by the same? A That he inserted his penis into my vagina, sir. Q Before your father inserted his penis into your vagina, what did he do, if there was any? A He first undressed me, sir. Q While he was undressing you what were you doing, if any?

A I failed to do any, sir. Q Why did you fail to do any? A Because I was afraid, sir. Q Why were you afraid at the time? A Because he threatened me, sir. Q How did he [threaten] you? A That if I would report the matter to anyone he would kill the person to whom I will report, sir. Q Do you remember June 9, 2002 at 3:00 oclock dawn? A Yes, sir. Q Why do you remember that particular date? A Because he again raped me, sir. Q Who raped you? A My father, sir. Q In what particular place [were] you raped? A In our house, sir. xxxx Q You claimed that you were raped by your father, how did he rape you? A He undressed me, sir. Q What else did he do aside from undressing you? A He poked a knife at me, sir. Q And after poking a knife at you, what happened next, if any? A Then he touched (kinuti) me, sir. Q What part of your body was touched by your father? A My vagina, sir.

Q How did he touch your vagina? A He inserted his penis into my vagina, sir. Q What happened when he inserted his penis into your vagina? A I cried, sir.14 After the presentation of "AAAs" testimony, the prosecution rested its case. Version of the Defense The defense presented appellant as its first witness. In his testimony, appellant admitted that "AAA" is his daughter.15 He also admitted that on September 27 and 28, 1999 and June 9, 2002, he was living in the same house as "AAA."16 However, when asked regarding the rape charges filed against him by his daughter, appellant denied the same. Thus: Q And this daughter of your[s] now charge you [with] rape in Crim. Case Nos. T3157/3158/3159 for allegedly having sexual intercourse with her against her will and consent. What can you say against these charges by your daughter? A [Those are] not true, sir.17 The defense next presented Marcelino Villanueva (Marcelino) who testified that he is the father of the appellant.18He claimed that "AAA" filed the rape cases against appellant because the latter forbade her to entertain suitors.19Marcelino also alleged that after appellant was incarcerated, "AAA" eloped with her 20-year old boyfriend and that "AAA" only separated from her boyfriend when she was brought under the care of the Department of Social Welfare and Development.20 When asked how old "AAA" was when she allegedly eloped with her boyfriend, Marcelino answered that "AAA" was only 13 years old.21 Ruling of the Regional Trial Court The trial court lent credence to the testimony of "AAA." However, it noted that although it was agreed upon during the pre-trial that "AAA" was a minor below 12 years of age, the fact remains that "AAA" was 12 years, six months and 19 days when she was ravished by the appellant on June 9, 2002.22 The court below also observed that "AAA has always been a pathetic child of oppression, abuse and neglect" and that "[h]er innocence, tender age, dependence [on appellant] for survival, and her virtual orphanhood sufficed to qualify every sexual molestation perpetrated by her father as rape x x x."23 The dispositive portion of the Decision reads: WHEREFORE, finding the accused SATURNINO VILLANUEVA guilty beyond reasonable doubt of three counts of rape, defined and penalized by Article 266-A of the Revised Penal Code, perpetrated against [his] daughter on September 27, 1999, September 28, 1999 and June 9, 2002, x x x and as mandated by Article 266-B, same Code, the Court hereby sentences him to suffer the penalty of DEATH for each offense, to indemnify the complainant "AAA" for damages in the amount of P50,000.00 per [count], and to pay the costs. SO ORDERED.24

Ruling of the Court of Appeals In his brief filed before the appellate court, appellant claimed that the prosecution failed to present evidence that would overcome the presumption of his innocence. Appellant also alleged that the trial court erred in lending credence to the unrealistic and unnatural testimony of "AAA."25 He claimed that it was unusual for "AAA" not to offer any resistance to the advances allegedly made by him considering that he was unarmed. According to the appellant, "AAA" should have struggled or at least offered some resistance because she was not completely helpless.26 Appellant also suggested that "AAA" must have been coached because initially, she did not know the acts which constitute rape. However, during the succeeding hearings, "AAA" allegedly testified in detail the bestial acts committed against her.27 Moreover, appellant argued that the prosecution failed to formally offer in evidence the medical certificate and to present the doctor who conducted the medical examination to testify on his findings.28 Likewise, "AAAs" birth certificate was not formally offered. Neither did the Municipal Civil Registrar who allegedly prepared the same take the witness stand. Thus appellant claimed that assuming he was indeed guilty of the crimes charged, he should only be held liable for simple rape and not qualified rape because the minority of the victim was not duly established.29 Further, with the passage of Republic Act No. 9346, appellant should not be sentenced to death.30 On the other hand, appellee maintained that "AAAs" credibility was beyond doubt31 and that it was unnecessary to offer proof of resistance where the assailant exercised moral ascendancy against his victim, as in this case.32Appellee insisted that the crimes committed were three counts of qualified, and not simple, rape considering that "AAA" was a minor and the offender was her father,33 and that the parties had already stipulated during pre-trial as regards the age of the victim.34 On November 5, 2007, the appellate court rendered its Decision disposing thus: WHEREFORE, premises considered, the Decision dated 28 November 2003 of the Regional Trial Court of Tayug, Pangasinan, Branch 51 in Crim. Case Nos. T-3157, T-3158 and T-3159 finding accused-appellant Saturnino Villanueva guilty beyond reasonable doubt of three (3) counts of qualified rape under Articles 266-A and 266-B is AFFIRMED with the MODIFICATION that pursuant to Republic Act No. 9346, the penalty of death imposed on appellant is reduced to reclusion perpetua for each count of qualified rape, without eligibility for parole under Act No. 4103, as amended. Further, accused-appellant is ordered to pay the private complainant/victim ["AAA"], for each count of qualified rape, the amounts of Php 75,000.00 as civil indemnity, Php 75,000.00 as moral damages and Php 25,000.00 as exemplary damages. SO ORDERED.35 The appellate court found no reason to reverse the findings of the trial court on the credibility of "AAA."36Although there were occasions when "AAA" would not immediately answer the questions propounded to her, the CA opined that it was because she was either distressed in recounting her horrible experiences or in tears.37 The appellate court likewise considered the fact that "AAA" was only 13 years old when she testified on her harrowing experiences.38 The appellate court likewise brushed aside appellants contention that "AAA" did not offer any resistance. According to the CA, appellants moral ascendancy over "AAA" substitutes for violence or intimidation.39 The CA also concluded that even without the medical certificate, appellant could still be held liable for three counts of rape. His conviction could rest exclusively on the credible testimony of "AAA" and

the medical certificate would only be corroborative evidence.40 Anent the birth certificate, the CA recalled that during pre-trial, the minority of the victim and her relationship with the appellant had already been stipulated upon. Hence, the said elements have been sufficiently alleged in the Informations and proven during trial.41 Finally, the CA held that appellants denial is intrinsically weak and self-serving especially considering "AAAs" credible and straightforward testimony.42 Our Ruling Both the appellant and the appellee opted not to file their supplemental briefs.43 The appeal is partly meritorious. At the outset, we must state that we entertain no doubt that appellant thrice raped his daughter, "AAA." We examined the records and we find "AAAs" testimony convincing and straightforward. We therefore have no reason to reverse or modify the findings of the trial court on the credibility of the victims testimony, more so in this case where the said findings were affirmed by the CA. We also agree with the ruling of the appellate court that appellant could be convicted of rape even without the medical certificate. "In rape cases, the accused may be convicted solely on the testimony of the victim, provided the testimony is credible, natural, convincing, and consistent with human nature and the normal course of things."44 As stated above, "AAAs" testimony was credible and convincing. As such, appellants conviction could rest solely on it. The medical certificate would only serve as corroborative evidence. We, however, agree with the appellant that both the medical certificate and "AAAs" birth certificate, although marked as exhibits during the pre-trial, should not have been considered by the trial court and the CA because they were not formally offered in evidence. Section 34, Rule 132 of the Rules of Court explicitly provides: "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." In this case, we note that after the marking of the exhibits during pre-trial, the prosecution did not formally offer the said medical certificate or birth certificate in evidence. In fact, the prosecution rested its case after presenting the testimony of "AAA" without formally offering any documentary exhibit at all. Our ruling in Heirs of Pedro Pasag v. Parocha45 is instructive, thus: The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be excluded and rejected. xxxx The Rules of Court [provide] that the court shall consider no evidence which has not been formally offered. A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its

admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. xxxx Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected.46
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We reiterated the above ruling in Dizon v. Court of Tax Appeals47 where one of the issues presented was whether the Court of Tax Appeals and the CA gravely abused their discretion "in allowing the admission of the pieces of evidence which were not formally offered" by the Bureau of Internal Revenue.48 In finding the case impressed with merit, the Court held that: Under Section 8 of RA 1125, the CTA is categorically described as a court of record. As cases filed before it are litigated de novo, party-litigants shall prove every minute aspect of their cases. Indubitably, no evidentiary value can be given the pieces of evidence submitted by the BIR, as the rules on documentary evidence require that these documents must be formally offered before the CTA. x x x xxxx x x x [T]he presentation of the BIRs evidence is not a mere procedural technicality which may be disregarded considering that it is the only means by which the CTA may ascertain and verify the truth of BIRs claims against the Estate. The BIRs failure to formally offer these pieces of evidence, despite CTAs directives, is fatal to its cause. Such failure is aggravated by the fact that not even a single reason was advanced by the BIR to justify such fatal omission. This, we take against the BIR.49 We are not unaware that there is an exception to the above-stated rule. In People v. Mate,50 Silvestre Mate (Mate) was charged with the crime of "Kidnapping for Ransom with Murder and Frustrated Murder."51 During arraignment, he entered a plea of "guilty." The court then propounded clarificatory questions to determine whether the accused understood the consequences of his plea. Immediately thereafter, the trial court promulgated its decision finding the accused guilty as charged and sentenced him to death.52 It was only after the rendition of the judgment that the trial court conducted hearings for the reception of the prosecutions evidence.53 From the prosecutions evidence, it would appear that during the investigation, Mate voluntarily made extra-judicial statements as contained in Exhibits "A," "B," and "J." Also, after his conviction, he appeared as witness for the prosecution against his co-accused where he affirmed his extrajudicial statements in Exhibits "A," "B," and "J." However, the state prosecutor failed to formally offer said exhibits.

In debunking the defenses contentions that the trial court erred in rendering a judgment of conviction on Mate even before the prosecution could present its evidence, and in considering the exhibits which were not formally offered, the Court held thus: The defense contends that the trial court committed a serious error in rendering judgment of conviction immediately after Mate had pleaded guilty to the crime charged on the basis of his plea of guilty and before receiving any evidence. While the trial court committed an error in rendering judgment immediately after the accused had pleaded guilty, and, thereafter, conducted hearings for the reception of the evidence for the prosecution, such an irregularity, is insufficient to justify the setting aside of the judgment of conviction, considering that it is supported by the judicial and extrajudicial confessions of the accused and by other evidence. x x x xxxx The defense questions also the failure of the state prosecutor Cornelio Melendres to make a formal offer of his exhibits, although they have been marked and identified. Such an oversight appears trivial because the entire evidence for the prosecution is recorded. Even without the exhibits which have been incorporated into the records of the case, the prosecution can still establish the case because the witnesses properly identified those exhibits and their testimonies are recorded. Exhibits "A", "B", and "J" are all admissible against Mate because it appears with clarity that he voluntarily and spontaneously gave those narrations without compulsion from anybody. In fact, . . . when he testified against Ben Bohol he affirmed those narrations again.54 In Mato v. Court of Appeals,55 we concretized the above ruling by holding that evidence, although not formally offered in evidence, may be "admitted and considered by the trial court provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case."56 In Ramos v. Dizon,57 we deemed the exhibits to have been incorporated into the records because they had been "presented and marked during the pre-trial of the case."58 Likewise, the first requisite was deemed satisfied because one of the parties therein explained the contents of the exhibits when interrogated by the respondents counsel.59 In the instant case, we find the rulings espoused in People v. Mate,60 Mato v. Court of Appeals,61 and Ramos v. Dizon62 not applicable. Thus, we find that both the trial court and the CA erred in allowing the admission of "AAAs" medical certificate and birth certificate. The records would show that the lone witness for the prosecution did not identify the said exhibits or explain their contents. When "AAA" was placed on the witness stand, she merely stated that she was 13 years old. No reference was ever made to her birth certificate. The same is true with the medical certificate. After the marking during the pre-trial, the prosecution did not refer to it in any stage of the proceedings. Neither did it present the doctor who prepared the same. Moreover, appellants admission during the pre-trial that "AAA" was a minor below 12 years of age63 would not help the prosecutions case. First, the trial court found this admission inaccurate as in fact, "AAA" was already above 12 years of age when the rape incident transpired on June 9, 2002. Second and more important, appellants admission during pre-trial is not admissible as it violates Section 2, Rule 118 of the Rules of Court which explicitly provides that: "All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and his counsel, otherwise they cannot be used against the accused. x x x." In People v. Chua Uy,64 we held that:

Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits "D" to "D-4", inclusive, and Exhibit "E" contained methamphetamine hydrochloride, the admission cannot be used in evidence against him because the Joint Order was not signed by RAMON and his counsel. Section 4 of Rule 118 of the Rules of Court expressly provides: SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by his counsel. Put in another way, to bind the accused the pre-trial order must be signed not only by him but his counsel as well. The purpose of this requirement is to further safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge, as he may have waived his presence at the pre-trial conference; eliminate any doubt on the conformity of the accused of the facts agreed upon. In this case, records would show that the Pre-trial Order was not signed by both appellant and his counsel. In view of the foregoing, we find that the prosecution did not present any satisfactory evidence to prove "AAAs" minority. "In the prosecution of criminal cases, x x x, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established. Qualifying circumstances or special qualifying circumstances must be proved with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the victims minority and her relationship to the accused-appellant must be both alleged and proven beyond reasonable doubt."65 In view of the foregoing, we find appellant guilty only of three counts of simple rape66 the penalty for which is reclusion perpetua for each count. Accordingly, the awards of civil indemnity must be reduced to P50,000.00 and moral damages to P50,000.00. Finally, the award of exemplary damages is proper. "Exemplary damages may be awarded in criminal cases as part of civil liability if the crime was committed with one or more aggravating circumstances. Relationship as an alternative circumstance under Article 15 of the Revised Penal Code is considered aggravating in the crime of rape."67 In this case, the aggravating circumstance of relationship was duly established. Appellant himself admitted when he testified in open court that he is "AAAs" father. However, the award of P25,000.00 as exemplary damages must be increased to P30,000.00 in line with prevailing jurisprudence.68 WHEREFORE, we find appellant Saturnino Villanueva GUILTY of three counts of simple rape and accordingly sentence him to suffer the penalty of reclusion perpetua and to indemnify his victim "AAA" the amounts ofP50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, for each count. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR: RENATO C. CORONA

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 122539 March 4, 1999 JESUS V. TIOMICO, petitioner, vs. THE HON. COURT OF APPEALS (FORMER FIFTH DIVISION) and PEOPLE OF THE PHILIPPINES, respondent.

PURISIMA, J.: This is a petition for review by certiorari under Section 2, Rule 125, in relation to Section 1, Rule 45 of the Rules of Court to correct, reverse and annul the decision 1 of the Court of Appeals which affirmed the judgment 2 of the trial court convicting the petitioner herein for a violation of the Trust Receipts Law. Petitioner Jesus V. Tiomico, (Tiomico) opened a Letter of Credit with the Bank of the Philippine Islands (BPI) for $5,600 to be used for the importation of two (2) units of Forklifts, Shovel loader and a truck mounted with crane. On October 29, 1982, the said machineries were received by the accused, as evidenced by the covering trust receipt. Upon maturity of the trust receipt, on December 28, 1982, he made a partial payment of US$855.94, thereby leaving an unpaid obligation of US$4,770.46. As of December 21, 1989, Tiomico owed BPI US$4,770.46, or P109,386.65, computed at P22.93 per US dollar, the rate of exchange at the time. Failing to pay the said amount or to deliver subject machineries and equipments, despite several demands, the International Operations Department of BPI referred the matter to the Legal Department of the bank. But the letter of demand sent to him notwithstanding, Tiomico failed to satisfy his monetary obligation sued upon. Consequently, he was accused of a violation of PD 115, otherwise known as the Trust Receipts Law, under an Information 3 alleging: That on or about the 29th day of October, 1982, in the Municipality of Makati, Metro, Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, executed a Trust Receipt Agreement for and in behalf of Paramount Calibrators Merchandising of which he is the sole proprietor in favor of the Bank of the Philippine Islands. In consideration of the receipt by the said accused of three (3) bares one unit Forklift Model FD-30 Toyota Branch 2-J70 Hp and one unit Forklift Model LM-301 Toyota Branch 2-J 70 Hp and one unit shovel loader Model SOT 130 HP, 6 Cyl-LC #2-16860, for which there is now due the sum of US$5600.00, wherein the accused agreed to sell the same and with the express obligation to remit to the complainant-bank the proceeds of the sale, and/or to turn over the same if not sold, on demand, but the accused once in possession of the said items, far from complying with his obligation, with unfaithfulness and abuse of confidence, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert the same to his own personal use and benefit despite repeated demands, failed and

refused and still fails and refuses account for and/or remit the proceeds of the sale thereof, to the damage and prejudice of the said complainant-bank as represented by Lourdes V. Palomo in the aforementioned amount of US $5600 or its equivalent in Philippine currency. Contrary to law. Arraigned thereunder, Tiomico entered a plea of Not Guilty, at which juncture, Assistant Provincial Prosecutor John B. Egana manisfested that he was authorizing the private prosecutor, Atty. Jose B. Soncuya, to prosecute the case subject to his direction, supervision and control. On October 16, 1989, Gretel S. Donato was presented to testify for the prosecution. According to her, she worked for the Bank of the Philippine Islands (BPI) in 1981 and in 1982, she was assigned as one of the Letter of Credit processors in the International Operations Department of BPI. Her duty, among others, was to process letter of credit applications which included that of Tiomico. The trust receipt executed by the latter was given to her as part of the documents supporting his Letter of Credit. The following documents presented in the course of the testimony of Donato were identified by her as follows: (1) Exhibit "A" Letter of Credit; (2) Exhibit "B" Pro Forma Invoice; (3) Exhibit "C" Letter of Credit Confirmation; (4) Exhibit "D" Trust Receipt; Exhibit D1-D4 signatures thereon; (5) Exhibit "E" Statement of Account, the amount of P306,708.17 appearing therein, as Exhibit E-1, and the signature thereto of an unidentified bank officer, as Exhibit E-2; (6) Exhibit "F" Letter of Demand of the bank's legal department; a return card, as Exhibit F-1, and the signature of the addressee's agent, as Exhibit F-1 A. Counsel for petitioner objected to the admission of Exhibits "A", "B", "C" and "D" on the ground that witness failed to identify the said documents inasmuch as her testimony regarding the signatures appearing therein were evidently hearsay. But the trial court admitted the said documentary evidence, despite the objections raised thereto by the defense. Thereafter, the prosecution rested. After the People rested its case, petitioner begged leave to file a demurrer to the evidence, theorizing that the evidence on record does not suffice to prove beyond reasonable doubt the accusation against him. But instead of granting the said motion of the defense, the trial court ordered a re-opening of the case, so as to enable the prosecution to adduce more evidence. The defense objected but to no avail. The trial court proceeded with the continuation of trial "in the interest of justice". On September 5, 1990, the-lower court denied the demurrer to evidence. The Motion for Reconsideration of the defense met the same fate. It was denied. The case was then set for

continuation of trial on December 12, 1990. Reception of evidence for the defense was set on January 7, 1991. But on January 4, 1991, three days before the scheduled continuation of trial, the defense counsel filed an Urgent Motion for Postponement for the given reason that he had to appear before Branch 12 of the Metropolitan Trial Court of Manila on January 7, 1991. On January 7, 1991, the lower court denied the Urgent Motion for Postponement and adjudged petitioner to have waived the right to introduce evidence on his behalf. On January 30, 1991, the trial court promulgated its decision finding petitioner guilty of a violation of PD 115, and sentencing him accordingly. On appeal, the Court of Appeals came out with a judgment of affirmance, the dispositive portion which, is to the following effect: WHEREFORE, the Court finds JESUS V. TIOMICO guilty beyond reasonable doubt of violation of PD 115 and is hereby sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor as minimum, to fifteen (15) years of reclusion temporal as maximum; to indemnify Bank of the Philippine Islands the sum of P109,386.65 and to pay the costs.
SO ORDERED. 4

Undaunted, petitioner found his way to this Court via the Petition for Review by Certiorari at bar, seeking to annul the decision 5 of the Court of Appeals; raising as issues: (1) WHETHER OR NOT PD 115 OR TRUST RECEIPTS LAW IS UNCONSTITUTIONAL; (2) WHETHER OR NOT A TESTIMONY CAN BE ADMITTED DESPITE THE ABSENCE OF FORMAL OFFER AS REQUIRED BY SECTIONS 34 AND 35, RULE 132, OF THE REVISED RULES OF COURT; (3) WHETHER OR NOT THE TESTIMONY OF WITNESS WITH REGARD TO THE LETTER OF CREDIT AND OTHER DOCUMENT IS HEARSAY AND; (4) WHETHER OR NOT THERE WAS DEPRIVATION OF DUE PROCESS ON THE RIGHTS OF THE ACCUSED WHEN THE TRIAL COURT DENIED THE MOTION FOR POSTPONEMENT BY THE DEFENSE COUNSEL. As regards the first issue, the Court has repeatedly upheld the validity of the Trust Receipts Law and consistently declared that the said law does not violate the constitutional proscription againts imprisonment for non-payment of debts. (People vs. Cuevo, 104 SCRA 312; People vs. Nitafan, 207 SCRA 726; Lee vs. Rodil, 175 SCRA 100). Such pronouncement was thoroughly explained in Lee vs. Rodil (supra) thus: Verily, PD 115 is a declaration by the legislative authority that, as a matter of public policy, the failure of a person to turn over the proceeds of the sale of goods covered by a trust receipt or to return said goods if not sold is a public nuisance to be abated

by the imposition of penal sanctions. As held inLozano vs. Martinez (146 SCRA 323, 338): . . . certainly, it is within the authority of the lawmaking body to prescribe certain act deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts that the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se, but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The State can do this in the exercise of its police power. In fine, PD 115 is a valid exercise of police power and is not repugnant to the constitutional provision of non-imprisonment for non-payment of debt. In a similar vein, the case of People vs. Nitafan (supra) held: The Trust Receipts Law punishes the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of another regardless of whether the latter is the owner or not. The law does not seek to enforce payment of a loan. Thus, there can be no violation of the right against imprisonment for non-payment of a debt. Anent the second issue, the pivotal question is: Should the testimony of a witness be admitted despite the failure of the proponent to offer it formally in evidence, as required by Section 34 of Rule 132 6? We rule on this issue in the affirmative. Records disclose that the private prosecutor stated the purpose of the testimony in question although he did not formally offer the same. The proceedings 7 went on as follows: ATTY. SONCUYA: The purpose of the testimony of the witness is to prove that the accused applied for a letter of credit, for the opening of a letter of credit and for the importation of machinery from Japan and that those machinery were delivered and received by the accused as evidenced by the trust receipt and that the accused failed to comply with the terms and conditions of the said trust receipt, your Honor. COURT: All right, proceed. As aptly stressed by the Solicitor General in his Comment, 8 "the absence of the words, 'we are formally offering the testimony for the purpose of . . .'" should be considered merely as an excusable oversight on the part of the private prosecutor. It should be borne in mind that the rationale behind Section 34 of Rule 132 9 is to inform the Court of the purpose of the testimony, to enable the judge to rule whether the said testimony is necessary or is irrelevant or immaterial. In the case under scrutiny, since the purpose of subject testimony was succinctly stated, the reason behind the requirement for its formal offer has been substantially complied with. What the defense

counsel should have done should have been to interpose his objection the moment the private respondent was called to testify, on the ground that there was no prior offer made by the proponent. 10 The tendency of the rules on evidence, is towards substantial justice rather than strict adherence to technicalities. To condemn the disputed testimony as inadmissible due to the failure of the private prosecutor to properly observe the rules on presentation of evidence, would render nugatory, and defeat the proceedings before the lower court. On the third issue whether or not the witness can testify on subject documents introduced as evidence despite her admission that she did not see the accused sign the said exhibits, we likewise rule in the affirmative. As aptly held by the appellate court: 11 Gretel Donato testified that she was not present when appellant affixed his signature on the documents in question (p. 22 ibid). She, however, identified the signatures thereon (Exhs. "A-1", "A-2", "D-1", "D-2" and "D-3", Letter of Credit; Exhibit B Pro Forma Invoice; Exhibit C Letter of Credit Confirmation; Exhibit D-Trust Receipt; Exhibit D1-D4 signatures thereon; pp. 129 and 132 of Orig. Rec.) as those of the appellant Jesus V. Tiomico arising from her familiarity therewith inasmuch as she was the one who processed the papers pertinent to the transactions between the appellant and the complainant bank (TSN, Feb. 5, 1990, pp 4-6). Her testimony, therefore, cannot be considered hearsay because it is principally based on her personal knowledge of bank transactions and the documents and records which she processes in the regular course of the bank's business operations. It is not essential to the competence of a lay witness to express opinions on the genuineness of handwritings that he did see the person in question write. 12 It is enough that the witness has so adopted the same into business transactions as to induce a reasonable presumption and belief of genuineness of the document. This is due to the fact that in the ordinary course of business, documents purporting to be written or signed by that person have been habitually submitted to the witness, or where knowledge of handwriting is acquired by him in an official capacity. 13 Did the witness gain familiarity with the signature of the accused? The answer is yes. Exhibits "A" to "D": Letter of Credit, Pro-Forma Invoice, Letter of Credit Confirmation and Trust Receipt, respectively, were all familiar to the witness since the said documents bearing the signature of the accused were all submitted to her for processing. It is therefore beyond cavil that she acquired sufficient familiarity to make witness competent to testify on the signatures appearing in subject documents. From the time of the application to its approval and when Tiomico defaulted, she (witness) was the one who had overseen the transactions and recommended the actions to be taken thereon. As a matter of fact, she was the one who referred the failure of Tiomico to pay his balance to Tiomico to pay his balance to the Legal Department of BPI, prompting the said legal department to send him (Tiomico) a demand letter. Furthermore, whether there was due execution or authencity of such documents was impliedly admitted by the accused. On this point, we quote with approval the conclusion reached by the Court of Appeals, to wit: 14 On the other hand, appellant impliedly admitted the due execution of the assailed documents considering that he did not deny the fact that he opened a letter of credit.

Neither did he deny that the signature appearing thereon is his. What appellant intended to dispute was merely the balance of his past due account with the complainant bank, thus: COURT Denied. What is the defense of the accused? Denial that he opened the letter of credit. ATTY. EBRO No, you honor. COURT: What is the defense? xxx xxx xxx ATTY. EBRO. Q: Now you identified signatures allegedly of the accused on Exhibit A, which is the application for the letter of credit, I ask you Miss Donato, were you personally present when this signature was affixed to the document? A: (witness going over Exhibit A) I was the one of the ones who processed the letter of credit. ATTY. EBRO May we ask for an order directing that the witness respond to my question. COURT Just answer the question. WITNESS A: No, sir. COURT Does the accused deny the signature? ATTY. EBRO

No, your Honor. I am just showing also that she has been exaggerating. (TSN, Feb. 5, 1990, pp. 12-13, p. 22) In light of the foregoing, it stands to reason and conclude that the documents under scrutiny are admissible in evidence, as held by the trial court. Anent the fourth issue, petitioner theorizes that the denial of the motion for postponement sent in by his lawyer violated his constitutional right to due process. It should be stressed that subject Urgent Motion for Postponement was not the first motion for resetting ever presented by the counsel for petitioner. On December 12, 1990, upon motion of the latter, and without objection on the part of the prosecution, the reception of evidence for the defense was reset once more to January 7, 1991, at 8:30 in the morning. The most basic tenet of due process is the right to be heard. Where a party had been afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process. 15 Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violating the Bill of Rights. 16 It is further theorized by petitioner that the lower court should have at least granted him another trial date so as to enable him to present his evidence, so that the denial of his Urgent Motion for Postponement infringed his constitutional right to be heard by himself and by counsel. 17 This submission is unsustainable. When an accused is accorded a chance to present evidence on his behalf but due to his repeated unjustifiable failure to appear at the trial without any justification, the lower court order's the case submitted for decision on the basis of the evidence on record, said judicial action is not tainted with grave abuse of discretion because in such a case, the accused is deemed to have waived the right to adduce evidence on his behalf. 18 Furthermore, records show that in this case the defense counsel did not even bother to appear for the scheduled reception of evidence for his client on January 7, 1991, notwithstanding the fact that the trial court did not act upon, much less grant, the Urgent Motion for Postponement which he filed on January 4, 1991. Lawyers should never presume that their motions for postponement would be granted. 19 A motion for continue or postponement is not a matter of right. It is addressed to the sound discretion of the Court. Action thereon will not be disturbed by appellate courts, in the absence of clear and manifest abuse of discretion resulting in a denial of substantial justice. 20 Motions for postponement are generally frowned upon by Courts if there is evidence of bad faith, malice or inexcusable negligence on the part of the movant. 21 The inadvertence of the defense of the defense counsel in failing to take note of the trial dates and in belatedly informing the trial court of any conflict in his schedules of trial or court appearances, constitutes inexcusable negligence. It should be borne in mind that a client is bound by his counsel's conduct, negligence and mistakes in handling the case. 22 As gleanable from the records:

. . . Attached to the motion is the Order of said court dated November 19, 1990. Obviously, when the case was called on December 12, 1990, the counsel for the accused had already known of the scheduled hearing before the Metropolitan Trial Court, yet he agreed to the hearing on January 7, 1991. Counsel's conduct is not consistent with the thrust of the Judiciary to expedite the termination of cases under the Mandatory Continuous Trial . . . 23

A lawyer as an officer of the court is part of the judicial machinery in the administration of justice. As such, he has a responsibility to assist in the proper and sound administration of justice. Like the court itself, he is an instrument to advance its ends and the speedy, efficient, impartial, correct and inexpensive adjudication of cases. A lawyer should not only help to attain these objectives. He should also avoid improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting the court in the speedy and efficient administration of justice. 24 Petitioner invites attention to the Affidavit of Desistance by the Bank of the Philippine Islands (BPI). This issue raised by the petitioner cannot be entertained as it was only raised for the first time on appeal. 25 Considering that the assailed decision is firmly anchored on prevailing law and established jurisprudence, the Court cannot help but deny the petition. WHEREFORE, the petition is DENIED and the decision of the Court of Appeals, dated May 31, 1995, affirming the judgment of conviction rendered on January 28, 1991 by the court of origin AFFIRMED. No pronouncement as to costs. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 155483 April 27, 2007

HEIRS OF PEDRO PASAG, represented by EUFREMIO PASAG; HEIRS OF MARIA PASAG, represented by EPIFANIA LUMAGUI; HEIRS OF JUANITA PASAG, represented by ASUNCION ORTIOLA; HEIRS OF ISIDRO PASAG, represented by VIRGINIA P. MENDOZA; HEIRS OF BASILIO PASAG, represented by MILAGROSA P. NABOR; and HEIRS OF FORTUNATA PASAG, represented by FLORENTINA S. MEMBRERE, Petitioners, vs. Sps. LORENZO and FLORENTINA PAROCHA, PRISCILLA P. ABELLERA, and MARIA VILORIA PASAG,Respondents. DECISION VELASCO, JR., J.: The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be excluded and rejected. The Case

The present Petition for Review on Certiorari under Rule 45 seeks the annulment of the February 15, 2002 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 68544, and its September 6, 2002 Resolution2 denying petitioners Motion for Reconsideration. In effect, petitioners entreat this Court to nullify the February 24, 2000 Resolution of the Urdaneta City Regional Trial Court (RTC), Branch 45 in Civil Case No. U-5743, granting the demurrer to evidence filed by respondents and dismissing their Complaint, which ruling was upheld by the CA. The Facts The instant case arose from a Complaint for Declaration of Nullity of Documents and Titles, Recovery of Possession and Ownership, Reconveyance, Partition and Damages filed by petitioners at the Urdaneta City RTC of Pangasinan against respondents. Petitioners alleged a share over three (3) properties owned by respondents, which formed part of the estate of petitioners deceased grandparents, Benito and Florentina Pasag. They averred that Benito and Florentina Pasag died intestate, thus, leaving behind all their properties to their eight (8) childrenPedro, Isidro, Basilio, Severino, Bonifacio, Maria, Juanita, and Fortunata. However, Severino, the predecessor of respondents, claimed in an affidavit of self-adjudication that he is the sole, legal, and compulsory heir of Benito and Florentina Pasag. Consequently, he was able to appropriate to himself the properties covered by Original Certificates of Title (OCT) Nos. 2983 and 1887. Thereafter, Severino executed a deed of absolute sale over the said properties in favor of his daughter, respondent Florentina Parocha. Moreover, petitioners alleged that Severino used the same affidavit of selfadjudication to secure a free patent over an agricultural land that had long been under the possession of Benito and Florentina Pasag. In denying the material allegations in the Complaint, respondents averred in their Answer that the properties left behind by the spouses Benito and Florentina Pasag had already been partitioned among their eight (8) surviving children. They claimed that the parcels of land covered by OCT Nos. 2983 and 1887 are Bonifacios share of which he later on renounced in a Quitclaim Deed in favor of his brother, Severino. As regards the parcel of land covered by OCT No. P-20607, respondents asserted that the said land had been in Severinos possession and occupation since 1940, thus, giving him the right to apply for and be granted a free patent over it. Having complied with the requirements of law, Severinos title had now become indefeasible. The trial of the case commenced on March 19, 1996. On March 9, 1999, petitioners rested their case and were granted ten (10) days within which to submit their formal offer of documentary exhibits. However, petitioners failed to submit the said pleading within the required period. On April 19, 1999, petitioners asked the trial court to give them until May 11, 1999 to submit their offer of evidence; and it subsequently granted their motion. However, on May 11, 1999, they again failed to submit their offer of evidence and moved for another extension of five (5) days. Unfortunately, petitioners still failed to submit their formal offer of evidence within the extended period. Consequently, in its June 17, 1999 Order,3 the trial court deemed waived petitioners right to make their formal offer of evidence. On July 27, 1999, petitioners moved for the admission of their offer of evidence. On September 1, 1999, however, the trial court issued an Order4 denying petitioners formal offer of evidence for their "consistent failure"5 to submit it. On October 28, 1999, respondents filed a Motion to Dismiss on Demurrer to Evidence.

On February 24, 2000, in its Resolution,6 the trial court granted respondents demurrer to evidence and ordered the dismissal of the Complaint. Petitioners Motion for Reconsideration was denied for lack of merit. Petitioners appealed the case to the CA. The Ruling of the Court of Appeals Affirming the ruling of the trial court, the CA held that petitioners failed to prove their claim by a preponderance of evidence. It observed that "no concrete and substantial evidence was adduced by [petitioners]"7 to substantiate their allegation that Severino, the predecessor of respondents, fraudulently executed an affidavit of self-adjudication in order to exclude petitioners from the settlement of the estate of Benito and Florentina Pasag. The Issues Petitioners submit the following issues for our consideration: I. The Hon. Court of Appeals committed reversible error in affirming the Decision of the Court a quo despite the gross negligence of their counsel thus depriving their rights to due process. II. The Court of Appeals committed reversible error in affirming the Decision of the trial court instead of remanding the case for further proceedings to clearly establish their respective claims on the subject properties.8 Simply stated, the issues revolve on the propriety of the following: (1) waiver of petitioners offer of documentary evidence; and (2) dismissal of the Complaint on a demurrer to evidence. The Courts Ruling The petition has no merit. Waiver of the Offer of Evidence The Rules of Court provides that "the court shall consider no evidence which has not been formally offered."9 A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial.10 Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence.11 On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court.12 Strict adherence to the said rule is not a trivial matter. The Court in Constantino v. Court of Appeals13 ruled that the formal offer of ones evidence is deemed waived after failing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not

non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice."14 Applying the aforementioned principle in this case, we find that the trial court had reasonable ground to consider that petitioners had waived their right to make a formal offer of documentary or object evidence. Despite several extensions of time to make their formal offer, petitioners failed to comply with their commitment and allowed almost five months to lapse before finally submitting it. Petitioners failure to comply with the rule on admissibility of evidence is anathema to the efficient, effective, and expeditious dispensation of justice. Under the Rule on guidelines to be observed by trial court judges and clerks of court in the conduct of pre-trial and case of deposition and discovery measures,15 it is provided that: On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter the judge shall make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer of evidence in writing in conformity with Section 35, Rule 132[.] On the other hand, Section 35 of Rule 132 of the Rules of Court provides that "documentary and object evidence shall be offered after the presentation of a partys testimonial evidence." It requires that "such offer shall be done orally unless allowed by the Court to be done in writing." The pre-trial guidelines and Sec. 35 of Rule 132 jointly considered, it is made clear that the party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the partys documentary or object evidence waived. While Sec. 35 of Rule 132 says that the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in numbersay from 100 and above, and only where there is unusual difficulty in preparing the offer. The party asking for such concession should however file a motion, pay the filing fee, set the date of the hearing not later than 10 days after the filing of the motion,16 and serve it on the address of the party at least three (3) days before the hearing.17 In short, it is a litigated motion and cannot be done ex parte. Counsels for parties should not however rely on the benevolence of the trial court as they are expected to have thoroughly and exhaustively prepared for all possible pieces of evidence to be presented and the purposes for which they will be utilized. As a matter of fact, the draft of the offer of evidence can already be prepared after the pre-trial order is issued, for, then, the counsel is already fully aware of the documentary or object evidence which can be put to use during trial. Remember that under the pre-trial guidelines, the trial court is ordered to integrate in the pre-trial order the following directive: No evidence shall be allowed to be presented and offered during the trial in support of a partys evidence-in-chief other than those that had been identified below and pre-marked during the pretrial. Any other evidence not indicated or listed below shall be considered waived by the parties. However, the Court, in its discretion, may allow introduction of additional evidence in the following cases: (a) those to be used on cross-examination or re-cross-examination for impeachment purposes; (b) those presented on re-direct examination to explain or supplement the answers of a witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial proceedings despite due diligence on the part of the party offering the same.18

It is apparent from the foregoing provision that both parties should obtain, gather, collate, and list all their respective pieces of evidence whether testimonial, documentary, or objecteven prior to the preliminary conference before the clerk of court or at the latest before the scheduled pre-trial conference. Otherwise, pieces of evidence not identified or marked during the pre-trial proceedings are deemed waived and rendered inutile. The parties should strictly adhere to the principle of "laying ones cards on the table." In the light of these issuances and in order to obviate interminable delay in case processing, the parties and lawyers should closely conform to the requirement that the offer of evidence must be done orally on the day scheduled for the presentation of the last witness. Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case.19 The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence.20 It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected.21 Dismissal of the Complaint on a Demurrer to Evidence Having established that the documentary evidence of petitioners is inadmissible, this Court is now tasked to determine the propriety of the dismissal of the Complaint on a demurrer to evidence. A demurrer to evidence is an instrument for the expeditious termination of an action;22 thus, abbreviating judicial proceedings.23 It is defined as "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue."24 The demurrer challenges the sufficiency of the plaintiffs evidence to sustain a verdict.25 In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or sufficient proof to sustain the indictment or to support a verdict of guilt.26 In the present case, we have thoroughly reviewed the records and are convinced that petitioners have failed to sufficiently prove their allegations. It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations.27 However, petitioners did not substantiate their allegations and merely argued that the Complaint should be "threshed out in a full blown trial in order to establish their respective positions on issues [which are] a matter of judicial appreciation."28 Regardless of the bare argument of petitioners, however, we find that the trial and appellate courts were correct in dismissing the Complaint. The allegation that Severino fraudulently excluded the other heirs of Benito and Florentina Pasag in the settlement of the latters estate was not supported by concrete evidence. While petitioners maintain that the estate of Benito and Florentina was never partitioned among their heirs, the testimony of their witness, Eufemio Pasag, proves otherwise. Significantly, during cross-examination, Eufemio admitted that the children of Benito and Florentina, including the father of petitioners, had received properties as inheritance from the said spouses. He testified, thus: Q Are you aware that there are eight (8) children of the spouses Benito and Faustina Pasag? A Yes, sir.

Q And one of whom is Bonifacio Pasag? A Yes, sir. Q And one of whom is Severino Pasag? A Yes, sir. Q Are you likewise aware, Mr. Witness, that after the death of the spouses Benito and Faustina Pasag, there was no last will and testament? A Yes, sir. Q And of course, you are aware that there are properties left by the said spouses, is that right? A Yes, sir. Q And in fact, your father Pedro Pasag has already a title in his name of the properties left by the spouses to Pedro Pasag, is that right? A Yes, sir. Q And in fact, it is where your house was situated or erected among those properties that was given to your father, is that right? A Yes, sir. Q And of course you are aware that likewise Severino Pasag, after the death of the spouses Benito and Faustina Pasag, acquired some properties as inheritance, is that right? A Yes, sir. xxxx Q And you also agree with me that Isidro Pasag, Juanito Bustillo, Fortunata Savellano, Basilio Pasag, and Maria Lumague and the other brothers and sisters of your father likewise received property of their own as a result of the death of your grandfather, is that right? A Yes, sir.29 It must be stressed that fraud is not presumed; and it must be proved by clear and convincing evidence,30 and not by mere conjectures or speculations.31 No such evidence was presented in this case to sustain petitioners allegations. WHEREFORE, we DENY the petition and AFFIRM the assailed February 15, 2002 Decision and September 6, 2002 Resolution of the CA, with costs against petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-34754 March 27, 1981 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SILVESTRE MATE y ABAD, defendant-appellant.

PER CURIAM: On November 16, 1971, an information was filed with the Circuit Criminal Court of Rizal against Silvestre Mate y Abad, John Doe alias "Ben Almine Bohol", Peter Doe alias "Doro" for the crime of Kidnapping For Ransom With Murder and Frustrated Murder, to wit:
That on or about the 1st day of November, 1971, in the Municipality of Makati, Province of Rizal, Philippines and within the jurisdiction of htis Honorable court, the above mentioned accused, with evident premeditationm, conspiring and confederating together and mutually aiding one another mdid, then there wilfully, unlawfully and feloniously and for the purpose of kidnapping Susan and Lyn Butler to extort ransom, neter the premises of the Butler residence at No. 15 Ipil Road, Forbes Park, Makati, Rizal, and while the accused was in the guesthouse inside the Butler compound, Martina Caldoza, a maid of the Butlers, surprised the accused in the guesthouse and with intent to kill, treachery and use of superior strength, the accused did, then and there wilfully, unlawfully and feloniously hit her on the head with the shotgun they were then provided, stab her on the back several times with a screw driver, thereby inflicting upon said Martina Caldoza mortal injuries which directly caused her death; thereupon, the accused in pursuance of their conspiracy and criminal design and upon seeing Mrs. Caroline Butler approaching the guesthouse where they were positioned, with the same intent to kill, treachery and while the victim Mrs. Butler was fleeing for help, did, then and there wilfully, unlawfully and feloniously shoot her with the same firearm hitting and inflicting upon the vital parts of her body gunshot wounds, thus the accused performing all the acts of execution which would produce the crime of murder as a consequence, but which nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, due to the timely and able medical attendance rendered to Caroline Butler which prevented her death; the said accused, still pursuing their criminal intent, design and conspiracy, did, then and there wilfully, unlawfully and feloniously hold her and threatened to kill her for the purpose of extorting ransom of P25,000.00 from her parents to which demand only P15,000.00 was produced which the accused received and carried away together with the kidnap victim Suzie Butler to Botolan, Zambales. 1

The case was set for arraignment on November 20, 1971. On the said date, the following proceedings took place: ATTY. GALVAN I am appearing for the accused as counsel de oficio, Your Honor. Your Honor, I have conferred with the accused Your Honor, and I

informed him of the nature of the charges against him and inquired from him if he had a counsel and he told me that he has no counsel. I informed him of his constitutional rights and also the probable penalty of the charges against him. The accused says he is ready for arraignment. FISCAL MELENDRES I am appearing for the prosecution, Your Honor. COURT Arraign the accused. (The Court's Deputy Clerk of Court reads the information to the accused and it was duly interpreted to him.) CLERK OF COURT The accused enters a plea of GUILTY, Your Honor. COURT Q Are you aware of the consequence of your act that whenever an accused will plead guilty, he will be punished in accordance with the law? A Yes, Your Honor. Q And that you might be punished with death? A Yes, Your Honor. Q Did you ask your mind and ask your conscience and searched your soul with respect to the consequence of your act? A Yes, Your Honor. Q And you made that soul searching from the time that you were arrested by the police? A Yes, Your Honor. Q Notwithstanding that, you are now ready to receive whatever penalty that may be imposed upon you by the law?
A Yes, Your Honor.
2

Immediately, thereafter, the trial court promulgated a decision, convicting the accused of the crime charged in the information, the dispositive portion of which reads, as follows:
WHEREFORE, in view of the spontaneous and voluntary confession of guilt of accused Silvestre Mate y Abad, the Court finds him GUILTY beyond reasonable doubt, of the crime of Kidnapping for Ransom with Murder and Frustrated Murder under Article 267 of the Revised Penal Code, as charged in the information, and hereby sentences him to

suffer the supreme penalty of death, to indemnify the heirs of the deceased Martina Caldoza the amount of P12,000.00, to pay the amount of P20,000.00 as moral damages and PI0,000.00 as exemplary damages, to pay Mrs. Caroline Butler the amount of P25,000. 00 as exemplary damages, and to pay the costs. 3

xxx xxx xxx Subsequently, the trial court conducted hearings for the reception of the prosecution's evidence. The prosecution presented as witnesses T/Sgt. Orlando D. Acierto, PC Investigator, stationed at Camp Conrado T. Yap, Iba, Zambales, Catalino Manipon, CIS Agent-Investigator, Manolo Dizon, police investigator, Makati Police Department, Capt..Roman P. Madella, Commander of the 162nd PC Company, at Camp Conrado T. Yap, Iba, Zambales, Dionisio Bengzon, Chief of Security at Forbes Park, Dr. Orlando V. Salvador, the physician who conducted the autopsy on the body of the deceased, and Remy Macaspac, Patrolman, Makati, Police Department and a number of documentary evidence. The evidence disclosed the following facts: At about 11:00 p.m. of October 31, 1971, accused Silvestre Mate, together with Albino Ben Bohol, gained entrance into the yard of Mr. Charles Butler at No. 15 Ipil Road, Forbes Park, Makati, Rizal. They stayed in the guesthouse within the yard until the morning of November 1, 1971. At about 7:30 a.m., Mate noticed' a man and a woman approach the guesthouse, but they did not enter. About thirty minutes later a woman entered the guesthouse. Mate and Bohol were hiding and watching her movements. Later, both Mate and Bohol approached the woman, who turned out to be the victim, Martina Caldoza. Martina, surprised and afraid upon seeing the two, shouted for assistance. Mate held Martina, trying to stop her from shouting. At that moment Ben Bohol hit Martina on the head with the handle of the shotgun. When Martina became unconscious and fell Ben Bohol stabbed her twice at the back with a screwdriver. Mate and Bohol brought the woman to the bathroom of the guesthouse where Ben Bohol again repeatedly stabbed her until she died. Five minutes afterwards, Mrs. Butler approached the guesthouse as if looking for something. Mate who was watching the movement of Mrs. Butler, pointed the shotgun at her and told her not to shout. Mrs. Butler, surprised and afraid, shouted for help and tried to run away. Mate shot her at the back with the shotgun. Mate, then, proceeded hurriedly, through the kitchen, into the house of the Butlers. He ordered a woman he met inside the house to accompany him to the bedroom. Inside bedroom, Mate saw Suzie Butler who accompanied Mate inside one of the rooms. 4 When the police authorities came, they surrounded the place, and Mate held Suzie Butler as a hostage inside the locked room. The uncle of Suzie tried to negotiate with Mate for the release of Suzie. Mate stated that he wanted to talk with newspaperman Ruther Batiguas. Batiguas was allowed to enter the room bringing with him food. The uncle of Suzie was also allowed by Mate to enter the room. They negotiated for the amount of ransom money needed to release Suzie. Mate eventually accepted P15,000.00 provided he would be brought by helicopter to his desired place for escape. The police officers agreed. About 3:00 p.m. of the same day, Mate, Suzie, her uncle, and Batiguas rode the helicopter that had been provided and they were all flown to Botolan, Zambales. They landed in Pulong Bato, Botolan, Zambales, at about 5:30 p.m. of November 1, 1971. The P15,000.00 was given to Mate by the uncle of Suzie and Suzie was released. Mate remained, while the group left in the same helicopter. 5 Dr. Orlando V. Salvador conducted the autopsy on the body of the victim Martina Caldoza y Cagadoe and prepared the Necropsy Report, as follows: 6

Postmortem Findings Pallor of integuments and nailbeds. Ligature marks around ankle, bilateral, 18 x 0.5 cm. Abrasions: lower lip, region, left, 2.5 x 1.5 cm.; 3 x 2.5 cm.; knee, right, antero-lateral aspect, 2 x 1.5 cm. Contused-abrasions purplish-read: infra orbital region, left, near base of nose, 2 x 0.5 cm., lips moutaneous portions: upper lip, right half, 2.6 x 1 cm.; lower lips, almost entire portion, 6 x 1.5 cm. Hematoma, scalp, frontoparietal region, bilateral. Lacerated wound, parietal region at vertex along sagittal line, 6 cm. long. Fracture, linear, parietal and occipital bones along sagittal line. Stab wounds: (1) Chest, anterior aspect, left side, 6.5 cm. from anterior midline, left side, 6.5 cm. from anterior midline, level of the 2nd intercostal space along midclavicular line, oriented obliquely, 1.1 cm. in size elliptical in shape, edges cleancut, both extrendties sharp, directed downwards, backwards and medafly penetrating the thoracic cavity thru the 2nd ICS, perforating the upper of lung, with an approximate depth of 12 cm.; (2) Chest, right, anterior aspect, 2.5. cm. from anterior midline, level of the 3rd ICS along parasternal line, oriented obliquely, elliptical in shape, 1.0 cm. in size, edges clear cut, both extremities sharp, directed backwages, upwards and from right to left, penetrating the thoracic cavity thru the 3rd ICS along parasternal line, perforating upper lobe of right lung, thru the right auricle of heart, with an approximate depth of 11 cm.; (3) Chest, left, anterior, 2.3 cm. from another median line, level of the 4th rib along left parasternal line, oriented obliquely, 0.8 cm. in size, elliptical in shape, edges clear cut, both extremities sharp. Directed backwards, upwards and medially involving only skin and soft tissues, non-perforating, with an approximate depth of 2.5 cm.; (4) Back, intrascapular region, left, 6.0 cm. from posterior midline, level of the 5th ICS, oriented almost vertically, 0.8 cm. in size; elliptical, edges clear-cut both extreties sharp, directed forwards, upwards and medially, involving only skin and soft tissues, non-perforating, with an approximate depth of 3.0 cm.; (5) Back, right, vertebral region, 2.0 cm. from posterior median line, level of the ICS, along right paravertebral line, oriented obliquely, 1.0 cm. in size, elliptical, edges clear-cut, both extremities sharp, directed forwards slightly upwards and medially, involving skin and soft tissues, non-perforating, with an approximate depth of 3.0 cm.; (6) Back, infrascapular region, right, 10.5 cm. from posterior median line, level of the 7th ICS along midscapular line, oriented horizontally, 0.8 cm. stellate in shape, edges

clear-cut, extremities are sharp, directed forwards, upwards and slightly penetrating the thoracic cavity thru the 7th ICS, perforating the lower lobe of lung, right, with an approximate depth of 10. cm.; Punctured wounds: (1) Chest, right, anterior aspect, 3,0 cm. from anterior midline, level of the 2nd rib along parasternal line, 0.3 x 0.2 cm. in size, roughly oval in shape, directed backwards, downwards and medially involving only skin and soft tissues, nonperforating, with an approximate depth of 2.0 cm. (2) Back, scapular region, right side, 7 in number, dispersed in an area of 18 x 14 cm.; average size of which is 0.6 cm. an directed forwards, slightly upwards and medially, non-perforating, with an appropriate depth of 2.0 cm. Meningeal hemorrhage subarachnoidal, parietal lobe, bilateral minimal. Hemothorax left, 600 cc.; right, 1000 cc. Brain and visceral organs, pale. Heart contains dark fluid blood. Stomach contains small amount of yellowish fluid materials.
CAUSE OF DEATH: Stab wounds of chest and back. Skull fractured with meningeal hemorrhage, traumatic, contributory. 7

The other victim, Mrs. Caroline Butler, who was shot with a shotgun, suffered gunshot wounds in vital parts of her body, which injuries would have been sufficient to cause her death were it not for the timely and able medical attendance of her doctor. 8 Mate went to the house of Mr. Juan Dizon at Pulong Bato, Botolan, Zambales, where he stayed the night of November 1, 1971. At about 3:00 a.m. of November 2,1971, Mr. Dizon woke up Mate and brought him to Sitio Paitan, because Mate would be arrested by the BSDV. In a small hut at Sitio Paitan, Mate was arrested by the PC.9 Capt. Roman P. Madella of the 162nd PC stationed at Iba, Zambales, led the group that apprehended Mate. they recovered money from Mate tot he amount of P13,553.00. A shotgun was also recovered. 10 When investigated, Mate voluntarily made his extra-judicial statements contained in Exhibit "A". 11 On November 3, 1971, Investigator Catalino Manipon of the CIS investigated mate. Mate again voluntarily gave his extra-judicial statements contained in Exhibit "B". 12 In Exhibit "B", Mate revealed the brown suitcase he brought to the Butler residence containing things needed to commit the crime. He also revealed his well prepared plan to kidnap the children of the Butlers for ransom. 13 Police Investigator Manolo Dizon crroborated Mate's confession about the brown suitcase containing things to be used in the crime when Dizon testified that said brown suitcase, together with its contents, was recovered from the scene of the crime. 14

Before Patrolman Remy Macaspac of the Makati Police Force, Mate again voluntarily executed his extra-judicial confession Exhibit "J". 15 Exhibit "J" contains detailed narration of how the crime was planned and committed, and its contents substantially are in harmony with the narration of Exhibits "A" and "B". Long after the accused Mate had been convicted by the trial court in this case in 1971, he testified on May 7, 1973 as witness for the prosecution agaist his co-accused in the crime, Albino Bohol. Mate affirmed the same narrations of events contained in his extra-judicial confessions Exhibits "A", "B" and "J", and even elaborated on them. 16 The defense contends that the trial court committed a serious error in rendereing judgment of conviction immediately after Mate had pleaded guilty to the crime charged on the basis of his plea of guilty and before receiving any evidence. While the trial court committed an error in rendering judgment immediately after the accused had pleaded guilty, and, tereafter, conducted hearings for the reception of the evidence for the prosecution, such an irregularity, is insufficient to justify the setting aside fo the judgment of conviction, considering that it is supported by the judicial and extrajudicial confessions of the accused and by other evidence. Thus, in the of People vs. Dumdum, 17 this Court held: The trial court committed an irregularity in pronouncing judgment on the two accused in open court immediately after they had pleaded guilty and then later on requiring the prosecution to present evidence.
However, the irregularity does not justify the setting aside of the judgment of conviction which is supported by the judicial and extra-judicial confessions of the accused and other evidence. 18

The defense questions also the failure of the state prosecutor Cornelio Melendres to make a formal offer of his exhibits, although they have been marked and identified. Such an oversight appears trivial because the entire evidence for the prosecution is recorded. Even without the exhibits which have been incorporated into the records of the case, the prosecution can still establish the case because the witnesses properly identified those exhibits and their testimonies are recorded. Exhibits "A", "B", and "J" are all admissible against Mate because it appears with clarity that he voluntarily and spontaneously gave those narrations without compulsion from anybody, In fact, ... when he testified against Been Bohol he affirmed those narrations again. This Court cannot give much credence to the possible mental aberration or abnormality of the accused Mate just because he narrated with elaborate details the execution of the crime. On the contrary, We believe that the narration of the accused showed he possesses above average intelligence and a rather keen recollection. Mate even described how he planned to commit the crime, reciting the details in a thorough manner. His actual execution of the crime and manner of escape showed cunning and perception. The argument that no sane person would voluntarily confess to a crime realizing that he would surely face death, deserves but scant consideration, for if We give weight to the same, all voluntary confessions should be presumed as emanating from insane persons, contrary to the general presumption of sanity of a person. The conscience of a man can overwhelm his love of life. WHEREFORE, the decision of conviction being in accordance with law and the evidence, is hereby AFFIRMED in its entirety, with costs.

SO ORDERED. Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur. Fernando, CJ., took no part.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 116149 November 23, 1995 ELVIRA MATO VDA. DE OATE, substituted by her heirs MARIA MATO-ALAMEDA, AIDA MATO, ZOE MATO, PACITA MATO and JUAN MATO II, petitioners, vs. THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents.

KAPUNAN, J.: Petitioners challenge the decision of the trial court, as affirmed by respondent court, for lack of basis. They argue that the lower court and the Court of Appeals erred in considering evidence not formally offered by private respondent in accordance with the Rules of Court. The controversy involves Lot No. 1571, a riceland located at Toran, Aparri, Cagayan covered by Transfer Certificate of Title No. T-5168. On January 10, 1980, an action for specific performance with damages was filed in the then Court of First Instance of Cagayan, Branch II by Eulalia Marcita Taguba in her capacity as administratrix of the estate of the deceased Leonor Taguba against Elvira Mato Vda. de Oate. As the trial court found, the deceased Leonor Taguba bought the subject parcel of land from Elvira Mato Vda. de Oate sometime in 1976 for a consideration of P5,000.00 payable in four (4) installments. Accordingly, she paid P2,250.00 on January 20, 1976, 1 P750.00 on February 23, 1976, 2 P1,000.00 on March 20, 1976 3 and P1,000.00 on July 29, 1976. 4 After full payment was made on July 29, 1976, the parties however failed to reduce their contract in writing. On December 30, 1976, Leonor Taguba died. The instant complaint was filed when demand was made upon Elvira Mato Vda. de Oate to execute a public document of sale in favor of the deceased and her heirs and she refused. The trial court rejected the petitioners' defense that Elvira Mato Vda. de Oate contracted a verbal loan from Leonor Taguba in the amount of P12,000.00 payable within a period of 4 years with 12%

interest. Also disbelieved was the allegation that two (2) parcels of land covered by TCT No. 5167 and TCT No. 5168 (the land in dispute) were mortgaged by Elvira Mato Vda. de Oate to Leonor Taguba as security for the payment of the loan and that only P5,000.00 of the P12,000.00 loan was given by Taguba. On July 12, 1990, the trial court rendered judgment, the dispositive portion of which reads: WHEREFORE judgment is hereby rendered as follows: 1. Declaring the agreement between the late Leonor Taguba and deceased defendant Elvira Mato Vda. de Oate entered into on 20 January 1976, as a contract of "to sell"; 2. Ordering the defendants to execute the proper document to give effect to the contract within thirty (30) days, otherwise, this Court shall be forced to order the cancellation of the certificate of title covering Lot No. 1571 of the Aparri Cadastre, and the Register of Deeds of Cagayan to issue another certificate of title in the name of the Estate of Leonor Taguba; 3. Ordering the plaintiff to prosecute their money claims against deceased defendant's estate in accordance with Section 21, Rule 3 of the Rules of Court. Costs de oficio.
SO ORDERED. 5

Petitioners appealed to respondent Court of Appeals faulting the trial court's factual findings. They contended that the trial court erred when it took cognizance of the plaintiff's evidence, particularly Exhibits "F," "F-1," "F-2" and "F-3", which had been marked but never formally submitted in evidence as required by the Rules of Court. Consequently, it was claimed that the trial court erred in relying on the said evidence in deciding for private respondents. On December 13, 1993, respondent court affirmed the decision of the trial court. 6 In sustaining the lower court, the respondent court held that Exhibits "F, "F-1," "F-2" and "F3" though not formally offered, may still be admitted in evidence for having complied with the two (2) requisites for admission enunciated in our jurisprudence, 7 that is, (1) evidence must be duly identified by testimony duly recorded and (2) it must be incorporated in the records of the case. A motion for reconsideration of said decision was denied for lack of merit on June 13, 1994. 8 Hence, the present petition for review. Petitioners ascribe to the respondent court the following errors, to wit: THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT DOCUMENTS WHICH ARE MARKED AS EXHIBITS BUT NOT FORMALLY OFFERED ARE NOT TO BE CONSIDERED BY THE COURT;
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT SINCE THERE WAS NO FIXED PURCHASE PRICE OF THE LAND AGREED UPON BY THE PARTIES, SPECIFIC PERFORMANCE COULD NOT BE AVAILED BY THE BUYER TO FORCE THE OWNER OF THE LAND TO EXECUTE A DEED OF SALE. 9

Section 35 (now Section 34) of Rule 132 of the Rules of Court provides: Sec. 35. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. From the foregoing provision, it is clear that for evidence to be considered, the same must be formally offered. Corollarily, the mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence of a party. In Interpacific Transit, Inc. v. Aviles, 10 we had the occasion to make a distinction between identification of documentary evidence and its formal offer as an exhibit. We said that the first is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit while the second is done only when the party rests its case and not before. A party, therefore, may opt to formally offer his evidence if he believes that it will advance his cause or not to do so at all. In the event he chooses to do the latter, the trial court is not authorized by the Rules to consider the same. However, in People v. Napat-a 11 citing People v. Mate, 12 we relaxed the foregoing rule and allowed evidence not formally offered to be admitted and considered by the trial court provided the following requirements are present,viz.: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case. In the case at bench, we find, as respondent court did, that these requisites have been satisfied. The evidence in question refers to Exhibits "F," receipt for P2,250.00 dated January 20, 1976; "F-1," receipt for P750.00 dated February 23, 1976, "F-2," receipt for P1,000.00 dated March 20, 1976; and "F-3," receipt for another P1,000.00 dated July 29, 1976, all showing the varying amounts paid by Leonor Taguba to Elvira Mato Vda. de Oate. These exhibits were marked at the pre-trial for the purpose of identifying them. In fact, the payment of P5,000.00 was admitted by herein petitioners in the same pre-trial. On March 5, 1984, Eulalia Marcita Taguba identified the said exhibits in her testimony which was duly recorded. She testified as follows: ATTY. LUCERO: Q Now, you said that the offer of P5,000.00 selling price accepted by your sister and that she paid P2,250.00 on January 20, 1976 (Exhibit "F") how about the balance on the consideration? A The amount of Seven hundred fifty (P750.00) pesos to make it Three thousand (P3,000.00) pesos was paid on February 23, 1976 and the two (2) at One thousand pesos (P1,000.00) were paid on March 20, 1976 and July 29, 1976, ma'am. COURT: Was that admitted by the other party? ATTY. LUCERO: May we put it on record that the amount of P750.00 was paid by Miss Leonor B. Taguba on February 23, 1976, Your Honor.

COURT:
First receipt is P2,250.00. 13

xxx xxx xxx ATTY. LUCERO: The receipt for the amount of Two Thousand two hundred fifty (P2,250.00) pesos be marked as Exhibit "F", Your Honor. COURT:
Mark it as Exhibit "F." 14

ATTY. LUCERO: May we request Your Honor that the amount of 750.00 receipt be marked as Exhibit "F-1" dated February 23, 1976; Exhibit "F-2" is the receipt for P1,000.00 paid on March 20, 1976; all in all, the amount is P5,000.00 including Exhibit "J" or rather Exhibit "F-3" which is the amount of P1,000.00 and was paid apparently on July 29, 1976 as partial payment for the parcel of land covered by TCT No. 5167 (sic),Your Honor. xxx xxx xxx COURT: Q Will you look at Exhibit "F3" and tell the Court if you know this Exhibit and why do you know this? A This was the receipt prepared by my sister paid to Elvira M. Vda. de Oate the amount of One thousand (P1,000.00) pesos as the payment of the land she purchased. Q Why do you say that the same receipt was prepared by your late sister Leonor Taguba?
A Yes ma'am because I was present when she made that receipt. 15

Likewise, extant from the records is the witness' explanation of the contents of each of the said exhibits. Also telling is petitioners' counsel vigorous cross-examination of the said witness who testified on the exhibits in question. 16 Herein subject exhibits were also incorporated and made part of the records of this case. 17 Finally, petitioners' allegation that an action for specific performance cannot be availed of in this case because the parties did not agree on a fixed price is likewise devoid of merit. Private respondent's evidence and testimony remain unrebutted that the contract price for the parcel of land in question is P5,000.00.

WHEREFORE, finding no reversible error on the part of respondent court, the decision appealed from is hereby AFFIRMED in toto. SO ORDERED. Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-65228 February 18, 1985 JOJO PASTOR BRAVO, JR., ETC., petitioner, vs. HON. MELECIO B. BORJA, ET AL., respondents.

PLANA, J.: In the Regional Trial Court of Naga City, petitioner Jojo Pastor Bravo, Jr., is charged with murder for the killing of one Ramon Abiog (Criminal Case No. 83-184). Detained in the city jail of Naga after his arrest, petitioner filed a motion for bail based on two reasons: (a) that the evidence against him is not strong in view of the retraction by Ferdinand del Rosario, one of the prosecution witnesses, of his previous statement naming petitioner as the assailant; and (b) that he is a minor of 16 years, entitled as such to a privileged mitigating circumstance under Article 68 of the Revised Penal Code which would make the murder charge against him non-capital. After a hearing during which the retracting witness (del Rosario) presented by petitioner made another turn-about and declared against the latter, respondent Judge Melecio B. Borja denied the motion for bail on the finding that the evidence of petitioner's guilt is strong and his minority was not proved. Petitioner then filed a motion for reconsideration stating that his minority had been proved by his birth certificate which was attached to the memorandum in support of his motion for bail, showing that he was born on February 26, 1967, that his minority had never been challenged by the fiscal, and that the offense charged, as regards petitioner, is not capital because even if convicted, he could not be sentenced to death because of his minority. Again, attached to the motion for reconsideration was a duly certified copy of petitioner's birth certificate. The Fiscal opposed the motion on the ground that the evidence of guilt is strong, but did not contest the minority of petitioner. In his order of September 21, 1983, respondent Judge denied the motion for reconsideration. Failing in his bid for bail, petitioner then filed a motion with the lower court praying that he be placed in the care and custody of the Ministry of Social Services and Development (MSSD) pursuant to Article 191 of Presidential Decree No. 603 (Child and Youth Welfare Code) which provides:

Care of Youthful Offender Held for Examination or Trial. A youthful offender held for physical and mental examination or trial or pending appeal, if unable to furnish bail, shall from time to time (sic) of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance. to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. On September 22, 1983, respondent judge denied the motion for lack of merit. Explaining the denial later, he said that the quoted Article 191 is not applicable since it could be invoked only where the minor is charged with a bailable offense, as could be gleaned from the phrase "if unable to furnish bail." On September 22, 1983, the NBI Regional Office at Naga City submitted its report, copy of which was sent to the City Fiscal of Naga. It found that it was the prosecution witness, Ferdinand del Rosario, and not the petitioner, who killed the deceased Ramon Abiog. When the murder case was next called for hearing on October 19, 1983, the defense unilaterally moved orally that the trial of petitioner be reset in order to give the City Fiscal more time to study the NBI report, but the motion was denied as dilatory. Again, on November 2, 1983, petitioner unilaterally filed with the trial court a formal Motion for Reinvestigation praying "that the proceedings be suspended and that the City Fiscal of Naga be ordered to reinvestigate this case." It does not appear what action, if any, the court has taken on this motion. Neither does it appear that the City Fiscal of Naga has taken any move to reinvestigate the case. Against this factual backdrop, petitioner has filed the instant petition for certiorari and mandamus, with two supplementary petitions, seeking the release of petitioner on bail or his transfer to the custody of the MSSD pending trial pursuant to Article 191 of PD No. 603. In view of the aforesaid NBI report, the petition also seeks the issuance of a writ of mandamus commanding respondent Judge to remand the case to the City Fiscal of Naga for reinvestigation. The first question to be resolved is whether petitioner is entitled to bail as a matter of right. Under the Constitution, "all persons, except those charged with capital offenses when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties." (Article IV, Section 18.) Generally, therefore, bail is a matter of right before conviction, unless the accused is charged with a capital offense and the evidence of guilt is strong. The charge against petitioner is murder qualified by treachery and attended by two aggravating circumstances: evident premeditation and nocturnity. Punishable by reclusion temporal in its maximum period to death, the crime is therefore a capital offense. The petitioner however submits that even assuming that the evidence of guilt against him is strong, the charge of murder, as to him who is only 16 years old, cannot be capital because the death penalty cannot be imposed on account of his minority which entitles him to a penalty reduction of one degree. In effect, under petitioner's submission, the test to determine whether the offense charged is capital, is the penalty to be actually imposed on him in view of the attendant circumstances.

Petitioner's posture hardly finds support in the law. Under Section 5 of Rule 114 of the Rules of Court, a capital offense is "an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished by death." It is clear from this provision that the capital nature of an offense is determined by the penalty prescribed by law, with reference to which it is relatively easy to ascertain whether the evidence of guilt against the accused is strong. Moreover, when the Constitution or the law speaks of evidence of guilt, it evidently refers to a finding of innocence or culpability, regardless of the modifying circumstances. To allow bail on the basis of the penalty to be actually imposed would require a consideration not only of the evidence of the commission of the crime but also evidence of the aggravating and mitigating circumstances. There would then be a need for a complete trial, after which the judge would be just about ready to render a decision in the case. As perceptively observed by the Solicitor General, such procedure would defeat the purpose of bail, which is to entitle the accused to provisional liberty pending trial. Nevertheless, where it has been established without objection that the accused is only 16 years old, it follows that, if convicted, he would be given "the penalty next lower than that prescribed by law," which effectively rules out the death penalty. The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be a minor who by law cannot be sentenced to death. But respondent judge claims that petitioner has not proved his minority. This is inaccurate. In his motion for bail, petitioner alleged that he was a minor of 16 and this averment was never challenged by the prosecution. Subsequently, in his memorandum in support of the motion for bail, petitioner attached a copy of his birth certificate. And finally, after respondent Judge had denied the motion for bail, petitioner filed a motion for reconsideration, attaching thereto a certified true copy of his birth certificate. Respondents Judge however refused to take cognizance of petitioner's unchallenged minority allegedly because the certificate of birth was not offered in evidence. This was error because evidence of petitioner's minority was already a part of the record of the case. It was properly filed in support of a motion. It would be a needless formality to offer it in evidence. Respondent Judge therefore acted with grave abuse of discretion in disregarding it. Evidence on motion. When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rules of Court, Rule 133, Section 7.) It results that petitioner is entitled to bail as a matter of right, which makes it unnecessary to decide whether he, being a minor, is entitled to be placed pending trial in the care and custody of the MSSD pursuant to Article 191 of P.D. No. 603. Turning to the reinvestigation aspect of the petition, the plea therefor must be addressed to the City Fiscal of Naga, who has direction and control of the criminal prosecution and who is the primary official called upon to evaluate the evidence, ascertain the existence of a prima facie case and determine who should be criminally indicted. In case of unjustified refusal by the City Fiscal to conduct a reinvestigation, the proper recourse is to appeal to the Minister of Justice who exercises control and supervision over fiscals.

WHEREFORE, the orders of respondent Judge denying bail to petitioner are set aside. In the interest of dispatch, bail for petitioner is fixed at P15,000.00 and his release is ordered upon the posting thereof and its approval by the trial judge, unless petitioner is held for some other cause. The petition for mandamus to compel reinvestigation of the case is denied. This decision is immediately executory. SO ORDERED. Teehankee (Chairman), Gutierrez, Jr., De la Fuente and Alampay, JJ., concur. Melencio-Herrera, J., concur in the result.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-53401 November 6, 1989 THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs. HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents. Herman D. Coloma for petitioner. Glicerio S. Ferrer for private respondents.

PARAS, J.: Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion: WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo) Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four or five blocks away. When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric post. In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound. At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he

went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there. Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.). In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collectorinspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. As a public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them. Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan. A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased (Exhibits C-1 and C2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit. Had the

deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo) An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision. In this petition for review the petitioner assigns the following errors committed by the respondent CA: 1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of theres gestae. 2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan. 3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of "assumption of risk" in the present case to bar private respondents from collecting damages from petitioner company. 4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of fact of the trial court. 5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions. 6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner company. 7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo) Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo). But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo). Furthermore the CA properly applied the principle of res gestae. The CA said: Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to discredit the testimonies of these two young ladies. They were one in the affirmation that the deceased, while wading in the waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were stopped by the sight of an electric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that the water was grounded. These bits of evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo) For the admission of the res gestae in evidence, the following requisites must be present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the satisfaction of said requisites in the case at bar. The statements made relative to the startling occurrence are admitted in evidence precisely as an exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous utterances are more convincing than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo

Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We considered part of the res gestae a conversation between two accused immediately after commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563). While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waistdeep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a circumstance, it is undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same contingency could have experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay." Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to the submission that the statement must be one of facts rather than opinion, We cannot agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout was a translation of an actuality as perceived by him through his sense of touch. Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination: Q. And that Erning de la Cruz, how far did he reach from the gate of the house? A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972) The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its case. However, due to reasons known only to petitioner, the opportunity was not taken. Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA acted correctly in disposing the argument that petitioner be exonerated from liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not said eventuality which directly caused the victim's death. It was through the intervention of petitioner's negligence that death took place. We subscribe to the conclusions of the respondent CA when it found: On the issue whether or not the defendant incurred liability for the electrocution and consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which defendant usually adopts to

prevent hazards to life and limb. From these testimonies, the lower court found "that the electric lines and other equipment of defendant corporation were properly maintained by a well-trained team of lineman, technicians and engineers working around the clock to insure that these equipments were in excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of theemergency situation brought about by the typhoon. The lower court made a mistake in assuming that defendant's employees worked around the clock during the occurrence of the typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. onJune 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.) In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be inconstant vigil to prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that defendant did that. On the contrary, evidence discloses that there were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo) Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to the general public"... considering that electricity is an agency, subtle and deadly, the measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649). Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave

the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166). But petitioner assails the CA for having abused its discretion in completely reversing the trial court's findings of fact, pointing to the testimonies of three of its employees its electrical engineer, collectorinspector, lineman, and president-manager to the effect that it had exercised the degree of diligence required of it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of the lower court ... was based on what the defendant's employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were 'burns', and there was nothing else in the street where the victim was wading thru which could cause a burn except the dangling live wire of defendant company" (supra). "When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming the negligence of petitioner. To aggravate matters, the CA found: . . .even before June 28 the people in Laoag were already alerted about the impending typhoon, through radio announcements. Even the fire department of the city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current were noted because "amperes of the switch volts were moving". And yet, despite these danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)

From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings but tediously considered the factual circumstances at hand pursuant to its power to review questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129). In considering the liability of petitioner, the respondent CA awarded the following in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45. The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case being a mere product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted where the action was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110). WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual damages be increased to P48,229.45 is hereby AFFIRMED. SO ORDERED. Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 128568 April 9, 2003

SPOUSES REYNALDO ALCARAZ and ESMERALDA ALCARAZ, petitioners, vs. PEDRO M. TANGGA-AN, MENAS R. TANGGA-AN, VIRGINIA III YVETTE R. TANGGA-AN, CECIL T. VILLAFLOR, HERMES R. TANGGA-AN, VENUS R. TANGGA-AN, JUPITER R. TANGGA-AN, YVONNE T. FRI, VIVIEN R. TANGGA-AN and HON. JUDGE P. BURGOS and THE COURT OF APPEALS, respondents. CORONA, J.: Before us is a petition for review of the decision1 dated January 10, 1997 of the Court of Appeals2 affirming the decision3 dated June 26, 1995 of the Regional Trial Court (RTC) of Cebu City, Branch 17, which in turn upheld the decision4 dated January 5, 1995 of the Municipal Trial Court

(MTC) of Cebu City, Branch 2, ordering the ejectment of the petitioner spouses from the house they were renting from respondents. On October 4, 1994, respondents Pedro Tangga-an, Menas Tangga-an, Virginia III Yvette Tanggaan, Cecil Villaflor, Hermes Tangga-an, Venus Tangga-an, Jupiter Tangga-an, Yvonne Fri and Vivien Tangga-an filed a complaint for unlawful detainer, with damages, docketed as Civil Case No. R33928, against petitioner spouses Reynaldo Alcaraz and Esmeralda Alcaraz. The complaint alleged that the late Virginia Tangga-an (the spouse of respondent Pedro Tangaa-an and mother of the rest of the respondents) leased a residential building (house) located at Premier Street, Hipodromo, Cebu City to the petitioner spouses. The lease contract was limited to the use and occupancy of the said residential building and did not include the lot on which it was constructed because the said lot was then owned by the National Housing Authority (NHA). Under the contract, the petitioner spouses bound themselves for five years to pay Virginia a monthly rental of P4,000 beginning November 22, 1991. However, since November 1993, they failed to pay rent. Thus, as of October, 1994, they were in arrears in the amount of P48,000. Despite repeated demands by respondents to pay the rentals in arrears and to surrender the possession of the residential building, the petitioner spouses refused to vacate the same. Respondents sought to repossess the property for their own use and benefit. On the other hand, the petitioner spouses alleged that, on July 23, 1993, the ownership of the lot on which the house stood was transferred by the NHA to Virgilio and Angelita D. Tangga-an. Virgilio Tangga-an is the son of the late Virgilia Tangga-an and respondent Pedro Tangga-an, and the brother of the other respondents. Transfer Certificate of Title No. 125657 was consequently issued in the name of Virgilio Tangga-an. According to the petitioner spouses, the subsequent change in ownership of the lot and the house resulted in the cancellation of the contract of lease between respondents and petitioner spouses. Thereafter, they paid the rent to the new owners of the lot (Virgilio and Angelita) and not to respondents since the latter supposedly no longer had the legal right to collect rentals. On January 5, 1995, the MTC rendered a decision, the dispositive portion of which read: WHEREFORE, Judgment is entered by way of preponderance of evidence in favor of plaintiffs and against the defendants, Ordering the latter to vacate the premises immediately, including all those who are occupying the subject house in relation to them; They are also jointly ordered to pay the sum of P48,000 representing rental payment in arrears from November, 1993 up to October, 1994 and to update monthly payment of P4,000 thereafter until their vacation therefrom; They are saddled to pay attorneys fees in the sum of P5,000 and litigation costs in the amount of P1,000. SO ORDERED.5 In ruling in favor of the respondents, the MTC held that the petitioner spouses clearly violated the contract of lease due to non-payment of rent. They failed to show that the subject house belonged to Virgilio alone. On the other hand, the respondents proved that, after the death of Virgilia, they registered said house in the name of their trustees, co-respondents Hermes Tangga-an and his wife. Furthermore, considering that Virgilios claim of ownership over the lot was the subject of a pending litigation for annulment of deed of sale and reconveyance of property involving the Tangga-ans, the MTC ruled that it "cannot usurp to pass judgment on the issues, as well as the conflicting claims of the parties therein."6 On appeal, the RTC affirmed the decision of the MTC, and held that:

xxx [D]efendants failed to present any documentary evidence modifying or amending the contract of lease (Annex "C", complaint) to justify the transfer of payment of the monthly rental to Virgilio Tanga-an who claims only as the registered owner of the lot on which the leased house is located. It appears that Virgilio Tanga-an does not possess any proof of ownership of the rented house. Clearly, defendants had violated the lease agreement executed between them and the deceased lessor Virginia R. Tangga-an (sic) the predecessor in interest of Hermes Tangaa-an and his wife as shown in the Tax Declaration of the said spouses (Annex "A", complaint) whose name appears under the space for previous owner by stopping payment of rental to the present owner despite the existence of the contract of lease which expires on November 22, 1996. The law on contracts basically states: "Obligations arising fro contracts have the force of law between the contracting parties and should be complied with in good faith." (Article 1159, New Civil Code of the Philippines). xxx xxx xxx7

In denying the petition for review and affirming the judgments of the courts a quo, the Court of Appeals ruled that: We also concur with the holding of both courts that as heirs of Virginia Tangga-an, private respondents have the right to institute the action for ejectment, in accordance with Article 487 of the Civil Code; and that the claim of petitioner that Virgilio Tangga-an owns the lot where the leased residential building stands and occupied by petitioners is still the subject of a civil action for annulment of the sale of the lot before the Regional Trial Court of Cebu. It does not follow as a matter of course that whoever owns the lot owns the building in question. Ownership of the lot cannot change the nature and ownership of the building, which belongs to the plaintiffs as heirs of the late Virginia Tangga-an through Ernest Tanggaan and his wife. Respondent court correctly reasoned out that "xxx defendants cannot hide over the cloak of Virgilio Tangga-an, his claim of ownership over the lot as far as the Court is concerned being irrelevant to this case xxx." Most importantly, the action involving the question of ownership of the lot is not a lawful ground to suspend/abate the ejectment proceeding. The rationale of the rule being that an ejecment suit involves only the issue of material possession or possession de facto (San Pedro vs. Court of Appeals, 235 SCRA 145, 150, and cases cited).8 Hence, this petition on the following assignments of error: I THE LEASE CONTRACT EXECUTED BY PETITIONERS WITH VIRGINIA TANGGA-AN, PLAINTIFFS PREDECESSOR-IN-INTEREST, COVERED NOT ONLY THE LAND, BUT ALSO THE IMPROVEMENT THEREON, INCLUDING THE BUILDING. II VIRGILIO TANGGA-AN, AS ONE OF THE HEIRS OF VIRGINIA, HAD THE SAME RIGHTS OVER THE PROPERTY AS THOSE OF THE OTHER HEIRS, THE PLAINTIFFS. HENCE, VIRGILIO MAY NOT BE EXCLUDED UNILATERALLY BY THE OTHER HEIRS IN HIS ENJOYMENT OF HIS HEREDITARY RIGHTS.

III THE REGISTRATION OF THE LAND, INCLUDING THE IMPROVEMENTS THEREON, IN THE NAME OF VIRGILIO TANGGA-AN UNDER THE TORRENS SYSTEM IS INDEFEASIBLE AND MAY NOT BE ATTACKED COLLATERALLY IN THE PRESENT ILLEGAL DETAINER CASE.9 We rule in favor of the respondents. Section 16 of the 1997 Revised Rules of Civil Procedure provides that: SEC. 16. Resolving defense of ownership. - When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. The issue of ownership is precisely what the petitioner spouses raised to justify their non-payment of rent and to resist eviction from the house they leased from respondents. Being indispensable to the resolution of the issue of possession, we herein render a provisional ruling on ownership. Petitioner spouses seek a dismissal of the case for lack of jurisdiction claiming that the only issue to be resolved is ownership over the house which is improper in an ejectment case. We disagree. The issue in the case at bar is whether the petitioner spouses, as lessees, were excused from paying the rent because of the change in the ownership of the land on which the rented house was built. The main question therefore is still the lawful possession of the subject premises by the petitioner spouses. To resolve it, a discussion of the ownership issue is necessary. The petitioner spouses insist that the courts a quo erred in not finding that Virgilio Tangga-an became the new owner not only of the lot but also of the residential house. They claim that, before she died, Virginia, the original owner of the subject house, waived and ceded her rights over the land in favor of Virgilio. The said transfer allegedly included the subject house because, pursuant to Article 440 of the Civil Code, "the ownership of the property gives the right of accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially." They also maintain that the NHA executed a deed of sale of both the house and the lot in favor of Virgilio. According to the petitioner spouses, the tax declaration over the house in the name of respondent Hermes Tangga-an, as trustee of the other respondents, was self-serving and had no probative value compared to the certificate of title over the lot in the name of Virgilio Tangga-an. We find no merit in petitioners arguments. Pursuant to Section 1, Rule 45 of the 1997 Revised Rules of Civil Procedure, a petition for review before this Court should only raise questions of law. In the absence of showing that the case falls under one of the exceptions,10 factual findings of the Court of Appeals are conclusive on the parties and not reviewable by this Court. And they carry even more weight when the Court of Appeals affirms the factual findings of the trial court. As such, this Court is not duty-bound to analyze and weigh all over again the evidence already considered in the proceedings below.11 The courts a quo were unanimous in holding that the petitioner spouses failed to substantiate their factual averment that Virgilio not only acquired the lot but also the house. After examining the records, we found nothing to disprove the facts determined by the lower courts. All the petitioner spouses presented was Virgilios uncertified xerox copy of the certificate of title over the lot. No document was ever shown evidencing cession of the subject house in Virgilios favor. Virgilios title

could not be used to prove ownership over the house built on said lot as it carried no reference at all to the house. A building by itself is a real or immovable property distinct from the land on which it is constructed12 and therefore can be a separate subject of contracts. On the other hand, the respondents proved that, as compulsory heirs of Virginia, they were the rightful owners of the subject house. They presented a tax declaration in the name of their trustees, co-respondent Hermes Tangga-an and his wife, which tax declaration sufficiently evidences their coownership and acquisition of title following the death of the decedent Virginia. We have ruled that: Although tax declarations or realty tax payment of property are not conclusive evidence of ownership, nevertheless, they are good indicia of possession in the concept of owner for no one in his right mind would be paying taxes for a property that is not in his actual or at least constructive possession. They constitute at least proof that the holder has a claim of title over the property. The voluntary declaration of a piece of property for taxation purposes manifests not only ones sincere and honest desire to obtain title to the property and announces his adverse claim against the State and all other interested parties, but also the intention to contribute needed revenues to the Government. Such an act strengthens ones bona fide claim of acquisition of ownership.13 One of the factual issues raised by the petitioner spouses concerns the alleged waiver and cession of Virginias rights over the house and lot to Virgilio. But the petitioner spouses did not mention any consideration received by Virginia for the waiver of the house, in effect making said waiver a donation thereof to Virgilio. However, in order for a donation of real property like a house to be valid, a public instrument duly signed by the donor and accepted by the donee (which acceptance must be known to the donor while alive) must be executed.14 Moreover, said donation must not impair the legitime of the forced heirs of the donor in order for the same not to be inofficious.15In the case at bar, no such public instrument was presented. Neither was it explained why said waiver did not impair the rights of the other compulsory heirs of Virginia. To support their argument that the house necessarily became Virgilios property as a result of the acquisition of the lot on which the same was built, the petitioner spouses invoke the principle that the accessory follows the principal. Being an accessory, the house is necessarily owned by the owner of the lot on which it is built. There is no need, however, to disturb and analyze the applicability of this well-entrenched principle because the petitioner spouses are estopped from raising the same. Both parties knew that their contract pertained only to the lease of the house, without including the land. The contract states: "1. That the lessor is the owner of a building of mixed materials situated at Premier St., Mabolo, Hipodromo, Cebu City."16 At the time of the perfection of the contract, the petitioner spouses, as lessees, were aware that the NHA, and not Virginia, the lessor, owned the land on which the rented house stood yet they signed the same, obliged themselves to comply with the terms thereof for five years and performed their obligations as lessees for two years. Now they assume a completely different legal position. They claim that the lease contract ceased to be effective because Virgilios assumption of ownership of the land stripped the respondents of ownership of the building. They argue that, under Article 440 of the Civil Code, Virgilios title over the lot necessarily included the house on the said lot, thus automatically canceling the contract. Section 2, Rule 131 of the Rules of Court provides as a conclusive presumption that: Sec. 2. Conclusive presumptions. The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; xxx xxx xxx

After recognizing the validity of the lease contract for two years, the petitioner spouses are barred from alleging the automatic cancellation of the contract on the ground that the respondents lost ownership of the house after Virgilio acquired title over the lot. We also note that the petitioner spouses rescinded the contract of lease without judicial approval. Due to the change in ownership of the land, the petitioner spouses decided to unilaterally cancel the contract because Virgilio supposedly became the new owner of the house after acquiring title to the lot. They alleged that there was no reason anymore to perform their obligations as lessees because the lessor had ceased to be the owner of the house. But there is nothing in their lease contract that allows the parties to extrajudicially rescind the same in case of violation of the terms thereof. Extrajudicial rescission of a contract is not possible without an express stipulation to that effect.17 What the petitioner spouses should have done was to file a special civil action for interpleader for the claimants to litigate their claims and to deposit the rentals in court. The petitioner spouses aver that their payments to Virgilio beginning November, 1993 were payments made in good faith to a person in possession of the credit, in consonance with Article 1242 of the Civil Code.18 This therefore released them from their obligation. They claim that Virgilio collected the rentals in his capacity as a co-owner. Being a son of Virginia, he was also entitled to the rent of the subject house. We disagree. Virgilio collected the rentals not as a co-owner but as the alleged sole owner of the subject house. The petitioner spouses themselves admitted that Virgilio claimed sole ownership of the house and lot. It would be incongruous for them to now assert payment in good faith to a person they believed was collecting in behalf of his co-heirs after admitting that they paid rent to Virgilio as the sole owner thereof. Hence, for violating of the terms of the lease contract, i.e., payment of rent, respondents can legally demand the ejectment of the petitioner spouses. WHEREFORE, the decision dated January 10, 1997 of the Court of Appeals is hereby AFFIRMED. With costs against the petitioners. SO ORDERED. Puno, Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

Footnotes Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 143002-03

July 17, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. CHARMIE SERVANO y GAOR, appellant. CORONA, J.: For automatic review is the joint decision1 of Branch 30 of the Regional Trial Court of the Fifth Judicial Region stationed in San Jose Camarines Sur, finding appellant guilty beyond reasonable doubt of two counts of rape and imposing upon him the death penalty in each case. Two separate informations were filed against appellant Charmie Servano charging him with two counts of rape both committed on June 13, 1998 against his daughter, Ailyn Servano. The first information alleged: Criminal Case No. T-1904 That on or about the 13th day of June, 1998 at around 9:00 o'clock in the morning at Barangay Himanag, Municipality of Lagonoy, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threats and intimidation did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his daughter, Ailyn Servano y Clores, a 12 year old girl, against her will, to her damage and prejudice. Acts Contrary to Law. The other information (Criminal Case No. T-1905) was identically worded except for the time of the commission of the offense.2 Upon arraignment, the appellant, assisted by his counsel, pleaded not guilty to both charges. Considering that the parties were the same in both cases and the incidents which gave rise thereto occurred on the same date, joint trial on the merits was conducted by the trial court. The prosecution presented three witnesses: private complainant Ailyn Servano, Dr. Roberto Enriquez and Barangay Chairman Jose Barro. It rested its case with the admission of its Exhibits "A" to "E" with submarkings for both cases. On the other hand, the defense presented the appellant, Charmie Servano, as its lone witness and rested its case without any documentary evidence. Private complainant Ailyn Clores Servano is the only daughter of appellant with his common-law wife Salome Clores. On June 13, 1998, at about 7:00 a.m., Ailyn was alone in their house in Himanag, Lagonoy, Camarines Sur, when her father, herein appellant, sexually assaulted her. He inserted his penis, although with some difficulty, into her vagina and pushed it in as she was lying down on her back. Thereafter, appellant left her alone. Meanwhile, Ailyn cooked rice and washed clothes. Around two hours later, appellant returned home and sexually assaulted her again. He went on top of Ailyn and inserted his penis into his daughter's vagina. He then left for work. Ailyn then left their house right after that to inform her half-sister Mylene of what their father had just done. The angry halfsisters proceeded to their Aunt Precy to apprise her of the incident.

On June 14, 1998, Precy reported the matter to Barangay Captain Jose Barro of Himanag. The offense being grave, the barangay captain instructed a tanod to invite appellant for interrogation. Thereafter, appellant was brought to the police station in Garchitorena. He was later transferred to the police station in Lagonoy, Camarines Sur. Ailyn executed her sworn statement3 on June 17, 1998 at Lagonoy police station. On the same date, she was examined by Dr. Jose Roberto Enriquez who issued a medical certificate4 which showed that Ailyn suffered hymenal lacerations at 3, 9 and 12 o'clock positions which were possibly inflicted only about four to ten days earlier. The defense, on the other hand, presented the appellant as its sole witness. He testified that he came down from the mountain at 10:00 a.m. on June 12, 1998 to attend a dance party in their barangay that evening. From 8:00 p.m. on June 12, 1998 until 4:00 a.m. the following day, he partook of some drinks with friends. After returning home, he lay down to rest. Later on, he felt a hand on his forehead. He pulled it towards him and, thinking that it was the hand of his paramour, he touched her organ and inserted his finger. He came to his senses when he heard his name called. Stunned, he got up and realized that it was his daughter Ailyn. He asked Ailyn's forgiveness but Ailyn rejected him and instead filed the complaints against him. On February 28, 2000, the trial court rendered its decision as follows: WHEREFORE: In Criminal Case No. T-1904, the accused Charmie Servano y Gaor is hereby sentenced to suffer the supreme penalty of death, to indemnify the private complainant Ailyn Servano [his] daughter, the sum of Seventy Five Thousand Pesos (P75,000.00) and the sum of Twenty Five Thousand Pesos (P25,000.00) as moral damages, both of Philippine Currency, and for him to pay the costs. In Criminal Case No. T-1905, the accused Charmie Servano y Gaor is hereby sentenced to suffer the supreme penalty of death to indemnify private complainant Ailyn Servano, [his] daughter the sum of Seventy Five Thousand Pesos (P75,000.00) and the sum of Twenty Five Thousand Pesos (P25,000.00) as moral damages, both of Philippine Currency, and for him to pay the costs. Pursuant to Article 47, RPC, as amended, let the whole original records of these two (2) cases be forwarded to the Honorable Supreme Court, for automatic review.5 In his brief6 before this Court, the appellant raises a lone assignment of error: THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED. In essence, appellant assails the credibility of the private complainant whose behavior, according to him, was not consistent with that of a rape victim's. He theorizes that private complainant would not have nonchalantly stayed at home to cook rice and wash clothes if indeed she had been raped. Likewise, the medical certificate did not show any spermatozoa in Ailyn's private part while the healed hymenal lacerations in her vagina, per se, did not prove sexual intercourse. Appellant insists that he merely touched his daughter's private part on the mistaken assumption that he was doing it to his paramour. Upon realizing his mistake, appellant immediately desisted and even asked for forgiveness. Appellant's obvious pretense cannot prevail over the testimony of private complainant which the trial court found to be "categorical, straightforward, detailed and consistent." When the offended party is

a young and immature girl, courts are inclined to lend credence to their version of what transpired, not only because of their relative vulnerability but also because of the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified were not true.7 More so when, as here, the private complainant was appellant's own daughter. Generally, no young woman will accuse her own father of so grave a crime as rape unless she has truly been aggrieved.8 Besides, we note that private complainant could not hold back her emotions and cried profusely at a certain point during the trial.9 It is a matter of judicial cognizance that the spontaneous crying of the victim during her testimony is evidence that speaks well of her credibility.10 She testified: Q: While you were at your house at Barangay Himanag, Lagonoy, Camarines Sur on June 13, 1998, x x x about 7:00 o'clock in the morning, tell us if there was an unusual incident that took place. A: Q: A: Q: A: Q: A: There was, sir. Tell us what that was? I was abused by my father. When you say you were abused, tell us what exactly do you mean by that? He raped me, sir. When you said you were raped, what do you mean by that? He 'what' my organ.

FISCAL SOLANO: May we translate the answer of the witness. Our translation, he made something in my vagina. ATTY. BRIONES: That is not proper, that is very leading. FISCAL SOLANO: When she said 'inano niya an sakong ari' translated into English, he made something in my vagina. ATTY. BRIONES: Very leading. COURT: What do you mean by 'ari'?

A:

The organ of my father was inserted in my organ.

ATTY. BRIONES: Again may it be put on record that the answer of the witness 'pinapasok' is a tagalog term. COURT: What organ of your father? A: His penis was inserted in my vagina.

FISCAL SOLANO: When the penis of your father was inserted inside your vagina, tell us what you felt? A: Painful, sir.

COURT: How do you know that it was inserted? A: Q: A: Q: A: It was painful and he inserted it. How did he insert it? He was pushing it in. Where? In the hole of my vagina.

ATTY. BRIONES: The witness stated the term 'butas' which is a Tagalog term, not in Bicol, meaning hole. FISCAL SOLANO: Tell us Miss Witness what was your position when your father inserted his penis inside your vagina? A: Q: A: I was lying on my back, sir. Where were you at that time? In the room where he sleeps.

Q: Now, what was also the position of your father when he inserted his penis inside your vagina as you said you were lying down? A: He was on top of me, sir.

Q: On June 13, 1998 at 7:00 o'clock in the morning, who were the persons inside the house beside yourself and your father, tell us? A: None, sir, except the two of us. xxx xxx xxx

FISCAL SOLANO: After the insertion of your father as you already well related to the Honorable Court on June 13, 1998 at 7:00 o'clock in the morning, where did your father go? A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: He went to the barrio to work. And after your father left, what did you do also, if any? He went to the barrio to work. And after your father left, what did you do also, if any? I cooked rice in our house and washed the clothes. After cooking rice and washing the clothes, what did you do if any? No more, sir. And what time did your father return on the same date? 9:00 o'clock, sir. And after your father arrived home, what happened if any, again? He did a bad thing again to me. What was that bad thing that was done to you by your father? He did again what he had done to me at 7:00 o'clock.

Q: Tell us again what did your father do when you said he repeated the same thing he did at 7:00 o'clock, what was that? A: He again inserted his organ in my organ.

ATTY. BRIONES:

Again the answer of the witness is in perfect Tagalog, 'Pinapasok niya ang kanyang ari sa aking ari.' FISCAL SOLANO: What is that organ you are referring to? A: Q: A: He inserted his penis. Where? In the hole of my vagina.

Q: And what did you feel when as you said your father inserted again his penis inside your vagina? A: Pain, sir.11

While it may be true that complainant failed to categorically declare in her testimony that appellant employed force, threat or intimidation upon her, the records, however, provide sufficient proof that force and intimidation indeed attended both acts of rape. During the trial, the prosecution produced in evidence the sworn statement12 executed and signed by the private complainant, Ailyn C. Servano, on June 17, 1998 before SPO2 Claudio B. Esmeralda, Jr. of the Lagonoy PNP Station in Camarines Sur. The sworn statement read in part: Q. When and where that incidents you are referring to happened?

A. Last June 13, 1998 in the morning at about 7:00 o'clock and 9:00 o'clock inside our residence at Himanag, Lagonoy, Camarines, Sur. Q. A. Q. A. Q. A. Q. Who was with you when these incidents happened? I was alone, sir. Did you resist when your father sexually abused you for two times? No, sir. Did you shout for help so that someone may help you? No, sir because of fear that he might harm me. Will you narrate to us in details how these incidents happened?

A. That on or about 7:00 a.m. of June 13, 1998 while I was sitting on the floor of our house at Himanag, this municipality, my father Charmie Servano suddenly cuddled (kinolkol) me then forcibly brought me to our room's hose (sic) then took off my panty and dress then pushed me towards the mat afterwhich he took off his short pant and underwear then put his body on top of mine and forcibly inserted his erected penis inside my vagina.

Q. A. Q. A. Q.

What did you feel when your father's penis entered in your vagina? I felt great pain, sir. After your father succeeded his lust (sic), what did you do if any? I fixed myself and cooked rice for our breakfast. After that what happened next, if any?

A. After cooking I ate my breakfast while my father left by going somewhere and when he returned back home at about 9:00 a.m. of that same date he again raped me. Q. A. Q. After your father raped you for the second time what did your father do? He went out of the house and proceeded to our barangay proper. How about you, did you do something?

A. I went to the house of my Ate Maileen Servano and told her what our father did to me. (emphasis supplied) xxx xxx xxx

From the foregoing, it is clear that private complainant was alone in their house when appellant suddenly cuddled (kinolkol) her. He forcibly brought private complainant inside the room where appellant undressed her beforepushing her to the mat. After undressing himself, appellant mounted private complainant and finally consummated his lust. He was apparently so gratified by his sexual perversion that, after leaving their house for a while, appellant returned to rape his hapless daughter again. In both instances, private complainant could not resist appellant's unwelcome and detestable sexual advances for fear that he might hurt her even more after having been forcibly brought inside the room and pushed to the mat to be raped. It should also be stressed that this sworn statement was identified by complainant in open court and was, in fact, offered as evidence by the prosecution as Exhibits D, D-1, and D-2. In the direct examination of the complainant, the prosecutor asked her if she made them. She was asked to confirm the truth thereof. The trial court allowed this without any objection from the defense. Complainant thus affirmed, the veracity and truthfulness of all the statements appearing therein. Further, when the prosecution made its offer of documentary evidence, the trial court admitted the same sworn statement as part of the prosecution evidence.13 Evidence in criminal cases is not limited to the declarations made in open court; it includes all documents, affidavits or sworn statements of the witnesses, and other supporting evidence. It comprehends something more than just the mere testimony of a witness.14 Thus, when a sworn statement has been formally offered as evidence, it forms an integral part of the prosecution evidence which should not be ignored for it complements and completes the testimony on the witness stand. A sworn statement is a written declaration of facts to which the declarant has sworn before an officer authorized to administer oaths. This oath vests credibility and trustworthiness on the document. The fact that a witness fails to reiterate, during trial, the contents of his sworn statement should not affect his credibility and render the sworn statement useless and insignificant, as. long as it is presented as evidence in open court. This is not to say, however, that, the sworn

statement should be given more probative value than the actual testimony. Rather, the sworn statement and the open court declarations must be evaluated and examined together in toto so that a full and thorough determination of the merits of the case may be achieved. Giving weight to a witness' oral testimony during the trial should not mean being oblivious to the other pieces of available evidence such as the sworn statement. In like manner, the court cannot give probative value to the sworn statement to the exclusion of the oral testimony. In every case, the court should review, assess and weigh the totality of the evidence presented by the parties. It should not confine itself to oral testimony during trial. In the instant case, the sworn statement of complainant contained a detailed account of the two rape incidents which made it as convincing and as persuasive as her testimony. It is likewise true that the prosecutor in this case was not able to propound questions concerning the details of the sexual assault, particularly on the use of force and intimidation by appellant. But this should not preclude resort to complainant's sworn statement in order to provide the missing details for the reason that the said sworn statement was part of the testimony of complainant Ailyn Servano and it constituted relevant and competent evidence for the prosecution. Likewise, although the testimony of complainant failed to state that the sexual act was done through force and intimidation, she, however, never declared either that appellant did not employ force and intimidation on her. Thus, she never contradicted the recitals in her sworn statement. She was merely unable to recite the exact contents of the sworn statement, specifically the fact of force and intimidation because, as earlier mentioned, the prosecutor failed to focus on this specific detail. Moreover, complainant could not be expected, on account of her young age and lack of experience, to be precise, in her testimony. The rule that an affidavit or sworn statement is inferior to testimony in open court applies only when there are discrepancies and inconsistencies between the allegations in the sworn statement and those made on the witness stand. No such conflict or contradiction exists in the instant case. Hence, the narration made in complainant's sworn statement should not be at all disregarded. It has been indubitably shown in this case that appellant used force and intimidation on his daughter and this effectively cowed her to submission. Such submissive attitude could be explained by private complainant's misfortune of growing up without a mother who abandoned her from infancy. Hence, at 44, the appellant wielded complete control and authority over his daughter. She was all alone in the house on the two occasions of rape. No directly threatening words were necessary because appellant's commanding presence and bullying behavior were too intimidating for a child like her to resist. Undoubtedly, complainant's tender age and appellant's custodial control and domination over her rendered complainant subservient to her father's lechery. Indeed, it is difficult to believe that, given a choice, a daughter will willingly submit to the sexual perversity of her father. Fear, being a state of mind, is necessarily subjective. Its determination depends on the peculiar circumstances affecting the parties in every case. Complainant's fear was particularly evident in this case. According to the social case study report15 conducted by the Department of Social Welfare and Development (DSWD) of Sorsogon, complainant was withdrawn and looked scared. It was also shown that complainant suffered tremendous physical beatings and abuses in the hands of appellant even before the alleged rape incidents happened. Appellant would inhumanely punish complainant for the small mistakes she committed. To say that complainant was afraid of her father would be an understatement, for the truth was, she dreaded him. This fear was enough for complainant to believe that, if she did not yield to the bestial demands of her father, something would happen to her at that moment or thereafter. She did not have to be intimidated in so many words and actions right at that moment in order to make her submit to his sexual desires. There was an unmistakable "learned helplessness" on the victim's part. The cumulative effects of the fear and intimidation instilled in the minds of victims of incestuous rapes cannot be tested by any hard and fast rule. They must be viewed in the light of the victim's perception and judgment not only at the time of the commission of the crime but also at the time immediately after.16

Granted that the prosecution failed to prove that appellant employed force and intimidation upon his daughter, appellant's conviction by the trial court for the crime of rape is nevertheless affirmable. We have to bear in mind that, in incest rape, the minor victim is at a great disadvantage because the assailant, by his overpowering and overbearing moral influence, can easily consummate his bestial lust with impunity. As a consequence, proof of force and violence is unnecessary unlike where the accused is not an ascendant or blood relative of the victim. Thus, the failure of the victim to explicitly verbalize, as in this case, the use of force, threat, or intimidation by the accused should not adversely affect the case of the prosecution as long as there is adequate proof that sexual intercourse did take place. Here lies the wisdom of the principle first articulated in People vs. Erardo17 and affirmed in People vs. Miranda18 where this Court emphatically held that: Indeed, in cases of incestuous rape, the accused-appellant's moral ascendancy over the victim takes the place of the force and intimidation in rape. The force and intimidation is subjective and should be viewed in the context of the victim's perception and judgment at that time of the commission of the offense. Teresita testified that she submitted herself to the father because she was afraid that he might hurt her. She noticed that her father was drunk, knowing that he had a drinking spree in their house at that time. No words of threat were necessary because her father's presence and moral ascendancy was intimidating enough for Teresita not to resist his advances. The fact that Teresita failed to put up a strong resistance or shout for help cannot be considered consent. x x x In Philippine society, the father is considered the head of the family, and the children are taught not to defy the father's authority even when this is abused. They are taught to respect the sanctity of marriage and to value the family above everything else. Hence, when the abuse begins, the victim sees no reason or need to question the righteousness of the father whom she has trusted right from the start. The value of respect and obedience to parents instilled among Filipino children is transferred into the very same value that exposes them to risks of exploitation by their own parents. The sexual relationship could begin so subtly that the child does not realize that it is abnormal. Physical force then becomes unnecessary. The perpetrator takes full advantage of this blood relationship. Most daughters cooperate and this is one reason why they suffer tremendous guilt later on. It is almost impossible for a daughter to reject her father's advances, for children seldom question what grown-ups tell them to do. The above pronouncement was also lucidly explained in the leading case of People vs. Pagdayawon19 : In a rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitute for violence and intimidation. That ascendancy or influence necessarily flows from the father's parental authority, which the Constitution and the laws recognize, support and enhance, as well as from the children's duty to obey and observe reverence and respect towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are recognized by law. Abuse of both by a father can subjugate his daughter's will, thereby forcing her to do whatever he wants. Indeed, as between a father and his daughter in incestuous sexual assault, this Court has unqualifiedly upheld the view that the former's moral ascendancy and influence over the latter sufficiently substitute for force and intimidation. Appellant's moral ascendancy over the victim satisfies the elements of force and intimidation. Evidence of force and intimidation is therefore not even necessary to secure conviction of the appellant for the crime of rape. Against the tremendous weight of evidence ranged against him, all appellant could do was put up a lame defense: the two acts of rape could not have possibly happened because the private complainant remained at home to cook rice and wash his clothes. It should be emphasized that

there is no standard form of behavior that is expected of rape victims right after they have been defiled because people react differently to emotional stress.20It is entirely possible for a rape victim to go through what psychologists describe as a "state of denial" which is a way of coping with the overwhelming emotional stress of an extremely shocking event. While in that state of denial, the victim refuses either to accept reality or to allow the occurrence to "sink in." If this happens, the accused should be the last person to take advantage of it in his defense. In any event, appellant's claim about the victim's alleged nonchalance is not true at all. The records show that private complainant did not lose time in reporting her father's dastardly act to her halfsister when he left the house after the second rape. The fact that complainant immediately told her half-sister about her nightmarish experience, after which they hurriedly went to their aunt Precy to whom they angrily and emotionally reported the matter, leaves little doubt as to the truth or veracity of the charge of rape. Appellant himself admitted that complainant could not be appeased despite his apology. In fact, she was "unforgiving." Her spontaneous conduct was an eloquent attestation of her abhorrence and repugnance to her father's perversity. Furthermore, the absence of spermatozoa is not a defense since the overriding consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.21 Moreover, while it is true that the victim's hymenal lacerations did not necessarily nevertheless acquired significance as corroborative, evidence in the light of private complainant's accusation that she was sexually abused. Appellant's claim that he merely touched the private part of his daughter on the mistaken assumption that she was his paramour, is totally beyond belief. As aptly observed by the trial court, appellant would not have committed the sexual act for the second time if his tale of mistaken identity had been true. Besides, how could he have mistaken his daughter for his paramour in broad daylight at. 7:00 o'clock and 9:00 o'clock in the morning? Ailyn bore no grudge against her father. She even admitted during the trial that she loved and trusted him until he raped her. It was thus absurd to accuse her own father of rape had it not been the truth.22 Accordingly, justice demands that appellant be made to pay for his crimes. The two informations alleged that the appellant committed the crimes of rape against his 12-year-old daughter. This Court has consistently ruled that the twin circumstances of minority and relationship are in the nature of qualifying circumstances which must be alleged in the information and proved during trial beyond reasonable doubt, otherwise, the accused should only be held liable for the crime of simple rape.23 That Ailyn was appellant's daughter was never in dispute. This was one of the admissions made by the appellant during the joint pre-trial of these cases where the parties were duly represented by their respective counsels. To prove her age, the prosecution adduced in evidence what purported to be Ailyn Servano's certificate of live birth.24 However, this document was correctly disregarded by the trial court because, aside from its belated registration,25 there were irregularities attendant to its preparation, such as the erroneous dates and names of certain persons appearing thereon. While complainant testified that she was born on January 7, 1986,26 the date of birth on her birth certificate is August 4, 1986. Also, the middle initial of the private complainant herself was written erroneously as "F" instead of "C". The name of the appellant under the space for "informant" was merely superimposed on what appeared to be that of another person.

In the absence of any other competent evidence, such as the baptismal certificate, school records or the testimony of the victim's relatives, the testimony of the private complainant was not sufficient proof of her actual age without an express and clear admission thereof by the appellant, pursuant to our ruling in People vs. Pruna.27 Since it was the prosecution that had the burden of proving the age of the offended party, the failure of the appellant to object to the testimonial evidence regarding the victim's age could not be taken against him. The prosecution failed to prove the actual age of the private complainant as alleged in the separate informations, thus the appellant should be convicted of simple rape and sentenced accordingly to reclusion perpetua in each case. Jurisprudence dictates that, upon a finding of the fact of rape, the award of civil indemnity ex delicto in the amount of P50,000 becomes mandatory. In addition, the victim Ailyn is entitled to the amount of P50,000 as moral damages, without need of proof, and another P25,000 as exemplary damages for each count of rape, to set an example for the public good.28 WHEREFORE, the judgment of the lower court is hereby AFFIRMED with the MODIFICATION that appellant Charmie Servano is found guilty of two counts of simple rape and is sentenced to suffer the penalty of reclusion perpetua for each count of rape. He is also ordered to pay for each count of rape the amount of (a) P50,000 as civil indemnity (b) P50,000 as moral damages and (c) P25,000 as exemplary damages. SO ORDERED. Puno, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Quisumbing and Sandoval-Gutierrez, JJ., on official leave.

Separate Opinions VITUG, J., dissenting: For review by the Court is the joint decision1 in Criminal Case No. T-1904 and Criminal Case No. T1905 of the Regional Trial Court, Branch 30, of San Jose, Camarines Sur, finding herein appellant Charmie Servano y Gaor guilty beyond reasonable doubt of twice committing the crime of incestuous rape against his 12-year-old daughter, and imposing upon him, for each count, the extreme penalty of death and ordering the payment to the victim of seventy-five thousand pesos (P75,000.00) civil indemnity and twenty-five thousand pesos (P25,000.00) moral damages. The two Informations that spawned the judgment under review, except for the time of the commission of each crime, are worded similarly. The Information in Criminal Case No. T-1905, charging appellant with violation of "Article 335 of the Revised Penal Code, as amended by Republic Act No. 8353," reads: "That on or about the 13th day of June, 1998, at around 7:00 o'clock in the morning at Barangay Himanag, Municipality of Lagonoy, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal, knowledge with his daughter, Ailyn Servano y Clores, a 12-year old girl against her will, to her damage and prejudice."2

The other Information, in Criminal Case No. T-1904, covers a similar infraction by appellant committed about two hours later on the same day of 13 June 1998. At his arraignment, appellant, assisted by counsel, pleaded not guilty to the charges. Ailyn, said to have been born on 7 January 1986, is the only daughter of appellant with his commonlaw wife Salome Clores. Appellant has an older daughter, Mylene, by another woman. On 13 June 1998, about seven o'clock in the morning, Ailyn was at their house in Himanag, Lagonoy, Camarines Sur, when her father, herein appellant, sexually assaulted her. He inserted his penis, although with some difficulty, into her vagina and pushed it in as she was lying down on her back. Shortly after appellant had left her alone, Ailyn cooked rice and washed clothes. Around two hours later, appellant came back home. Once again, he went on top of Ailyn and inserted his penis into his daughter's vagina. Then, he left for work. Ailyn herself left their house to see her sister Mylene and to tell her what their father had just done. The angry half-sisters went in a huff to their Aunt Precy to apprise her of the incident. The following morning of 14 June 1998, Precy reported the matter to Barangay Captain Jose Barro of Himanag. The offense being grave, the barangay captain instructed a tanod to invite appellant for questioning. With a member of the "CAFGU," the tanod brought appellant to the police station at Garchitorena; appellant was later transferred to the police station in Lagonoy. Later, Precy and the two sisters went to Ailyn's grandparents, Jose and Dioleta Servano, to also inform them of what had transpired. On 17 June 1998, Ailyn was examined by Dr. Jose Roberto Enriquez, a government physician in Lagonoy, who, after conducting the physical examination, issued a Medical Report3 to the effect that Ailyn's hymen was lacerated at the "3, 9 and 12 o'clock" positions. Dr. Enriquez explained that he used the word "recent" in the report because the lacerations, which were healing at the time of examination, had likely been inflicted only about four to ten days prior to the examination.4 The defense presented appellant, its sole witness, who claimed that he came down from the mountain at ten o'clock on the morning of 12 June 1998, in time for a dance party in the barangay. Starting at eight o'clock on the evening, of 12 June 1998 up until four o'clock the following morning, he was partaking of some drinks with friends. Upon returning home, he lay down to rest. Momentarily, he felt a hand on his forehead. He pulled it towards him and, thinking that it was the hand of his paramour, he "held" her organ and "inserted" his finger there. He came to his senses when he heard his name called. Stunned, he got up and realized that it was his daughter Ailyn. He asked Ailyn's dispensation for what had happened and for mistaking her for someone else, but she was unforgiving. The trial court convicted appellant guilty on two counts of rape and imposed on him the penalty of death for each count. It found the testimony of Ailyn to be "categorical, straight-forward, detailed, and consistent." Describing the girl to be "guileless," the trial court judge expressed that nothing appeared to him to indicate that her testimony had been fabricated.5 I also see no reason to conclude otherwise. Indeed, when the offended party is a young and immature girl, a court would be inclined, considering the relative vulnerability and the shame and embarrassment to which she would otherwise be exposed, to lend credence to her version of a sexual assault. Article 335 (now Article 266-A) of the Revised Penal Code, as amended by Republic Act No. 8353, the felony with which appellant has been charged provides: "Article 266-A. Rape; When and How Committed. Rape is committed

"1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: "a) Through force, threat, or intimidation; "b) When the offended party is deprived of reason or otherwise unconscious; "c) By means of fraudulent machination or grave abuse of authority; and "d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. "2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person." Article 266-B of the law prescribes the penalty of reclusion perpetua. When, however, 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," the law ordains that the death penalty shall be imposed. The evidence would adequately show that appellant, the father of the victim, had carnal knowledge of his own daughter. Whether or not appellant could be convicted of rape, given the two Informations filed against him and the circumstances of the case, would depend on either of two possibilities, i.e., that the victim was under twelve years of age at the time of commission of the offenses or that the carnal knowledge was through force, threat or intimidation. At the trial, Ailyn said that her grandmother had told her that she was born on 07 January 1986, which meant that on the date of the commission of the two offenses charged, Ailyn was already twelve (12) years old, five (5) months and six (6) days. The court a quo did not rely on the birth certificate of the victim, Exhibit A, which showed that Ailyn was born on 04 August 1986 and thus only eleven (11) years, ten (10) months, and nine (9) days on the date the questioned incidents took place. The trial court was not without a valid ground for discounting the birth certificate which showed that on 11 June 1998 (or just two days before the rape incidents were said to have been committed) Rene V. Gavarra, a day care worker, belatedly prepared the Certificate of Live Birth of one "Aileen F. Servano" born on 04 August 1986 in Himanag, Lagonoy, to "Salome Flores" and "Charmie Servano." Under the space for "informant," the typewritten name "Charmie Servano" was superimposed on an erased name with the surname "Castillo" still visible. Servano affixed his signature above his name apparently also on 11 June 1998. At the back portion of the same certificate, the pro forma Affidavit of Acknowledgment/Admission of Paternity would appear to have been filled up and signed on 22 June 1998 (or nine days after the rape incidents were said to have been committed) by Charmie Servano before the Municipal Civil Registrar of Lagonoy. The trial court thus correctly ignored the document. Most importantly, in order to convict appellant for statutory rape, it would not be sufficient to aver in the information that the victim was twelve (12) years old; the information must instead explicitly state that the victim was under orbelow twelve (12) years of age, at the time of commission of the offense. The trial court appropriately ruled that, since private complainant was already at least twelve (12) years of age at the time she was violated, not only must the sexual intercourse be proven but it should also be shown that force, violence, or intimidation was employed by the accused against the complainant to commit the sexual offense.

The gravamen of the offense of rape is sexual congress with a woman6 by force, threat or intimidation.7 If rape is through the use of force, violence or intimidation, it should be self-evident that it can only be committed against or without the consent of the victim.8 It is noteworthy that Republic Act No. 8353 requires at least some kind of physical overt act to manifest resistance, as well as its proof, that would indicate such lack of consent, viz: "Article 266-D. Presumptions Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of acts punished under Article 266-A." If the woman is under twelve years of age, proof of force, threat or intimidation becomes immaterial not only because vitiation of consent is not an element of statutory rape but also because the victim is, in effect, presumed by law to be incapable of free consent. If, however, the woman is twelve years of age or over at the time she is violated, it must be established that, along with proof of sexual intercourse, the sexual act is done through force, violence, intimidation or threat.9 In one case10 involving a charge of rape committed against a thirteen-year old girl, the complainant, the Court noted, merely testified that the accused had "raped" her, without going into details or explaining what exactly was done to her. The Court held that the testimony given was not evidence but a conclusion, the proof of which was the very purpose of the trial. It expounded: "Whether or not he [accused] raped her is the fact in issue which the court must determine based on the evidence offered. Testimony to that effect is not evidence, but simply a conclusion, the proof of which is the very purpose of the trial. It is not competent for a witness to express an opinion, conclusion or judgment thereon."11 Likewise, in the case of People vs. Supnad,12 citing People vs. De Leon 13 and People vs. Garcia,14 the Court acquitted the accused on three counts of rape perpetrated against his twelve year old niece on the ground that private complainant's "simple assertion that her uncle had sexual intercourse with her twice in February and once in March is clearly inadequate and grossly insufficient to establish the guilt of the accused-appellant." The Court found her testimony to be "too general as it failed to focus on material details."15 But could not the missing proof be aptly supplied by an affidavit or an extrajudicial sworn statement of the witness? In most jurisdictions, a sworn statement in criminal investigations is taken by police authorities over the incident complained of. In its usual "question and answer" form, the statement would contain an affiant's responses to the matters asked. Not too infrequently, the statements are held to be either incomplete or inaccurate, sometimes from the manner inquiries are made and sometimes from partial suggestions deliberately or casually made.16 And while it remains admissible as evidence when so identified and confirmed, its probative value, however, can hardly be equated to an open court declaration.17 Section 1, Rule 132, of the Rules of Court provides that the "examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation," and that, unless "the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally." The reason for the requirement obviously is to enable the court to judge the credibility of the witness by the manner he testifies, by his intelligence, and by his appearance.18 It is unquestionably the safest and most satisfactory method of investigating facts, and affords the greatest protection to the rights of the individual.19Section 1, Rule 133, of the Rules of

Court requires that in determining, the preponderance or superior weight of evidence on the issues involved, the court may, among other things, consider the "witnesses' manner of testifying" which can only be done if the witnesses give their testimony orally and in open court. A sworn statement is not a substitute for testimony given at and during the trial. The demeanor of a witness at the stand and in responding to questions is a matter that can prove to be invaluable in determining the credibility of the witness. The trial court must have the full opportunity to observe the behavior of the witness in all the declarations that can be significant to the case, its outcome and in decreeing judgment. It is not enough that the affiant broadly confirms the contents of the extrajudicial statement. Wigmore, an eminent authority on the rules on evidence, has said: "No one has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial."20 Truly, it is well-entrenched that the findings of the trial court bear great weight because of the vantage point it enjoys in scrutinizing the deportment of the affiant-witness; each twitch of the witnesses' muscle, the blink of the eyes, the sweating palms, or the rise and fall of the voice, as well as the varied change in behavior, could well spell the difference between truth and falsehood, and determine whether the witness can be relied on or not.21 In People v. Estenzo,22 a petition for certiorari and prohibition was filed to nullify the order of respondent judge sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses for the accused on direct examination in open court, he would file their affidavits, subject to cross-examination by the prosecution. The Court nullified the subject order, explaining thusly: "The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. 'The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or being gazed upon him, but for the purpose of cross-examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.' (5 Wigmore on Evidence, Section 1395, p. 123.). There is also the advantage to be obtained by the personal appearance of the witness before the judge, and it is this it enables the judge as the trier of facts 'to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness.'(Ibid., pp. 125126). It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. Indeed, the great weight given the findings of fact of the trial judge in the appellate court is based, upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses." In People vs. Manambit,23 the Court ruled that a judge's assessment on the credibility of the witnesses should be received with caution if he neither personally heard the testimony of the witnesses nor observed the way in which they had testified. Citing People vs. Pido,24 the Court departed from the general rule that appellate courts should not disturb the factual findings of the trial court and held that, taking into account, among other things, the fact that it was another judge who received the testimony on direct examination and the major portion of the cross-examination of the witness, the judge who ultimately decided the case could not have had sufficient basis to form an opinion on the complainant's conduct at the trial.

Verily, affidavits would ordinarily be used, not to substantiate a case, but to impeach a witness at the trial where, almost invariably, such affidavits or sworn statements would even then be held unreliable to overturn testimony before the court.25 In the cases at bar, while the trial court acknowledged in convicting appellant that no evidence was presented to establish actual force, threat or intimidation, it broadly opined, however, that the moral ascendancy and influence of the accused as a father of the victim substituted for violence, threat or intimidation. The reliance, I submit, is misplaced. The mere relationship of a father to his minor daughter is not enough to conclude the existence of "force, threat or intimidation." I still share the Court's view expressed in People vs. Chua, 26 reiterated in People vs. Pastor, 27 that the mere fact that a father exercises moral ascendancy over his daughter cannot ipso facto mean the equivalent of force, violence or intimidation, and the "presumption of moral ascendancy cannot and should not prevail over the constitutional presumption of innocence." In the recent case of People vs. Marahay,28 the accused was cleared on two (2) counts of rape committed against his twelve-year old daughter on the ground that the prosecution failed to establish the attendant circumstances that constituted rape. The Court justified its ruling thusly: "Thus, when asked what occurred on the evening of 25 August 1994, Mylene [private complainant] merely replied that her father "did the same thing" to her. When prodded to specify the acts done to her, she stated that her father "used her". No other detail was evoked from her to show the attendant elements that, constitute rape, the crime charged. Such bare statements cannot suffice to establish accused-appellant's guilt with the required quantum of evidence."29 Notably, the Court did not consider the moral ascendancy of the accused over his daughter as being a substitute for the requisite proof of actual force, violence or intimidation. I am not unaware of incestuous rape cases where the father's moral ascendancy and influence over his daughter have been considered in affirming rape convictions.30 The Court has explained thusly: This ascendancy or influence "necessarily flows from the father's parental authority, which the Constitution and the laws recognize, as well as from the children's duty to obey and observe reverence and respect towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are recognized by law. Abuse of both by a father can subjugate his daughter's will, thereby forcing her to do whatever he wants."31 A careful reading of these cases would show, nevertheless, that the records have not been not totally bereft of evidence of force, violence or intimidation exerted by the accused. Consistently, in these instances, indications are extant that the complainants have put up some physical struggle or been cowed into submission. Moral ascendancy, at best, merely reduces the degree or extent of proof ordinarily constitutive of actual force, threat or intimidation.32 There must still be sufficient indication in evidence, whether by word or by action, that force, threat or intimidation has somehow been employed. Appellant's exculpation from the offense of rape does not mean, however, that his responsibility is merely moral and not penal in character.33 Complainant's narration of facts, i.e., appellant's sexual abuse of his own 12-year old daughter twice on 13 June 1998, clearly establishes the offense of qualified seduction. This offense is the act of having carnal knowledge of a virgin over 12 years but under 18 years of age and committed by any person in public authority, a priest, house-servant, domestic, guardian, teacher or any person who, in any capacity, shall be entrusted with the education or custody of the woman, but that, if the offender is the brother or ascendant of the victim, the latter's virginity or age, becomes immaterial.34 The crime of qualified seduction has the following

elements: a) the offended party is a virgin; b) she must be over 12 and under 18 years of age; c) the offender has sexual intercourse with her; d) there is abuse of authority, of confidence or of relationship.35 If the offender is the brother or ascendant of the victim, elements (a) and (b) are dispensed with. Parenthetically, the relationship of the offender and the victim must be by consanguinity but need not be legitimate.36 While qualified seduction is not necessarily included in rape, one who is charged with rape may be found guilty of qualified seduction when the verified complaint for rape contains allegations which aver, and embodies the elements of, the crime of seduction.37 The complaint and the information in this case has sufficiently alleged those elements, i.e. that appellant has had carnal knowledge of his 12-year old daughter, Ailyn, twice on 13 June 1998 in an apparent abuse of filial relationship. The real nature of the criminal charge is determined not from the caption or the preamble of the Information nor from the specification of the law alleged to have been violated these being conclusions of law but by the actual recital of facts in the complaint or information.38 The Court, in U.S. vs. Lin San,39 has held: "From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the accused to vex the court and embarrass the administration of justice by setting up the technical defense that the crime set forth in the body of the Information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of the pleading is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense, he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, 'Did you perform the acts alleged in the manner alleged?' not, 'Did you commit a crime named murder?' If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. It is the province of the court alone to say what the crime is or what it is named. If the accused performed the acts alleged in the manner alleged, then he ought to be punished adequately, whatever may be the name of the crime which those acts constitute."40 WHEREFORE, I vote to have the judgment of the Regional Trial Court of San Jose, Camarines Sur, Branch 30, in Criminal Case No. T-1904 and Criminal Case No. T-1905 MODIFIED by convicting appellant of the crime of QUALIFIED SEDUCTION in both cases and by holding him liable accordingly. Republic of the Philippines SUPREME COURT Manila SPECIAL THIRD DIVISION G.R. No. 170583 September 12, 2007

ERNESTO M. FULLERO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court,1 petitioner Ernesto M. Fullero seeks to set aside the Decision2 dated 19 October 2005 of the Court of Appeals in CA-G.R. CR. No. 28072, affirming in toto the Decision3 dated 9 October 2003 of the Legazpi City Regional Trial Court (RTC), Branch 6, in Criminal Case No. 7712, finding petitioner guilty of falsification of public document as defined and penalized in paragraph 4, Article 171 of the Revised Penal Code. In an Amended Information4 dated 14 October 1997, petitioner was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, allegedly committed as follows: That sometime in 1988, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud, being then the Acting Chief Operator of Iriga City Telecommunications Office, while acting in said capacity and taking advantage of his official function, did then and there willfully, unlawfully and feloniously falsify and/or caused to be falsified a genuine public document, that is when he prepared his CSC 212 (Personal Data Sheet) for submission to Bureau of Telecommunication Regional Office No. 5, Legazpi City, he made it appear that he passed the Civil Engineering Board Examinations given by Professional Regulation Commission on May 30 and 31, 1985 with a rating of 75.8%; however, upon verification issued by PRC, said accused took the examination in May 1984 and another one [in] May, 1985 with general ratings of 56.75% and 56.10% respectively. When arraigned on 5 January 1998, petitioner, with the assistance of counsel de parte, pleaded "Not Guilty" to the charge.5 Thereafter, trial on the merits ensued. Culled from the records are the following facts: In 1977, petitioner was employed as a telegraph operator at the Bureau of Telecommunications Office in Iriga City (BTO, Iriga City). In 1982, he became the Acting Chief Operator of the same office until 1994.6 A Personal Data Sheet (PDS) [Civil Service Form 212] dated 8 January 1988, purportedly accomplished and signed by petitioner, states that he passed the Civil Engineering Board Examination given on 30-31 May 1985 in Manila with a rating of 75.8%.7 It appears that he submitted the PDS to the Bureau of Telecommunications Regional Office, Legazpi City (BTO, Legazpi City).8 A letter dated 7 March 1988 and signed by petitioner shows that he applied for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor with the Regional Director of the Civil Service Commission (CSC), Region 5, Legazpi City.9 Upon inquiry made by Florenda B. Magistrado (Magistrado), a subordinate of petitioner in the BTO, Iriga City, with the Professional Regulation Commission (PRC), it was verified that petitioner never

passed the board examination for civil engineering and that petitioners name does not appear in the book of registration for civil engineers.10 Petitioner denied executing and submitting the subject PDS containing the statement that he passed the 30-31 May 1985 board examination for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He claimed that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature.11 He added that the letters contained in the PDS he accomplished and submitted were typewritten in capital letters since his typewriter does not have small letters. As such, the subject PDS could not be his because it had both small and capital typewritten letters. Moreover, petitioner claimed that Magistrado had an ill motive in filing the instant case against him because he issued a memorandum against her for misbehavior in the BTO, Iriga City.12 He further argued that the RTC had no jurisdiction to try him there being no evidence that the alleged falsification took place in Legazpi City.13 After trial, the Legazpi City RTC rendered a Decision dated 9 October 2003 finding petitioner guilty of the crime of falsification. Thus: WHEREFORE, premises considered, the accused Ernesto M. Fullero is hereby found guilty beyond reasonable doubt of the crime of Falsification defined and penalized under Art. 171 (4) of the Revised Penal Code, and hereby sentences him to suffer the penalty of imprisonment of six (6) years of prision correccional maximum to ten (10) years of prision mayor medium as the maximum and to pay a fine of three thousand P3,000.00 Pesos. Costs against the accused.14 Petitioner appealed to the Court of Appeals. On 19 October 2005, the appellate court promulgated its Decision affirming in toto the assailed Legazpi City RTC Decision. The appellate court decreed: In sum, the Court finds that the prosecution has successfully established all the elements of the offense of falsification of a public document and that the trial court correctly rendered a judgment of conviction against appellant. WHEREFORE, the appeal at bench is DISMISSED for lack of merit and the appealed 09 October 2003 decision is affirmed.15 On 21 November 2005, petitioner lodged the instant petition before us citing as errors the following: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID LOWER COURT CONVICTED THE ACCUSED IN THE ABSENCE OF SUFFICIENT EVIDENCE I.E., PROOF TO SHOW THAT THE ACCUSED ACTUALLY PERFORMED THE ACT OF FALSIFICATION HE IS ACCUSED OF; II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT, EVEN ON THE ASSUMPTION THAT ACCUSED FILLED UP THE PERSONAL DATA SHEET

(PDS) INCLUDING THE STATEMENT THAT HE IS A LICENSED ENGINEER, ACCUSED WAS UNDER NO OBLIGATION TO STATE SAID DATA AND NO CRIMINAL INTENT WAS SHOWN. III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID RTC ADMITTED EVIDENCES NOT PROPERLY IDENTIFIED AND THEREAFTER CONSIDERED THE SAME IN DETERMINING THE ALLEGED GUILT OF THE ACCUSED; IV. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT THE LOWER COURT HAD NO JURISDICTION BECAUSE THE VENUE SHOULD HAVE BEEN IN THE REGIONAL TRIAL COURT OF IRIGA CITY, WHERE THE ALLEGED PERSONAL DATA SHEET WAS ACCOMPLISHED NOT IN THE RTC OF LEGAZPI CITY. Apropos the first issue, petitioner maintained that none of the prosecution witnesses actually saw him accomplish and sign the PDS; that the prosecution failed to establish that he took advantage of his position in falsifying the PDS; that a person need not be an Acting Chief Operator to be able to falsify a PDS; that he never became the custodian of the PDS nor did he have any special access to it by reason of his office; and that the identity of the person who falsified the PDS has not been established by the prosecution.16 In establishing its charge of falsification against petitioner, the prosecution presented the following witnesses, namely: Magistrado, Joaquin C. Atayza (Atayza), Romeo Brizo (Brizo), Emma Francisco (Francisco) and Edith C. Avenir (Avenir). Magistrado, a subordinate of petitioner at the BTO, Iriga City, testified that prior to the filing of the instant case against petitioner, she sued the petitioner for unjust vexation as the latter kissed her on one occasion. While the case for unjust vexation was pending, her lawyer, Atty. Mariano Baranda, Jr. (Atty. Baranda), asked her if petitioner was indeed a licensed civil engineer since some persons simply referred to petitioner as "Mr. Fullero" whereas in the BTO, Iriga City, petitioner was known as "Engineer Fullero." Suspicious of the true status of petitioner, she went to the Records Office of the BTO, Legazpi City, and requested therein if she can see petitioners PDS. Upon being shown petitioners PDS, she observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil engineer having passed the board examination for civil engineering given on 30-31 May 1985. Unconvinced of the veracity of petitioners statement in the PDS that he is a licensed civil engineer, she sought the advice of Atty. Baranda. Atty. Baranda then proceeded to the main office of the PRC in Manila to check the records of petitioner. Subsequently, Atty. Baranda obtained a certification from the PRC attesting that petitioner never passed the board examination for civil engineering. Atty. Baranda showed the said certification to her. Thereafter, she instituted the instant case against petitioner.17 Atayza, Regional Director of the PRC in Legazpi City, testified that petitioner is not registered as a board passer for the civil engineering examination given on 30-31 May 1985.18 Brizo, Human Resource Management Officer and Acting Records Officer of the BTO, Legazpi City, testified that his duty as acting records officer was to safeguard the records and files of the BTO, Iriga City, and BTO, Legazpi City. He said he personally knows the petitioner and is familiar with the

latters signature because he regularly received petitioners daily time records and other documents bearing petitioners signature. He confirmed that the signature appearing in petitioners PDS was the signature of petitioner.19 Francisco was the Officer-In-Charge of the Records Section of the PRC, Manila. She declared that petitioners name was included in the master list of examinees in the May 1984 civil engineering licensure examination where petitioner obtained a failing grade of 56.75%. She affirmed that petitioners name also appears in the list of examinees for the 30-31 May 1985 and May 1990 civil engineering licensure examinations where he got failing marks.20 Avenir was the Special Investigator III in the Legal Affairs Division of the CSC, Regional Office No. 5, Legazpi City. As the duly authorized representative of the Regional Director of the said office, Avenir brought to the court the letter of petitioner applying for the position of either Junior Telecommunications Engineer or Telecommunications Traffic Supervisor, and a certification submitted by the petitioner stating that the latter is a licensed civil engineer. Avenir stated that the letter and the certification were taken from the records of their office and that these documents were being kept as part of the records of an administrative case of petitioner with the said office.21 The prosecution also presented documentary evidence to bolster the foregoing testimonies of the prosecution witnesses, to wit: (1) a certification issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioners name is not registered in the book of registry for licensed civil engineers; (2) certifications issued by Francisco affirming that petitioner failed in the 30-31 May 1985 board examination for civil engineering;22 (3) the PDS where petitioner stated that he passed the 30-31 May 1985 board examination for civil engineering with a rating of 75.8% and which was signed by him;23 (4) certifications issued by Francisco attesting that petitioner failed the May 1990board examination for civil engineering;24 (5) transcript of stenographic notes in the perjury case filed by petitioner against Magistrado which states that, during the trial thereof, petitioner affirmed before the court hearing the case that he is a licensed civil engineer;25 (6) a letter signed and submitted by petitioner to the Regional Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed civil engineer and applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor;26 (7) an Order dated 20 December 2001 of the CSC, Regional Office No. 5, finding petitioner administratively liable for conduct prejudicial to the best interest of the service and imposing upon him a penalty of six months suspension for falsifying his PDS which is also the subject matter of the instant case;27 (8) a certification submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City, showing that he is a licensed civil engineer;28 (9) the daily time records of Magistrado signed by petitioner as the formers superior;29 and (10) other documents bearing the signature of petitioner in blue ballpen.30 On the other hand, the defense presented petitioner as its sole witness. No documentary evidence was proffered. Petitioner interposed denials and alibi to support his contentions. Petitioner denied that he executed and submitted the subject PDS containing the statement that he passed the board examinations for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He averred that the PDS he accomplished and submitted was typewritten in capital letters since his typewriter does not have small letters; thus, the subject PDS could not be his since the letters were typewritten in small and capital letters; that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature; that Magistrado had an ill motive in filing the instant case against him since he issued a memorandum against her for the latters misbehavior in the BTO, Iriga City; that he is not a licensed civil engineer; and that he accomplished a different PDS in the BTO, Iriga City.

Petitioner testified that he cannot recall the exact date when he issued the alleged memorandum against Magistrado31 and when during the trial of his perjury case against Magistrado, he claimed that he is a licensed civil engineer.32 He cannot also remember if he submitted a letter to the CSC, Regional Office No. 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor33 and the fact that he submitted therein a certification that he is a licensed civil engineer.34 The initial query to be resolved is whose evidence between the prosecution and defense is credible. Case law dictates that an accused can be convicted even if no eyewitness is available as long as sufficient circumstantial evidence had been presented by the prosecution.35 Circumstantial evidence is sufficient if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 Although none of the prosecution witnesses actually saw the petitioner falsifying the PDS, they, nonetheless, testified that that they are very familiar with the petitioners handwriting and signature. Magistrado testified that, being a subordinate of petitioner, she is very familiar with petitioners signature and actually witnessed petitioner affixing his signature on her daily time records for September 1987 to May 1988.37 Brizo testified that he is also familiar with petitioners signature because he personally knows petitioner and that he regularly received petitioners daily time records and other documents bearing petitioners signature.38 Both Magistrado and Brizo opined that the signature in the PDS belongs to petitioner. The foregoing testimonies are consistent with the documentary evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Magistrado and Brizo as trustworthy and believable. More significant are the documentary evidence consisting of petitioners signature in certain authentic instruments which are apparently similar to the signature in the PDS. The RTC and the Court of Appeals have compared petitioners signatures in Magistrados daily time records and petitioners signature in his application letter to the CSC, Regional Office No. 5, Legazpi City, with that of petitioners alleged signature in the PDS. They observed that the slant position of the writing, as well as the stroke and the last rounding loop of the signature in the PDS, does not differ from petitioners signatures in Magistrados daily time records and in petitioners application letter.39They noted that petitioners signatures in the said documents are "strikingly similar, such that through the naked eye alone, it is patent that the signatures therein were written by one and the same person." The observation of the Court of Appeals is worth noting, viz: Appellants allegation that he did not execute the subject PDS is unavailing. First, the informations entered in the PDS, such as his accurate personal data and precise employment history, are matters which only the accused could have known. Second, a visual analysis of appellants signatures in the Certificate of Arraignment and Notice of Hearing, visa-vis his signature in the PDS would show no significant disparity, leading to the conclusion that appellant himself prepared the PDS and affixed his signature therein. Third, the signature of appellant in the PDS and in the Daily Time Records (Exhibits "J" to "Q") of prosecution witness Florenda Magistrado, were glaringly identical. x x x.40

The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect if not conclusive effect.41 This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.42 In absolute disparity, the evidence for the defense is comprised of denials. Petitioner denied having accomplished and signed the PDS. He tried to impart that someone else had filled it up. However, aside from this self-serving and negative claim, he did not adduce any convincing proof to effectively refute the evidence for the prosecution. It is a hornbook doctrine that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.43 The subsequent matter to be determined is whether the elements of falsification for which petitioner is charged were proven beyond reasonable doubt. Article 171, paragraph (4) of the Revised Penal Code, provides: ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. The penalty ofprision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx 4. Making untruthful statements in a narration of facts. The elements of falsification in the above provision are as follows: a) the offender makes in a public document untruthful statements in a narration of facts; b) he has a legal obligation to disclose the truth of the facts narrated by him; and c) the facts narrated by him are absolutely false.44 In addition to the aforecited elements, it must also be proven that the public officer or employee had taken advantage of his official position in making the falsification. In falsification of public document, the offender is considered to have taken advantage of his official position when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies.45 All of the foregoing elements of falsification of public documents under paragraph 4, Article 171 of the Revised Penal Code, have been sufficiently established. First, petitioner was a public officer, being then the Acting Chief Operator of the BTO, Iriga City, when he accomplished and submitted his PDS on 4 January 1988 at the BTO, Legazpi City. It is settled that a PDS is a public document.46 He stated under Item No. 18 of his PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8%. Thereafter, petitioner submitted his PDS to the BTO, Legazpi City.

Second, in Inting v. Tanodbayan,47 we ruled that the accomplishment of the PDS being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment. Hence, the filing of a PDS is required in connection with promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.48 Petitioner was legally obliged to disclose in the PDS that he is not a licensed civil engineer since, as evidenced by his application letter, he was applying for positions to be occupied only by licensed civil engineers. Further, petitioner was also legally obliged to make truthful statements in his PDS since he affirmed therein "under the penalty of perjury" that his answers to the queries are "true and correct to the best of [his] knowledge and belief."49 Third, petitioners statement in the PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8% is absolutely false. As Officer-in-Charge of the Records Section of the PRC, Manila, Francisco declared that petitioner was included in the master list of examinees in the May 1984 civil engineering licensure examination wherein petitioner obtained a failing grade. She affirmed that petitioners name also appears in the list of examinees for the May 1985 and May 1990 civil engineering licensure examinations where petitioner also got failing marks. She also submitted certifications and authentic documents in support of her statements. Further, petitioner admitted that he never passed the board examination for civil engineering.50 Finally, as a public officer, petitioner is duty-bound to prepare, accomplish and submit his PDS pursuant to the Civil Service Rules and Regulations.51 Were it not for his position and employment in the government, he could not have accomplished the PDS. In People v. Uy,52 Santiago Uy, a field agent of the National Bureau of Investigation, was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, for making false statements in his Personal Information Sheet. We ruled therein: "[T]hat the defendant (Santiago Uy) took advantage of his position may be gathered from the fact that he himself filled the information sheet which obviously was to be submitted by each and every officer or employee of the NBI." In the same vein, petitioner also had the responsibility to prepare, accomplish and submit his PDS at the time he made a false statement therein that he is a licensed civil engineer. Hence, it is clear that petitioner took advantage of his position as Acting Chief Operator of BTO, Iriga City when he falsified his PDS. Anent the second issue, petitioner posited that being a licensed civil engineer is not a qualification for him to hold office and such is not a requirement for his promotion; that the false statement caused no prejudice to any private person as he did not have any competitor in his position nor was the government damaged by such false statement; that the false statement would not in any way redound to his benefit and, as such, no criminal intent could have impelled him to make such false claim; and that no evidence was produced showing that he had intent to cause injury. The law is clear that wrongful intent on the part of the accused to injure a third person is not an essential element of the crime of falsification of public document.53 It is jurisprudentially settled that in the falsification of public or official documents, whether by public officers or private persons, it is not necessary that there be present the idea of gain or the intent to injure a third person for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of truth as therein solemnly proclaimed.54 In falsification of public documents, therefore, the controlling consideration is the public character of a document; and the

existence of any prejudice caused to third persons or, at least, the intent to cause such damage becomes immaterial.55 The fact that the petitioners false statement in the PDS did not redound to his benefit, and that the government or any private individual was not thereby prejudiced, is inconsequential. What is clear and decisive in this case is that petitioner made an entry in his PDS that he passed the 30-31 May 1985 board examination for civil engineering despite his full awareness that such is not true. Regarding the third issue, petitioner contended that the prosecutions documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q and R and their sub-markings, are inadmissible in evidence based on the following reasons: (1) Exhibit A, which is the Certification of the PRC dated 17 January 1998, confirming that petitioners name does not appear in the registry books of licensed civil engineers, was not properly identified during the trial. The proper person to identify the certification should have been the signatory therein which was PRC Director II Jose A. Arriola, or in his absence, a person who actually witnessed the execution of the certification. Prosecution witness Atayza, who was not present when the certification was executed, had identified the certification during the trial. Thus, the contents of the certification are mere hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the PDS, does not show that it was the petitioner who prepared and submitted the PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic submission of an updated PDS. Prosecution witness Brizo does not know whether petitioners PDS was personally delivered or mailed. Hence, the identification and subsequent testimonies of the prosecution witnesses on the PDS are mere hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado where petitioner allegedly admitted that he is a civil engineer, lacks proper identification as the stenographer or records officer was not presented in court; (4) Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are merely machine copies and the loss and unavailability of their original were not proven; and (5) Exhibits J, K, L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are devoid of factual basis. Petitioners signatures in the said exhibits are, "with the use of naked eye," not the same as his signature in the PDS. The Legazpi City RTC should have submitted these documents to a handwriting expert for examination instead of relying on the testimony of Magistrado.56 Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as to what he merely learned from others either because he was told, or he read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.57 This is known as the hearsay rule. The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer.58 In other words, official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the officials attendance as a

witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer.59 Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed by Arriola, Director II of the PRC, Manila.60 Although Arriola was not presented in court or did not testify during the trial to verify the said certification, such certification is considered as prima facie evidence of the facts stated therein and is therefore presumed to be truthful, because petitioner did not present any plausible proof to rebut its truthfulness. Exhibit Ais therefore admissible in evidence. Section 3, Rule 128 of the Revised Rules on Evidence, provides that an evidence is admissible when it is relevant to the issue and is not excluded by the law or rules. Exhibit C, which according to petitioner is the machine copy of the PDS, is very relevant to the charge of falsification and is not excluded by the law or rules. It was offered precisely to prove that petitioner committed the crime of falsification by making false statements in the PDS. Further, the information specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit C would show that it is the very PDS which petitioner falsified and not a mere machine copy as alleged by petitioner. Being the original falsified document, it is the best evidence of its contents and is therefore not excluded by the law or rules.61 Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides that a transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Petitioner failed to introduce proof that Exhibit F, or the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado in which petitioner allegedly admitted that he is a civil engineer, is not what it purports to be. Thus, it is prima facie correct. Moreover, as earlier elucidated, one of the exceptions to the hearsay rule is the entries in official records made in the performance of duty by a public officer.Exhibit F, being an official entry in the courts records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness.62 Section 7, Rule 130 of the Revised Rules on Evidence, provides that when the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is the machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are certified true copies of their original documents recorded or kept in the CSC, Regional Office No. 5, Legazpi City63 and, thus, admissible to prove the contents of their originals. Exhibits J to R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are admissible in evidence since they are relevant and material to the charge of falsification against petitioner. The signatures of petitioner in the said exhibits, the authenticity of which were not denied by petitioner, were presented to prove that these signatures were similar to petitioners signature in the PDS where he made the alleged falsification. Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures.64 This is so since under Section 22, Rule 132 of the Revised Rules on Evidence, the

handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus acquired knowledge of the handwriting of such person. Moreover, the opinion of a non-expert witness, for which proper basis is given, may be received in evidence regarding the handwriting or signature of a person with which he has sufficient familiarity.65 The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the witness stand and direct the latter to examine petitioners signatures in the foregoing exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the prosecution witnesses who are familiar with petitioners handwriting/signature in determining the admissibility of the aforesaid exhibits. It can, by itself, also compare petitioners signature in the PDS with the petitioners signatures in the subject exhibits with or without the aid of an expert witness and thereafter rule on the admissibility of such exhibits based on its own observation. In short, it can exercise independent judgment as regards the admissibility of said exhibits. As to the fourth issue, petitioner argued that since none of the prosecution witnesses testified that they actually saw him fill up the PDS, then there is no evidence showing that the alleged falsification took place in Legazpi City; that when the PDS was allegedly falsified, he was stationed at BTO, Iriga City, and was a resident of Iriga City; that, even assuming without admitting that he filled up the PDS, the same was, "in all probability," filled up in Iriga City and, as such, the crime of falsification was consummated therein; that, consequently, the instant case should have been tried in the Iriga City RTC and not in the Legazpi City RTC.66 There are three important requisites which must be present before a court can acquire jurisdiction over criminal cases. First, the court must have jurisdiction over the offense or the subject matter. Second, the court must have jurisdiction over the territory where the offense was committed. And third, the court must have jurisdiction over the person of the accused.67 There is no dispute that the Legazpi City RTC has jurisdiction over the offense and over the person of petitioner. It is the territorial jurisdiction of the Legazpi City RTC which the petitioner impugns. The territorial jurisdiction of a court is determined by the facts alleged in the complaint or information as regards the place where the offense charged was committed.68 It should also be emphasized that where some acts material and essential to the crime and requisite to its consummation occur in one province or city and some in another, the court of either province or city has jurisdiction to try the case, it being understood that the court first taking cognizance of the case will exclude the others.69 In the case at bar, the information specifically and positively alleges that the falsification was committed in Legazpi City. Moreover, as heretofore discussed, the testimonies and documentary evidence for the prosecution have sufficiently established that petitioner accomplished and thereafter submitted the PDS to the BTO, Legazpi City. The foregoing circumstances clearly placed the locus criminis in Legazpi City and not in Iriga City. We find no reason to disturb the prison term and fine imposed on petitioner by the Legazpi City RTC and the Court of Appeals, as they are in accord with law and jurisprudence. WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals, dated 19 October 2005, in CA-G.R. CR. No. 28072, is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED. Ynares-Santiago, Chairperson, Austria-Martinez, Corona, Nachura, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 152375 December 16, 2011

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN (FOURTH DIVISION), JOSE L. AFRICA (substituted by his heirs), MANUEL H. NIETO, JR., FERDINAND E. MARCOS (substituted by his heirs), IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., JUAN PONCE ENRILE, and POTENCIANO ILUSORIO (substituted by his heirs), Respondents. DECISION BRION, J.: Before us is the petition for certiorari1 filed by the Republic of the Philippines (petitioner) to set aside the February 7, 2002 resolution (2002 resolution)2 of the Sandiganbayan3 denying the petitioners Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V. Bane) (3rd motion). THE ANTECEDENTS On July 22, 1987, the petitioner Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), filed a complaint (docketed as Civil Case No. 0009) against Jose L. Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio (collectively, the respondents) for reconveyance, reversion, accounting, restitution, and damages before the Sandiganbayan. The petitioner alleged, inter alia, that the respondents illegally manipulated the purchase of the major shareholdings of Cable and Wireless Limited in Eastern Telecommunications Philippines, Inc. (ETPI), which shareholdings respondents Jose Africa and Manuel Nieto, Jr. held for themselves and, through their holdings and the corporations they organized, beneficially for respondents Ferdinand E. Marcos and Imelda R. Marcos.4 Civil Case No. 0009 is the main case subject of the present petition. Victor Africa (Africa), son of the late Jose L. Africa, was not impleaded in and so is plainly not a party to Civil Case No. 0009.5 Civil Case No. 0009 spawned numerous incidental cases,6 among them, Civil Case No. 0130.7 The present respondents were not made parties either in Civil Case No. 0130. I. Civil Case No. 0130 In the August 7, 1991 PCGG-conducted ETPI stockholders meeting, a PCGG-controlled board of directors was elected. Later, the registered ETPI stockholders convened a special stockholders meeting wherein another set of board of directors was elected. As a result, two sets of ETPI board and officers were elected.8

Thereafter, Africa, as an ETPI stockholder, filed a petition for certiorari, with prayer for a temporary restraining order/preliminary injunction with the Sandiganbayan (docketed as Civil Case No. 0130), seeking to nullify the August 5, 1991 and August 9, 1991 Orders of the PCGG. These Orders directed Africa: [T]o account for his sequestered shares in ETPI and to cease and desist from exercising voting rights on the sequestered shares in the special stockholders meeting to be held on August 12, 1991, from representing himself as a director, officer, employee or agent of ETPI, and from participating, directly or indirectly[,] in the management of ETPI.9 During the pendency of Africas petition, Civil Case No. 0130, Africa filed a motion with the Sandiganbayan, alleging that since January 29, 1988 the PCGG had been "illegally exercising the rights of stockholders of ETPI,"10 especially in the election of the members of the board of directors. Africa prayed for the issuance of an order for the "calling and holding of [ETPI] annual stockholders meeting for 1992 under the [c]ourts control and supervision and prescribed guidelines."11 In its November 13, 1992 resolution, the Sandiganbayan favored Africas motion in this wise: WHEREFORE, it is ordered that an annual stockholders meeting of the [ETPI], for 1992 be held on Friday, November 27, 1992, at 2:00 oclock in the afternoon, at the ETPI Board Room, Telecoms Plaza, 7th Floor, 316 Gil J. Puyat Avenue, Makati, Metro Manila. x x x The stockholders meeting shall be conducted under the supervision and control of this Court, through Mr. Justice Sabino R. de Leon, Jr. [O]nly the registered owners, their duly authorized representatives or their proxies may vote their corresponding shares. The following minimum safeguards must be set in place and carefully maintained until final judicial resolution of the question of whether or not the sequestered shares of stock (or in a proper case the underlying assets of the corporation concerned) constitute ill-gotten wealth[.]12 The PCGG assailed this resolution before this Court via a petition for certiorari docketed as G.R. No. 10778913(PCGGs petition), imputing grave abuse of discretion on the Sandiganbayan for holding, inter alia, that the registered stockholders of ETPI had the right to vote.14 In our November 26, 1992 Resolution, we enjoined the Sandiganbayan from implementing its assailed resolution. In the meantime, in an April 12, 1993 resolution, the Sandiganbayan ordered the consolidation of Civil Case No. 0130, among others, with Civil Case No. 0009, with the latter as the main case and the former merely an incident.15 During the pendency of PCGGs petition (G.R. No. 107789), the PCGG filed with this Court a "Very Urgent Petition for Authority to Hold Special Stockholders Meeting for [the] Sole Purpose of Increasing [ETPIs] Authorized Capital Stock" (Urgent Petition). In our May 7, 1996 Resolution, we referred this Urgent Petition to the Sandiganbayan for reception of evidence and immediate resolution.16 The Sandiganbayan included the Urgent Petition in Civil Case No. 0130.17 In the proceedings to resolve the Urgent Petition, the testimony of Mr. Maurice V. Bane (former director and treasurer-in-trust of ETPI) was taken at the petitioners instance and after serving notice of the deposition-taking on the respondents18 on October 23 and 24, 1996 by way of deposition upon oral examination (Bane deposition) before Consul General Ernesto Castro of the Philippine Embassy in London, England. Invoking Section 1, Rule 24 (of the old Rules of Court), purportedly allowing the petitioner to depose Bane without leave of court, i.e., as a matter of right after the defendants have filed their answer, the

notice stated that "[t]he purpose of the deposition is for [Bane] to identify and testify on the facts set forth in his affidavit19 x x x so as to prove the ownership issue in favor of [the petitioner] and/or establish the prima facie factual foundation for sequestration of [ETPIs] Class A stock in support of the [Urgent Petition]."20 The notice also states that the petitioner shall use the Bane deposition "in evidence in the main case of Civil Case No. 0009."21 On the scheduled deposition date, only Africa was present and he cross-examined Bane. On December 13, 1996, the Sandiganbayan resolved the Urgent Petition by granting authority to the PCGG (i) "to cause the holding of a special stockholders meeting of ETPI for the sole purpose of increasing ETPIs authorized capital stock" and (ii) "to vote therein the sequestered Class A shares of stock."22 Thus, a special stockholders meeting was held, as previously scheduled, on March 17, 1997 and the increase in ETPIs authorized capital stock was "unanimously approved."23 From this ruling, Africa went to this Court via a petition for certiorari24 docketed as G.R. No. 147214 (Africas petition). We jointly resolved the PCGGs and Africas petitions, and ruled: This Court notes that, like in Africas motion to hold a stockholders meeting (to elect a board of directors), the Sandiganbayan, in the PCGGs petition to hold a stockholders meeting (to amend the articles of incorporation to increase the authorized capital stock), again failed to apply the two-tiered test. On such determination hinges the validity of the votes cast by the PCGG in the stockholders meeting of March 17, 1997. This lapse by the Sandiganbayan leaves this Court with no other choice but to remand these questions to it for proper determination. xxxx WHEREFORE, this Court Resolved to REFER the petitions at bar to the Sandiganbayan for reception of evidence to determine whether there is a prima facie evidence showing that the sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle the PCGG to vote them in a stockholders meeting to elect the ETPI Board of Directors and to amend the ETPI Articles of Incorporation for the sole purpose of increasing the authorized capital stock of ETPI. The Sandiganbayan shall render a decision thereon within sixty (60) days from receipt of this Resolution and in conformity herewith. II. Civil Case No. 0009 Although Civil Case No. 0009 was filed on July 22, 1987, it was only on November 29, 1996 and March 17, 1997 that the first pre-trial conference was scheduled and concluded.25 In its Pre-Trial Brief26 dated August 30, 1996, the petitioner offered to present the following witnesses: WITNESSES TO BE PRESENTED AND A BRIEF DESCRIPTION OF THEIR TESTIMONIES (1) Maurice V. Bane representative of Cable and Wireless Limited (C & W) at the time ETPI was organized. xxxx

(2) Mr. Manuel H. Nieto x x x (3) Ms. Evelyn Singson x x x (4) Mr. Severino P. Buan, Jr. x x x (5) Mr. Apolinario K. Medina - x x x (6) Mr. Potenciano A. Roque x x x (7) Caesar Parlade - x x x IIa. Motion to Admit the Bane Deposition At the trial of Civil Case No. 0009, the petitioner filed a Motion27 (1st motion), stating that 1. In the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos. 0048, 0050, 0130, 014628the following witnesses were presented therein: a. Cesar O.V. Parlade b. Maurice Bane c. Evelyn Singson d. Leonorio Martinez e. Ricardo Castro; and f. Rolando Gapud 2. [The petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the documentary exhibits presented and identified by them, since their testimonies and the said documentary exhibits are very relevant to prove the case of the [petitioner] in [Civil Case No. 0009]. 3. The adverse parties in the aforementioned incidents had the opportunity to cross-examine them. The respondents filed their respective Oppositions to the 1st motion;29 in turn, the petitioner filed a Common Reply30 to these Oppositions. On April 1, 1998, the Sandiganbayan31 promulgated a resolution32 (1998 resolution) denying the petitioners 1st motion, as follows: Wherefore, the [petitioners] Motion x x x is 1. partly denied insofar as [the petitioner] prays therein to adopt the testimonies on oral deposition of Maurice V. Bane and Rolando Gapud as part of its evidence in Civil Case No.

0009 for the reason that said deponents according to the [petitioner] are not available for cross-examination in this Court by the [respondents]. (emphasis added) 2. partly Granted, in the interest of speedy disposition of this long pending case, insofar as plaintiff prays therein to adopt certain/particular testimonies of Cesar O. Parlade, Evelyn Singson, Leoncio Martinez, and Ricardo Castro and documentary exhibits which said witnesses have identified in incident Civil Case Nos. xxx 0130 xxx, subject to the following conditions : 1. xxx 2. xxx 3. That the said witnesses be presented in this Court so that they can be crossexamined on their particular testimonies in incident Civil Cases xxx [by the respondents]. IIb. Urgent Motion and/or Request for Judicial Notice The petitioner did not in any way question the 1998 resolution, and instead made its Formal Offer of Evidence on December 14, 1999.33 Significantly, the Bane deposition was not included as part of its offered exhibits. Rectifying the omission, the petitioner filed an Urgent Motion and/or Request for Judicial Notice34 (2nd motion) dated February 21, 2000, with the alternative prayer that: 1. An order forthwith be issued re-opening the plaintiffs case and setting the same for trial any day in April 2000 for the sole purpose of introducing additional evidence and limited only to the marking and offering of the [Bane deposition] which already forms part of the records and used in Civil Case No. 0130 x x x; 2. In the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts established by the [Bane deposition], together with the marked exhibits appended thereto. [emphasis ours] On August 21, 2000, the Sandiganbayan promulgated a resolution35 (2000 resolution) denying the petitioners 2nd motion: Judicial notice is found under Rule 129 which is titled "What Need Not Be Proved." Apparently, this provision refers to the Courts duty to consider admissions made by the parties in the pleadings, or in the course of the trial or other proceedings in resolving cases before it. The duty of the Court is mandatory and in those cases where it is discretionary, the initiative is upon the Court. Such being the case, the Court finds the Urgent Motion and/or Request for Judicial Notice as something which need not be acted upon as the same is considered redundant. On the matter of the [Bane deposition], [its] admission is done through the ordinary formal offer of exhibits wherein the defendant is given ample opportunity to raise objection on grounds provided by law. Definitely, it is not under Article (sic) 129 on judicial notice. [Emphasis ours] On November 6, 2000 and on several dates thereafter, the respondents separately filed their respective demurrers to evidence.36 On the other hand, the petitioner moved for the reconsideration of the 2000 resolution, but was rebuffed by the Sandiganbayan in its April 3, 2001 resolution37 (2001 resolution).

IIc. Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice Bane) On November 16, 2001, the petitioner filed its 3rd Motion, seeking once more the admission of the Bane deposition.38 On February 7, 2002 (pending resolution of the respondents demurrers to evidence),39 the Sandiganbayan promulgated the assailed 2002 resolution,40 denying the petitioners 3rd motion. The Sandiganbayan ruled: But in the courts view, it is not really a question of whether or not plaintiff has already rested its case as to obviate the further presentation of evidence. It is not even a question of whether the nonappearing defendants are deemed to have waived their right to cross-examine Bane as to qualify the admission of the deposition sans such cross-examination. Indeed, We do not see any need to dwell on these matters in view of this Courts Resolution rendered on April 1, 1998 which already denied the introduction in evidence of Banes deposition and which has become final in view of plaintiffs failure to file any motion for reconsideration or appeal within the 15-day reglementary period. Rightly or wrongly, the resolution stands and for this court to grant plaintiffs motion at this point in time would in effect sanction plaintiffs disregard for the rules of procedure. Plaintiff has slept on its rights for almost two years and it was only in February of 2000 that it sought to rectify its ineptitude by filing a motion to reopen its case as to enable it to introduce and offer Banes deposition as additional evidence, or in the alternative for the court to take judicial notice of the allegations of the deposition. But how can such a motion be granted when it has been resolved as early as 1998 that the deposition is inadmissible. Without plaintiff having moved for reconsideration within the reglementary period, the resolution has attained finality and its effect cannot be undone by the simple expedient of filing a motion, which though purporting to be a novel motion, is in reality a motion for reconsideration of this courts 1998 ruling. [emphases ours] The resolution triggered the filing of the present petition. THE PETITION The petitioner filed the present petition claiming that the Sandiganbayan committed grave abuse of discretion: I. x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998 HAD BECOME FINAL. II. x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION WHICH WAS ALREADY ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO. 0130) AS PART OF PETITIONERS EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO. 0009). III. x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND IMPORTANT PIECE OF EVIDENCE FOR THE PETITIONER ON THE BASIS OF FLIMSY AND TENUOUS TECHNICAL GROUNDS. The petitioner41 argues that the 1998 resolution of the Sandiganbayan is merely an interlocutory order; thus, the petitioners failure to question this 1998 resolution could not have given it a character

of "finality" so long as the main case remains pending.42 On this basis, the petitioner concludes that the Sandiganbayans denial of its 3rd motion was plainly tainted with grave abuse of discretion. On the issue of the Sandiganbayans refusal (in its 2002 resolution) either to take judicial notice of or to admit the Bane deposition as part of its evidence, the petitioner asserts that Civil Case No. 0130 (where the Bane deposition was originally taken, introduced and admitted in evidence) is but a "child" of the "parent" case, Civil Case No. 0009; under this relationship, evidence offered and admitted in any of the "children" cases should be considered as evidence in the "parent" case. Lastly, the petitioner claims that given the crucial importance of the Bane deposition, the Sandiganbayan should not have denied its admission on "flimsy grounds," considering that: 1. It was also already stated in the notice (of the taking of the Bane deposition) that it would be used as evidence in Civil Case No. 0009. Notices having been duly served on all the parties concerned, they must accordingly be deemed to have waived their right to crossexamine the witness when they failed to show up. 2. The Bane deposition was a very vital cog in the case of the petitioner relative to its allegation that the respondents interest in ETPI and related firms properly belongs to the government. 3. The non-inclusion of the Bane deposition in the petitioners formal offer of evidence was obviouslyexcusable considering the period that had lapsed from the time the case was filed and the voluminous records that the present case has generated.43 THE RESPONDENTS COMMENTS and THE PETITIONERS REPLY In the respondents Comments44 (filed in compliance with our Resolution of April 10, 200245 ), they claim that the present petition was filed out of time - i.e., beyond the 60-day reglementary period prescribed under Section 4, Rule 65 of the Rules of Court.46 This assertion proceeds from the view that the petitioners 3rd motion, being a mere rehash of similar motions earlier filed by the petitioner, likewise simply assails the Sandiganbayans 1998 resolution. Along the same line, they posit that the petitioners 3rd motion actually partakes of a proscribed third motion for reconsideration of the Sandiganbayans 1998 resolution.47 They likewise assert, on the assumption that the 1998 resolution is interlocutory in character, that the petitioners failure to contest the resolution by way ofcertiorari within the proper period gave the 1998 resolution a character of "finality." The respondents further claim that after a party has rested its case, the admission of a supplemental offer of evidence requires the reopening of the case at the discretion of the trial court; the Sandiganbayan simply exercised its sound discretion in refusing to reopen the case since the evidence sought to be admitted was "within the knowledge of the [petitioner] and available to [it] before [it] rested its case."48 The respondents also advert to the belated filing of the petitioners 3rd motion i.e., after the respondents had filed their respective demurrers to evidence. On the petitioners claim of waiver, the respondents assert that they have not waived their right to cross-examine the deponent; the Sandiganbayan recognized this right in its 1998 resolution and the petitioner never questioned this recognition. They also assert that the allegations in the Bane deposition cannot be a proper subject of judicial notice under Rule 129 of the Rules of Court. The respondents lastly submit that the Bane deposition is inadmissible in evidence because the petitioner failed to comply with the requisites for admission under Section 47, Rule 130 of the Rules of Court.

In its Reply,49 the petitioner defends the timeliness of the present petition by arguing that a party may opt to wait out and collect a pattern of questionable acts before resorting to the extraordinary remedy of certiorari. The petitioner stresses that it filed the 3rd motion precisely because of the Sandiganbayans 2000 resolution, which held that the admission of the Bane deposition should be done through the ordinary formal offer of evidence. Thus, the Sandiganbayan seriously erred in considering the petitioners 3rd motion as a proscribed motion for reconsideration. The petitioner generally submits that the dictates of substantial justice should have guided the Sandiganbayan to rule otherwise. The petitioner also clarifies that it has not yet rested its case although it has filed a formal offer of evidence. A party normally rests his case only after the admission of the pieces of evidence he formally offered; before then, he still has the opportunity to present further evidence to substantiate his theory of the case should the court reject any piece of the offered evidence.50 The petitioner further maintains that the mere reasonable opportunity to cross-examine the deponent is sufficient for the admission of the Bane deposition considering that the deponent is not an ordinary witness who can be easily summoned by our courts in light of his foreign residence, his citizenship, and his advanced age. The petitioner asserts that Rule 24 (now Rule 23), and not Section 47, Rule 130, of the Rules of Court should apply to the present case, as explicitly stated in the notice of the deposition-taking. To date, respondents Imelda Marcos and the heirs of Potenciano Ilusorio have yet to file their respective comments on the petition. Given the time that had lapsed since we required their comments, we resolve to dispense with the filing of these comments and to consider this petition submitted for decision. THE ISSUES On the basis of the pleadings, we summarize the pivotal issues for our resolution, as follows: 1. Whether the petition was filed within the required period. 2. Whether the Sandiganbayan committed grave abuse of discretion i. In holding that the 1998 resolution has already attained finality; ii. In holding that the petitioners 3rd motion partakes of a prohibited motion for reconsideration; iii. In refusing to re-open the case given the critical importance of the Bane deposition to the petitioners cause; and iv. In refusing to admit the Bane deposition notwithstanding the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130. 3. Whether the Bane deposition is admissible under i. Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules of Court; and ii. The principle of judicial notice.

THE COURTS RULING We deny the petition for lack of merit. I. Preliminary Considerations I (a). The interlocutory nature of the Sandiganbayans 1998 resolution. In determining the appropriate remedy or remedies available, a party aggrieved by a court order, resolution or decision must first correctly identify the nature of the order, resolution or decision he intends to assail.51 In this case, we must preliminarily determine whether the 1998 resolution is "final" or "interlocutory" in nature. Case law has conveniently demarcated the line between a final judgment or order and an interlocutory one on the basis of the disposition made.52 A judgment or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution, however, merely resolves incidental matters and leaves something more to be done to resolve the merits of the case, the order is interlocutory53 and the aggrieved partys remedy is a petition for certiorari under Rule 65. Jurisprudence pointedly holds that: As distinguished from a final order which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, an interlocutory order does not dispose of a case completely, but leaves something more to be adjudicated upon. The term "final" judgment or order signifies a judgment or an order which disposes of the case as to all the parties, reserving no further questions or directions for future determination. On the other hand, a court order is merely interlocutory in character if it leaves substantial proceedings yet to be had in connection with the controversy. It does not end the task of the court in adjudicating the parties contentions and determining their rights and liabilities as against each other. In this sense, it is basically provisional in its application.54 (emphasis supplied) Under these guidelines, we agree with the petitioner that the 1998 resolution is interlocutory. The Sandiganbayans denial of the petitioners 1st motion through the 1998 Resolution came at a time when the petitioner had not even concluded the presentation of its evidence. Plainly, the denial of the motion did not resolve the merits of the case, as something still had to be done to achieve this end. We clarify, too, that an interlocutory order remains under the control of the court until the case is finally resolved on the merits. The court may therefore modify or rescind the order upon sufficient grounds shown at any time before final judgment.55 In this light, the Sandiganbayans 1998 resolution which merely denied the adoption of the Bane deposition as part of the evidence in Civil Case No. 0009 could not have attained finality (in the manner that a decision or final order resolving the case on the merits does) despite the petitioners failure to move for its reconsideration or to appeal.56 I (b). The 3rd motion was not prohibited by the Rules. We also agree with the petitioner that its 3rd motion cannot be considered as a proscribed third (actually second) motion for reconsideration of the Sandiganbayans 1998 resolution. As Section 5, Rule 37 of the Rules of Court clearly provides, the proscription against a second motion for

reconsideration is directed against "a judgment orfinal order." Although a second motion for reconsideration of an interlocutory order can be denied on the ground that it is a mere "rehash" of the arguments already passed upon and resolved by the court, it cannot be rejected on the ground that it is forbidden by the law or by the rules as a prohibited motion.57 I (c). The 1998 resolution was not ripe for a petition for certiorari. Under Section 1, Rule 41 of the Rules of Court, an aggrieved party may appeal from a judgment or final order which completely disposes of a case or from an order that the Rules of Court declares to be appealable. While this provision prohibits an appeal from an interlocutory order, the aggrieved party is afforded the chance to question an interlocutory order through a special civil action of certiorari under Rule 65; the petition must be filed within sixty days from notice of the assailed judgment, order, resolution, or denial of a motion for reconsideration. On the premise that the 1998 resolution is interlocutory in nature, the respondents insist that the 60day period for filing a petition for certiorari should be reckoned from the petitioners notice of the Sandiganbayans 1998 resolution. They argue that since this ruling had long been rendered by the court, the petitioners subsequent filing of similar motions was actually a devious attempt to resuscitate the long-denied admission of the Bane deposition. We do not find the respondents submission meritorious. While the 1998 resolution is an interlocutory order, as correctly argued by the petitioner and impliedly conceded by the respondents, the claim that the 1998 resolution should have been immediately questioned by the petitioner on certiorari is not totally correct as a petition forcertiorari is not grounded solely on the issuance of a disputed interlocutory ruling.58 For a petition for certiorari to prosper, Section 1, Rule 65 of the Rules of Court requires, among others, that neither an appeal nor any plain, speedy and adequate remedy in the ordinary course of law is available to the aggrieved party. As a matter of exception, the writ of certiorari may issue notwithstanding the existence of an available alternative remedy, if such remedy is inadequate or insufficient in relieving the aggrieved party of the injurious effects of the order complained of.59 We note that at the time of its 1st motion in Civil Case No. 0009, the petitioner had not yet concluded the presentation of its evidence, much less made any formal offer of evidence. At this stage of the case, the prematurity of using the extraordinary remedy of certiorari to question the admission of the Bane deposition is obvious. After the denial of the 1st motion, the plain remedy available to the petitioner was to move for a reconsideration to assert and even clarify its position on the admission of the Bane deposition. The petitioner could introduce60 anew the Bane deposition and include this as evidence in its formal offer61 as the petitioner presumably did in Civil Case No. 0130. Thus, at that point, the case was not yet ripe for the filing of a petition for certiorari, and the denial of the 1st motion could not have been the reckoning point for the period of filing such a petition. II. The Sandiganbayans ruling on the finality of its 1998 resolution was legally erroneous but did not constitute grave abuse of discretion In light of the above discussions and conclusions, the Sandiganbayan undoubtedly erred on a question of lawin its ruling, but this legal error did not necessarily amount to a grave abuse of discretion in the absence of a clear showing that its action was a capricious and whimsical exercise of judgment affecting its exercise of jurisdiction.62Without this showing, the Sandiganbayans erroneous legal conclusion was only an error of judgment, or, at best, an abuse of discretion but not a grave one. For this reason alone, the petition should be dismissed.

Despite this conclusion, however, we opt not to immediately dismiss the petition in light of the unique circumstances of this case where the petitioner cannot entirely be faulted for not availing of the remedy at the opportune time, and where the case, by its nature, is undoubtedly endowed with public interest and has become a matter of public concern.63 In other words, we opt to resolve the petition on the merits to lay the issues raised to rest and to avoid their recurrence in the course of completely resolving the merits of Civil Case No. 0009. Although the word "rested" nowhere appears in the Rules of Court, ordinary court procedure has inferred it from an overview of trial sequence under Section 5, Rule 30 (which capsulizes the order of presentation of a partys evidence during trial), read in relation to Rule 18 on Pre-Trial,64 both of the Rules of Court. Under Section 5, Rule 30, after a party has adduced his direct evidence in the course of discharging the burden of proof,65 he is considered to have rested his case, and is thereafter allowed to offer rebutting evidence only.66 Whether a party has rested his case in some measure depends on his manifestation in court on whether he has concluded his presentation of evidence.67 In its second and third motions, respectively, the petitioner expressly admitted that "due to oversight, [the petitioner] closed and rested its case";68 and that it "had terminated the presentation of its evidence in x x x Civil Case No. 0009."69 In the face of these categorical judicial admissions,70 the petitioner cannot suddenly make an about-face and insist on the introduction of evidence out of the usual order. Contrary to the petitioners assertion, the resting of its case could not have been conditioned on the admission of the evidence it formally offered. To begin with, the Bane deposition, which is the lone piece of evidence subject of this present petition, was not among the pieces of evidence included in its formal offer of evidence and thus could not have been admitted or rejected by the trial court. The Court observes with interest that it was only in this present petition for certiorari that the petitioner had firmly denied having rested its case.71 Before then, the petitioner never found it appropriate to question on certiorari the Sandiganbayans denial of its 2nd motion which prayed, inter alia, for the reopening of the case. This is a fatal defect in the petitioners case. Although the denial of the petitioners first motion did not necessitate an immediate recourse to the corrective writ of certiorari, the denial of the 2nd motion dictated a different course of action. The petitioners non-observance of the proper procedure for the admission of the Bane deposition, while seemingly innocuous, carried fatal implications for its case. Having been rebuffed on its first attempt to have the Bane deposition adopted in Civil Case No. 0009, and without seeking reconsideration of the denial, the petitioner presented its other pieces of evidence and eventually rested its case. This time, the petitioner forgot about the Bane deposition and so failed to include that piece of evidence in its formal offer of evidence. More than two years later, the petitioner again tried to squeeze in the Bane deposition into its case. In resolving the petitioners motion for reconsideration of the Sandiganbayans 2000 resolution, the Sandiganbayan held that the Bane deposition has "become part and parcel" of Civil Case No. 0009. This pronouncement has obscured the real status of the Bane deposition as evidence (considering that, earlier, the Sandiganbayan already denied the petitioners attempt to adopt the Bane deposition as evidence in Civil Case No. 0009 for the deponent cannot be cross-examined in court). Nevertheless, the Sandiganbayan ultimately denied the petitioners motion to reopen the case. Having judicially admitted the resting of its case, the petitioner should have already questioned the denial of its 2nd motion by way of certiorari, since the denial of its attempt to reopen the case effectively foreclosed all avenues available to it for the consideration of the Bane deposition. Instead

of doing so, however, the petitioner allowed the 60-day reglementary period, under Section 4, Rule 65 of the Rules of Court, to lapse, and proceeded to file its 3rd motion. Significantly, the petitioner changed its legal position in its 3rd motion by denying having rested its case and insisting on the introduction of the Bane deposition. Rebuffed once more, the petitioner filed the present petition, inviting our attention to the Sandiganbayans resolutions,72 which allegedly gave it "mixed signals."73 By pointing to these resolutions, ironically, even the petitioner impliedly recognized that they were then already ripe for review on certiorari. What the petitioner should have realized was that its 2nd motion unequivocally aimed to reopen the case for the introduction of further evidence consisting of the Bane deposition. Having been ultimately denied by the court, the petitioner could not have been prevented from taking the proper remedy notwithstanding any perceived ambiguity in the resolutions. On the other end, though, there was nothing intrinsically objectionable in the petitioners motion to reopen its case before the court ruled on its formal offer of evidence. The Rules of Court does not prohibit a party from requesting the court to allow it to present additional evidence even after it has rested its case. Any such opportunity, however, for the ultimate purpose of the admission of additional evidence is already addressed to the sound discretion of the court. It is from the prism of the exercise of this discretion that the Sandiganbayans refusal to reopen the case (for the purpose of introducing, "marking and offering" additional evidence) should be viewed. We can declare this Sandiganbayan action invalid if it had acted with grave abuse of discretion. III. The Sandiganbayan gravely abused its discretion in ultimately refusing to reopen the case for the purpose of introducing and admitting in evidence the Bane deposition The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule 30 of the Rules of Court, which reads: Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: xxxx (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case[.] [emphases ours] Under this rule, a party who has the burden of proof must introduce, at the first instance, all the evidence he relies upon74 and such evidence cannot be given piecemeal.75 The obvious rationale of the requirement is to avoid injurious surprises to the other party and the consequent delay in the administration of justice.76 A partys declaration of the completion of the presentation of his evidence prevents him from introducing further evidence;77 but where the evidence is rebuttal in character, whose necessity, for instance, arose from the shifting of the burden of evidence from one party to the other;78 or where the evidence sought to be presented is in the nature of newly discovered evidence,79 the partys right to introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the remedy of certiorari. Largely, the exercise of the courts discretion80 under the exception of Section 5(f), Rule 30 of the Rules of Court depends on the attendant facts i.e., on whether the evidence would qualify as a

"good reason" and be in furtherance of "the interest of justice." For a reviewing court to properly interfere with the lower courts exercise of discretion, the petitioner must show that the lower courts action was attended by grave abuse of discretion. Settled jurisprudence has defined this term as the capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so patent or so gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the mandated duty, or to act at all in contemplation of the law.81 Grave abuse of discretion goes beyond the bare and unsupported imputation of caprice, whimsicality or arbitrariness, and beyond allegations that merely constitute errors of judgment82 or mere abuse of discretion.83 In Lopez v. Liboro,84 we had occasion to make the following pronouncement: After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. (citations omitted; emphases ours) Likewise, in Director of Lands v. Roman Archbishop of Manila,85 we ruled: The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a relaxation of the rule is permitted in the sound discretion of the court. "The proper rule for the exercise of this discretion," it has been said by an eminent author, "is, that material testimony should not be excluded because offered by the plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and affecting his case injuriously." These principles find their echo in Philippine remedial law. While the general rule is rightly recognized, the Code of Civil Procedure authorizes the judge "for special reasons," to change the order of the trial, and "for good reason, in the furtherance of justice," to permit the parties "to offer evidence upon their original case." These exceptions are made stronger when one considers the character of registration proceedings and the fact that where so many parties are involved, and action is taken quickly and abruptly, conformity with precise legal rules should not always be expected. Even at the risk of violating legal formul, an opportunity should be given to parties to submit additional corroborative evidence in support of their claims of title, if the ends of justice so require. (emphases ours) In his commentaries, Chief Justice Moran had this to say: However, the court for good reasons, may, in the furtherance of justice, permit the parties to offer evidence upon their original case, and its ruling will not be disturbed where no abuse of discretion appears, Generally, additional evidence is allowed when x x x; but it may be properly disallowed where it was withheld deliberately and without justification.86 The weight of the exception is also recognized in foreign jurisprudence.87 Under these guidelines, we hold that the Sandiganbayan gravely abused its discretion in refusing to reopen the case. Instead of squarely ruling on the petitioners 2nd motion to avoid any uncertainty on the evidentiary status of the Bane deposition, the Sandiganbayans action actually left the

petitioners concern in limbo by considering the petitioners motion "redundant." This is tantamount to a refusal to undertake a positive duty as mandated by the circumstances and is equivalent to an act outside the contemplation of law. It has not escaped our notice that at the time the petitioner moved to re-open its case, the respondents had not yet even presented their evidence in chief. The respondents, therefore, would not have been prejudiced by allowing the petitioners introduction of the Bane deposition, which was concededly omitted "through oversight."88The higher interest of substantial justice, of course, is another consideration that cannot be taken lightly.89 In light of these circumstances, the Sandiganbayan should not have perfunctorily applied Section 5, Rule 30 of the Rules of Court on the petitioners request to reopen the case for the submission of the Bane deposition. On the basis of this conclusion, a remand of this case should follow as a matter of course. The state of the parties submissions and the delay that has already attended this aspect of Civil Case No. 0009, however, dictate against this obvious course of action. At this point, the parties have more than extensively argued for or against the admission of the Bane deposition. Civil Case No. 0009 is a 25-year old sequestration case that is now crying out for complete resolution. Admissibility, too, is an issue that would have again been raised on remand and would surely stare us in the face after remand.90 We are thus left with no choice but to resolve the issue of admissibility of the Bane deposition here and now. IV. The admissibility of the Bane deposition IV (a). The consolidation of Civil Case No. 0009 and Civil Case No. 0130 did not dispense with the usual requisites of admissibility In support of its 3rd motion, the petitioner argues that the Bane deposition can be admitted in evidence without observing the provisions of Section 47, Rule 130 of the Rules of Court.91 The petitioner claims that in light of the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130, among others,92 the "former case or proceeding" that Section 47, Rule 130 speaks of no longer exists. Rule 31 of the old Rules of Court93 the rule in effect at the time Civil Case Nos. 0009 and 0130 were consolidated provided that: Rule 31 Consolidation or Severance Section 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.94 (emphases ours) Consolidation is a procedural device granted to the court as an aid in deciding how cases in its docket are to be tried so that the business of the court may be dispatched expeditiously and with economy while providing justice to the parties. To promote this end, the rule permits the consolidation and a single trial of several cases in the courts docket, or the consolidation of issues within those cases.95

A reading of Rule 31 of the Rules of Court easily lends itself to two observations. First, Rule 31 is completely silent on the effect/s of consolidation on the cases consolidated; on the parties and the causes of action involved; and on the evidence presented in the consolidated cases. Second, while Rule 31 gives the court the discretion either to order a joint hearing or trial, or to order the actions consolidated, jurisprudence will show that the term "consolidation" is used generically and even synonymously with joint hearing or trial of several causes.96 In fact, the title "consolidation" of Rule 31 covers all the different senses of consolidation, as discussed below. These observations are not without practical reason. Considering that consolidation is basically a function given to the court, the latter is in the best position to determine for itself (given the nature of the cases, the complexity of the issues involved, the parties affected, and the courts capability and resources vis--vis all the official business pending before it, among other things) what "consolidation" will bring, bearing in mind the rights of the parties appearing before it. To disregard the kind of consolidation effected by the Sandiganbayan on the simple and convenient premise that the deposition-taking took place after the Sandiganbayan ordered the consolidation is to beg the question. It is precisely the silence of our Rules of Procedure and the dearth of applicable case law on the effect of "consolidation" that strongly compel this Court to determine the kind of "consolidation" effected to directly resolve the very issue of admissibility in this case. In the context of legal procedure, the term "consolidation" is used in three different senses:97 (1) Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation)98 (2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation)99 (3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)100 Considering that the Sandiganbayans order101 to consolidate several incident cases does not at all provide a hint on the extent of the courts exercise of its discretion as to the effects of the consolidation it ordered in view of the function of this procedural device to principally aid the court itself in dealing with its official business we are compelled to look deeper into the voluminous records of the proceedings conducted below. We note that there is nothing that would even suggest that the Sandiganbayan in fact intended a merger of causes of action, parties and evidence.102 To be sure, there would have been no need for a motion to adopt (which did not remain unopposed) the testimonies in the incident cases had a merger actually resulted from the order of consolidation, for in that case, the Sandiganbayan can already take judicial notice of the same. Significantly, even the petitioner itself viewed consolidation, at most, to be merely a consolidation for trial.103Accordingly, despite the consolidation in 1993, the petitioner acceded to the Sandiganbayans 1998 Resolution (which denied the petitioners 1st Motion on the ground that the witnesses, whose testimony in the incident cases is sought to be adopted, "are not available for cross-examination in" the Sandiganbayan) by presenting these other witnesses again in the main case, so that the respondents can cross-examine them.

These considerations run counter to the conclusion that the Sandiganbayans order of consolidation had actually resulted in the complete merger of the incident cases with the main case, in the sense of actual consolidation, and that the parties in these consolidated cases had (at least constructively) been aware of and had allowed actual consolidation without objection.104 Considering, too, that the consolidated actions were originally independent of one another and the fact that in the present case the party respondents to Civil Case No. 0009 (an action for reconveyance, accounting, restitution and damages) are not parties to Civil Case No. 0130 (a special civil action filed by an ETPI stockholder involving a corporate squabble within ETPI), the conclusion that the Sandiganbayan in fact intended an actual consolidationand, together with the parties affected,105 acted towards that end - where the actions become fused and unidentifiable from one another and where the evidence appreciated in one action is also appreciated in another action must find support in the proceedings held below. This is particularly true in a case with the magnitude and complexity of the present case. Otherwise, to impose upon the respondents the effects of an actual consolidation (which find no clear support in the provisions of the Rules of Court, jurisprudence,106 and even in the proceedings before the Sandiganbayan itself and despite the aforementioned considerations) results in an outright deprivation of the petitioners right to due process. We reach this conclusion especially where the evidence sought to be admitted is not simply a testimony taken in one of the several cases, but a deposition upon oral examination taken in another jurisdiction and whose admission is governed by specific provisions on our rules on evidence. We stress on this point, too, that while the Sandiganbayan ordered the consolidation in 1993 (that is, before the deposition was taken), neither does the Pre-Trial Order107 issued by the Sandiganbayan in 1997 in Civil Case No. 0009 contain any reference, formal or substantive, to Civil Case No. 0130.108 Interestingly, in its Pre-Trial Brief dated August 30, 1996,109 the petitioner even made a representation to present Bane as one of its witnesses. IV (b). Use of deposition under Section 4, Rule 23 and as a former testimony under Section 47, Rule 130 Since the present consolidation did not affect Civil Case No. 0130 as an original, albeit incidental, case, the admissibility of the Bane deposition cannot avoid being measured against the requirements of Section 47, Rule 130 of the Rules of Court the rule on the admissibility of testimonies or deposition taken in a different proceeding. In this regard, the petitioner argues that Section 4, Rule 23 of the Rules of Court (then Rule 24)110must, at any rate, prevail over Section 47, Rule 130111 of the same Rules. At the outset, we note that when the petitioners motion to adopt the testimonies taken in the incident cases drew individual oppositions from the respondents, the petitioner represented to the Sandiganbayan its willingness to comply with the provisions of Section 47, Rule 130 of the Rules of Court,112 and, in fact, again presented some of the witnesses. The petitioners about-face two years thereafter even contributed to the Sandiganbayans own inconsistency on how to treat the Bane deposition, in particular, as evidence. Section 4, Rule 23 of the Rules of Court on "Deposition Pending Action" (deposition de bene esse) provides for the circumstances when depositions may be used in the trial, or at the hearing of a motion or an interlocutory proceeding. SEC. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may

be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: xxxx (c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used[.] [emphasis ours] On the other hand, Section 47, Rule 130 of the Rules of Court provides: SEC. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. A plain reading of Rule 23 of the Rules of Court readily rejects the petitioners position that the Bane deposition can be admitted into evidence without observing the requirements of Section 47, Rule 130 of the Rules of Court. Before a party can make use of the deposition taken at the trial of a pending action, Section 4, Rule 23 of the Rules of Court does not only require due observance of its sub-paragraphs (a) to (d); it also requires, as a condition for admissibility, compliance with "the rules on evidence." Thus, even Section 4, Rule 23 of the Rules of Court makes an implied reference to Section 47, Rule 130 of the Rules of Court before the deposition may beused in evidence. By reading Rule 23 in isolation, the petitioner failed to recognize that the principle conceding admissibility to a deposition under Rule 23 should be consistent with the rules on evidence under Section 47, Rule 130.113 In determining the admissibility of the Bane deposition, therefore, reliance cannot be given on one provision to the exclusion of the other; both provisions must be considered. This is particularly true in this case where the evidence in the prior proceeding does not simply refer to a witness testimony in open court but to a deposition taken under another and farther jurisdiction. A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47, Rule 130 of the same Rules is their mutual reference to depositions. A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.114 Since depositions are principally made available to the parties as a means of informing themselves of all the relevant facts, depositions are not meant as substitute for the actual testimony in open court of a party or witness. Generally, the deponent must be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules on evidence under Section 1, Rule 132 of the Rules of Court.115 Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is

incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. Indeed, any deposition offered to prove the facts set forth therein, in lieu of the actual oral testimony of the deponent in open court, may be opposed by the adverse party and excluded under the hearsay rule i.e., that the adverse party had or has no opportunity to cross-examine the deponent at the time that his testimony is offered. That opportunity for cross-examination was afforded during the taking of the deposition alone is no argument, as the opportunity for cross-examination must normally be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing of a case.116 However, under certain conditions and for certain limited purposes laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be used without the deponent being actually called to the witness stand.117 Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a former testimony or depositionappears under the Exceptions to the Hearsay Rule, the classification of former testimony or deposition as an admissible hearsay is not universally conceded.118 A fundamental characteristic of hearsay evidence is the adverse partys lack of opportunity to cross-examine the out-of-court declarant. However, Section 47, Rule 130 explicitly requires, inter alia, for the admissibility of a former testimony or deposition that the adverse party must have had an opportunity to cross-examine the witness or the deponent in the prior proceeding. This opportunity to cross-examine though is not the ordinary cross-examination119 afforded an adverse party in usual trials regarding "matters stated in the direct examination or connected therewith." Section 47, Rule 130 of the Rules of Court contemplates a different kind of crossexamination, whether actual or a mere opportunity, whose adequacy depends on the requisite identity of issues in the former case or proceeding and in the present case where the former testimony or deposition is sought to be introduced. Section 47, Rule 130 requires that the issues involved in both cases must, at least, be substantially the same; otherwise, there is no basis in saying that the former statement was - or would have been - sufficiently tested by cross-examination or by an opportunity to do so.120 (The requirement of similarity though does not mean that all the issues in the two proceedings should be the same.121 Although some issues may not be the same in the two actions, the admissibility of a former testimony on an issue which is similar in both actions cannot be questioned.122 ) These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and therefore should not be confused with the general provisions on deposition under Rule 23 of the Rules of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on the use of depositions, the observance of Section 47, Rule 130 of the Rules of Court cannot simply be avoided or disregarded. Undisputably, the Sandiganbayan relied on the Bane deposition, taken in Civil Case No. 0130, for purposes of this very same case. Thus, what the petitioner established and what the Sandiganbayan found, for purposes of using the Bane deposition, refer only to the circumstances laid down under Section 4(c), Rule 23 of the Rules of Court, not necessarily to those of Section 47, Rule 130 of the Rules of Court, as a distinct rule on evidence that imposes further requirements in the use of depositions in a different case or proceeding. In other words, the prior use of the deposition under Section 4(c), Rule 23 cannot be taken as compliance with Section 47, Rule 130 which considers the same deposition as hearsay, unless the requisites for its admission under this rule are observed. The aching question is whether the petitioner complied with the latter rule.

Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a testimony or deposition given at a former case or proceeding. 1. The testimony or deposition of a witness deceased or otherwise unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the same matter; 5. The adverse party having had the opportunity to cross-examine him.123 The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the necessity for the testimony and its trustworthiness.124 However, before the former testimony or deposition can be introduced in evidence, the proponent must first lay the proper predicate therefor,125 i.e., the party must establish the basis for the admission of the Bane deposition in the realm of admissible evidence. This basis is the prior issue that we must now examine and resolve. IV (c). Unavailability of witness For the admission of a former testimony or deposition, Section 47, Rule 130 of the Rules of Court simply requires,inter alia, that the witness or deponent be "deceased or unable to testify." On the other hand, in using a deposition that was taken during the pendency of an action, Section 4, Rule 23 of the Rules of Court provides several grounds that will justify dispensing with the actual testimony of the deponent in open court and specifies, inter alia, the circumstances of the deponents inability to attend or testify, as follows: (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment[.] [emphases ours]126 The phrase "unable to testify" appearing in both Rule 23 and Rule 130 of the Rules of Court refers to a physical inability to appear at the witness stand and to give a testimony.127 Hence notwithstanding the deletion of the phrase "out of the Philippines," which previously appeared in Section 47, Rule 130 of the Rules of Court, absence from jurisdiction128 - the petitioners excuse for the nonpresentation of Bane in open court - may still constitute inability to testify under the same rule. This is not to say, however, that resort to deposition on this instance of unavailability will always be upheld. Where the deposition is taken not for discovery purposes, but to accommodate the deponent, then the deposition should be rejected in evidence.129 Although the testimony of a witness has been given in the course of a former proceeding between the parties to a case on trial, this testimony alone is not a ground for its admission in evidence. The witness himself, if available, must be produced in court as if he were testifying de novo since his testimony given at the former trial is mere hearsay.130 The deposition of a witness, otherwise available, is also inadmissible for the same reason. Indeed, the Sandiganbayans reliance on the Bane deposition in the other case (Civil Case No. 0130) is an argument in favor of the requisite unavailability of the witness. For purposes of the present case (Civil Case No. 0009), however, the Sandiganbayan would have no basis to presume, and neither can or should we, that the previous condition, which previously allowed the

use of the deposition, remains and would thereby justify the use of the same deposition in another case or proceeding, even if the other case or proceeding is before the same court. Since the basis for the admission of the Bane deposition, in principle, being necessity,131 the burden of establishing its existence rests on the party who seeks the admission of the evidence. This burden cannot be supplanted by assuming the continuity of the previous condition or conditions in light of the general rule against the non-presentation of the deponent in court.132 IV (d). The requirement of opportunity of the adverse party to cross-examine; identity of parties; and identity of subject matter The function of cross-examination is to test the truthfulness of the statements of a witness made on direct examination.133 The opportunity of cross-examination has been regarded as an essential safeguard of the accuracy and completeness of a testimony. In civil cases, the right of crossexamination is absolute, and is not a mere privilege of the party against whom a witness may be called.134 This right is available, of course, at the taking of depositions, as well as on the examination of witnesses at the trial. The principal justification for the general exclusion of hearsay statements and for the admission, as an exception to the hearsay rule, of reported testimony taken at a former hearing where the present adversary was afforded the opportunity to cross-examine, is based on the premise that the opportunity of cross-examination is an essential safeguard135 against falsehoods and frauds. In resolving the question of whether the requirement of opportunity to cross-examine has been satisfied, we have to consider first the required identity of parties as the present opponent to the admission of the Bane deposition to whom the opportunity to cross-examine the deponent is imputed may not after all be the same "adverse party" who actually had such opportunity. To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity136or identity of interests137 suffices, as where the subsequent proceeding is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in estate. The term "privity" denotes mutual or successive relationships to the same rights of property.138 In the present case, the petitioner failed to impute, much less establish, the identity of interest or privity between the then opponent, Africa, and the present opponents, the respondents. While Africa is the son of the late respondent Jose Africa, at most, the deposition should be admissible only against him as an ETPI stockholder who filed the certiorari petition docketed as Civil Case No. 0130 (and, unavoidably, as successor-in-interest of the late respondent Jose Africa). While Africa and the respondents are all ETPI stockholders, this commonality does not establish at all any privity between them for purposes of binding the latter to the acts or omissions of the former respecting the crossexamination of the deponent. The sequestration of their shares does not result in the integration of their rights and obligations as stockholders which remain distinct and personal to them, vis-avisother stockholders.139 IV (d1). The respondents notice of taking of Bane deposition is insufficient evidence of waiver The petitioner staunchly asserts that the respondents have waived their right to cross-examine the deponent for their failure to appear at the deposition-taking despite individual notices previously sent to them.140 In its first Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996,141 the petitioner originally intended to depose Mr. Bane on September 25-26 1996. Because it failed to

specify in the notice the purpose for taking Mr. Banes deposition, the petitioner sent a Second Amended Notice to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination where it likewise moved the scheduled deposition-taking to October 23-26, 1996. The records show that Africa moved several times for protective orders against the intended deposition of Maurice Bane.142 On the other hand, among the respondents, only respondent Enrile appears to have filed an Opposition143 to the petitioners first notice, where he squarely raised the issue of reasonability of the petitioners nineteen-day first notice. While the Sandiganbayan denied Africas motion for protective orders,144 it strikes us that no ruling was ever handed down on respondent Enriles Opposition.145 It must be emphasized that even under Rule 23, the admission of the deposition upon oral examination is not simply based on the fact of prior notice on the individual sought to be bound thereby. In Northwest Airlines v. Cruz,146 we ruled that The provision explicitly vesting in the court the power to order that the deposition shall not be taken connotes the authority to exercise discretion on the matter. However, the discretion conferred by law is not unlimited. It must be exercised, not arbitrarily or oppressively, but in a reasonable manner and in consonance with the spirit of he law. The courts should always see to it that the safeguards for the protection of the parties and deponents are firmly maintained. As aptly stated by Chief Justice Moran: . . . . (T)his provision affords the adverse party, as well as the deponent, sufficient protection against abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a writer said: "Any discovery involves a prying into another person's affairs prying that is quite justified if it is to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this reason, courts are given ample powers to forbid discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both. (emphasis ours) In the present case, not only did the Sandiganbayan fail to rule on respondent Enriles Opposition (which is equally applicable to his co-respondents), it also failed to provide even the bare minimum "safeguards for the protection of," (more so) non-parties,147 and to ensure that these safeguards are firmly maintained. Instead, the Sandiganbayan simply bought the petitioners assertion (that the taking of Bane deposition is a matter of right) and treated the lingering concerns e.g., reasonability of the notice; and the non-party status of the respondents in Civil Case No. 0130 - at whose incident (docketed as G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice of the respondents. In conjunction with the order of consolidation, the petitioners reliance on the prior notice on the respondents, as adequate opportunity for cross-examination, cannot override the non-party status of the respondents in Civil Case No. 0130 the effect of consolidation being merely for trial. As nonparties, they cannot be bound by proceedings in that case. Specifically, they cannot be bound by the taking of the Bane deposition without the consequent impairment of their right of crossexamination.148 Opportunity for cross-examination, too, even assuming its presence, cannot be singled out as basis for the admissibility of a former testimony or deposition since such admissibility is also anchored on the requisite identity of parties. To reiterate, although the Sandiganbayan considered the Bane deposition in resolving Civil Case No. 0130, its action was premised on Africas status as a party in that case where the Bane deposition was taken. Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its Section 5 which provides:

Effect of substitution of parties. Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. [italics and underscoring ours] In light of these considerations, we reject the petitioners claim that the respondents waived their right to cross-examination when they failed to attend the taking of the Bane deposition. Incidentally, the respondents vigorous insistence on their right to cross-examine the deponent speaks loudly that they never intended any waiver of this right. Interestingly, the petitioners notice of the deposition-taking relied on Rule 23 of the Rules of Court. Section 15 of this rule reads: Deposition upon oral examination; notice; time and place. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time. Under this provision, we do not believe that the petitioner could reasonably expect that the individual notices it sent to the respondents would be sufficient to bind them to the conduct of the then opponents (Africas) cross-examination since, to begin with, they were not even parties to the action. Additionally, we observe that in the notice of the deposition taking, conspicuously absent was any indication sufficient to forewarn the notified persons that their inexcusable failure to appear at the deposition taking would amount to a waiver of their right of cross-examination, without prejudice to the right of the respondents to raise their objections at the appropriate time.149We would be treading on dangerous grounds indeed were we to hold that one not a party to an action, and neither in privity nor in substantial identity of interest with any of the parties in the same action, can be bound by the action or omission of the latter, by the mere expedient of a notice. Thus, we cannot simply deduce a resultant waiver from the respondents mere failure to attend the deposition-taking despite notice sent by the petitioner. Lastly, we see no reason why the Bane deposition could not have been taken earlier in Civil Case No. 0009 theprincipal action where it was sought to be introduced while Bane was still here in the Philippines. We note in this regard that the Philippines was no longer under the Marcos administration and had returned to normal democratic processes when Civil Case No. 0009 was filed. In fact, the petitioners notice itself states that the "purpose of the deposition is for Mr. Maurice Bane to identify and testify on the facts set forth in his Affidavit," which Mr. Bane had long executed in 1991 in Makati, Metro Manila.150 Clearly, a deposition could then have been taken - without compromising the respondents right to cross-examine a witness against them - considering that the principal purpose of the deposition is chiefly a mode of discovery. These, to our mind, are avoidable omissions that, when added to the deficient handling of the present matter, add up to the gross deficiencies of the petitioner in the handling of Civil Case No. 0009. After failing to take Banes deposition in 1991 and in view of the peculiar circumstances of this case, the least that the petitioner could have done was to move for the taking of the Bane deposition and proceed with the deposition immediately upon securing a favorable ruling thereon. On that occasion, where the respondents would have a chance to be heard, the respondents cannot avoid a resultant waiver of their right of cross-examination if they still fail to appear at the deposition-taking.

Fundamental fairness dictates this course of action. It must be stressed that not only were the respondents non-parties to Civil Case No. 0130, they likewise have no interest in Africas certiorari petition asserting his right as an ETPI stockholder. Setting aside the petitioners flip-flopping on its own representations,151 this Court can only express dismay on why the petitioner had to let Bane leave the Philippines before taking his deposition despite having knowledge already of the substance of what he would testify on. Considering that the testimony of Bane is allegedly a "vital cog" in the petitioners case against the respondents, the Court is left to wonder why the petitioner had to take the deposition in an incident case (instead of the main case) at a time when it became the technical right of the petitioner to do so. V. The petitioner cannot rely on principle of judicial notice The petitioner also claims that since the Bane deposition had already been previously introduced and admitted in Civil Case No. 0130, then the Sandiganbayan should have taken judicial notice of the Bane deposition as part of its evidence. Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them.152 Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed.153 The foundation for judicial notice may be traced to the civil and canon law maxim, manifesta (or notoria) non indigent probatione.154 The taking of judicial notice means that the court will dispense with the traditional form of presentation of evidence. In so doing, the court assumes that the matter is so notorious that it would not be disputed. The concept of judicial notice is embodied in Rule 129 of the Revised Rules on Evidence. Rule 129 either requires the court to take judicial notice, inter alia, of "the official acts of the x x x judicial departments of the Philippines,"155or gives the court the discretion to take judicial notice of matters "ought to be known to judges because of their judicial functions."156 On the other hand, a partylitigant may ask the court to take judicial notice of any matter and the court may allow the parties to be heard on the propriety of taking judicial notice of the matter involved.157 In the present case, after the petitioner filed its Urgent Motion and/or Request for Judicial Notice, the respondents were also heard through their corresponding oppositions. In adjudicating a case on trial, generally, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding that both cases may have been tried or are actually pending before the same judge.158 This rule though admits of exceptions. As a matter of convenience to all the parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of, andabsent an objection from, the adverse party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives at the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.159 Courts must also take judicial notice of the records of another case or cases, where sufficient basis exists in the records of the case before it, warranting the dismissal of the latter case.160

The issue before us does not involve the applicability of the rule on mandatory taking of judicial notice; neither is the applicability of the rule on discretionary taking of judicial notice seriously pursued. Rather, the petitioner approaches the concept of judicial notice from a genealogical perspective of treating whatever evidence offered in any of the "children" cases Civil Case 0130 as evidence in the "parent" case Civil Case 0009 - or "of the whole family of cases."161 To the petitioner, the supposed relationship of these cases warrants the taking of judicial notice. We strongly disagree. First, the supporting cases162 the petitioner cited are inapplicable either because these cases involve only a single proceeding or an exception to the rule, which proscribes the courts from taking judicial notice of the contents of the records of other cases.163 Second, the petitioners proposition is obviously obnoxious to a system of orderly procedure. The petitioner itself admits that the present case has generated a lot of cases, which, in all likelihood, involve issues of varying complexity. If we follow the logic of the petitioners argument, we would be espousing judicial confusion by indiscriminately allowing the admission of evidence in one case, which was presumably found competent and relevant in another case, simply based on the supposed lineage of the cases. It is the duty of the petitioner, as a party-litigant, to properly lay before the court the evidence it relies upon in support of the relief it seeks, instead of imposing that same duty on the court. We invite the petitioners attention to our prefatory pronouncement in Lopez v. Sandiganbayan:164 Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the Judge in trying a case sees only with judicial eyes as he ought to know nothing about the facts of the case, except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. (emphasis ours) We therefore refuse, in the strongest terms, to entertain the petitioners argument that we should take judicial notice of the Bane deposition. VI. Summation To recapitulate, we hold that: (1) the Sandiganbayans denial of the petitioners 3rd motion the Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice Bane) was a legal error that did not amount to grave abuse of discretion; (2) the Sandiganbayans refusal to reopen the case at the petitioners instance was tainted with grave abuse of discretion; and (3) notwithstanding the grave abuse of discretion, the petition must ultimately fail as the Bane deposition is not admissible under the rules of evidence.165 VII. Refutation of Justice Carpios Last Minute Modified Dissent At the last minute, Justice Carpio circulated a modified dissent, quoting the Bane deposition. His covering note states: I have revised my dissenting opinion to include the Bane deposition so that the Court and the public will understand what the Bane deposition is all about. (underlining added) In light of this thrust, a discussion refuting the modified dissent is in order. First: Contents of the Bane deposition not an Issue. The dissent perfectly identified what is at issue in this case i.e., the admissibility of the Bane deposition. Admissibility is concerned with the competence and relevance166 of the evidence, whose admission is sought. While the dissent quoted at length the Bane deposition, it may not be amiss to point out that the relevance of the Bane deposition (or, to adopt the dissents characterization, whether "Maurice V. Bane is a vital witness")

is not an issue here unless it can be established first that the Bane deposition is a competent evidence. Second: Misrepresentation of Cited Authority. The dissent insists that "in Philippine Jurisprudence, the consolidation of cases merges the different actions into one and the rights of the parties are adjudicated in a single judgment," citing Vicente J. Francisco. In our discussion on consolidation, we footnoted the following in response to the dissents position, which we will restate here for emphasis: In the 1966 edition of Vicente J. Franciscos Revised Rules of Court, Francisco wrote: The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of actions involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372). At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum, the following caveat appears: The term consolidation is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. The failure to distinguish between these methods of procedure, which are entirely distinct, the two latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added). In defining the term "consolidation of actions," Francisco provided a colatilla that the term "consolidation" is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco, Revised Rules of Court, p. 348). From the foregoing, it is clear that the dissent appears to have quoted Franciscos statement out of context. As it is, the issue of the effect of consolidation on evidence is at most an unsettled matter that requires the approach we did in the majoritys discussion on consolidation.167 Third: Misappreciation of the Purpose of Consolidation. The dissent then turns to the purpose of consolidation to "expeditiously settle the interwoven issues involved in the consolidated cases" and "the simplification of the proceedings." It argues that this can only be achieved if the repetition of the same evidence is dispensed with. It is unfortunate that the dissent refuses to recognize the fact that since consolidation is primarily addressed to the court concerned to aid it in dispatching its official business, it would be in keeping with the orderly trial procedure if the court should have a say on what consolidation would actually bring168 (especially where several cases are involved which have become relatively complex). In the present case, there is nothing in the proceedings below that would suggest that the Sandiganbayan or the parties themselves (the petitioner and the respondents) had in mind a consolidation beyond joint hearing or trial. Why should this Court which is not a trial court impose a purported effect that has no factual or legal grounds?

Fourth: The Due Process Consideration. The dissent argues that even if the consolidation only resulted in a joint hearing or trial, the "respondents are still bound by the Bane deposition considering that they were given notice of the deposition-taking." The issue here boils down to one of due process the fundamental reason why a hearsay statement (not subjected to the rigor of cross-examination) is generally excluded in the realm of admissible evidence especially when read in light of the general rule that depositions are not meant as substitute for the actual testimony, in open court, of a party or witness. Respondent Enrile had a pending Opposition to the notice of deposition-taking (questioning the reasonableness thereof an issue applicable to the rest of the respondents) which the Sandiganbayan failed to rule on. To make the Sandiganbayans omission worse, the Sandiganbayan blindly relied on the petitioners assertion that the deposition-taking was a matter of right and, thus, failed to address the consequences and/or issues that may arise from the apparently innocuous statement of the petitioner (that it intends to use the Bane deposition in Civil Case No. 0009, where only the respondents, and not Africa, are the parties).169 There is simply the absence of "due" in due process. Fifth: Misstatement of the Sandiganbayans Action. The dissent repeatedly misstates that the Sandiganbayan "granted" the request for the deposition-taking. For emphasis, the Sandiganbayan did not "grant" the request since the petitioner staunchly asserted that the deposition-taking was a matter of right. No one can deny the complexity of the issues that these consolidated cases have reached. Considering the consolidation of cases of this nature, the most minimum of fairness demands upon the petitioner to move for the taking of the Bane deposition and for the Sandiganbayan to make a ruling thereon (including the opposition filed by respondent Enrile which equally applies to his co-respondents). The burgeoning omission and failures that have prevailed in this case cannot be cured by this Court without itself being guilty of violating the constitutional guarantee of due process. Sixth: Issues Posed and Resolved Go Beyond Technicalities. The above conclusions, contrary to the petitioners claim, are not only matters of technicality. Admittedly, rules of procedure involve technicality, to which we have applied the liberality that technical rules deserve. But the resolution of the issues raised goes beyond pure or mere technicalities as the preceding discussions show. They involve issues of due process and basic unfairness to the respondents, particularly to respondent Enrile, who is portrayed in the Bane deposition to be acting in behalf of the Marcoses so that these shares should be deemed to be those of the Marcoses. They involved, too, principles upon which our rules of procedure are founded and which we cannot disregard without flirting with the violation of guaranteed substantive rights and without risking the disorder that these rules have sought to avert in the course of their evolution. In the Court En Banc deliberations of December 6, 2011, the Court failed to arrive at a conclusive decision because of a tie vote (7-7, with one Justice taking no part). The same vote resulted in the re-voting of December 13, 2011. In this light, the ponencia is deemed sustained. WHEREFORE, premises considered, we DISMISS the petition for lack of merit. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-32265 May 16, 1983

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO RAMOS y ANTONIO, ELADIO CALUYA y BINUYA, SIXTO GABORNE y LLUADER and EDUARDO SUBLECHERO y GABUAT, defendants-appellants. The Solicitor General for plaintiff-appellee. Amado Sison for E. Sublechero. Ernesto C S. Sibal for E. Ramos, defendants-appellants.

RELOVA, J.: Automatic review of the decision of the Court of First Instance of Rizal, Branch XIV at Caloocan City, for robbery with homicide, sentencing Ernesto Ramos, Eladio Caluya, Eduardo Sublechero, and Sixto Gaborne "to suffer the supreme penalty of death by electrocution, and to indemnify the heirs of Dr. Mariano Gana jointly and severally the sum of P12,200.00, without subsidiary imprisonment in case of insolvency and to pay the costs." With respect to the accused Sixto Gaborne who, upon arraignment, pleaded guilty to the charge and was sentenced accordingly, this Court on July 25, 1974 set aside the decision of the lower court of March 5, 1970 and granted him a new trial "to enable him to be afforded the opportunity to be heard in accordance with the guidelines set forth by this Court from Apduhan and the subsequent cases." Thus, this appeal concerns the accused Ernesto Ramos y Antonio, Eladio Caluya y Binuya and Eduardo Sublechero y Gabuat only. Evidence shows that about nine o'clock in the evening of December 8, 1967, Vilma Pitelo and Milagros Bural, housemaids of Dr. and Mrs. Mariano Gana whose residence is at 139 Tirad Pass, Balintawak, Caloocan City were in the kitchen of the said Gana residence. Vilma was scrubbing the kitchen floor while Milagros was putting water in bottles near the kitchen sink. Suddenly, appellant Ernesto Ramos came from behind Milagros Bural, held her left shoulder and tied a handkerchief over her mouth. A companion of Ernesto Ramos helped in tying her hands behind her back, following which Vilma Pitelo was also tied, her mouth with a twisted shirt and her hands and feet tied with a rope. Upon hearing the footsteps from the other side of the kitchen, Milagros Bural, and Vilma Pitelo saw Ernesto Ramos and the other appellants who had entered the kitchen door, hide behind the door near the refrigerator. Dr. Gana entered the kitchen and got a bottle of water inside the refrigerator. He then went back to the sala and listened to the radio. Appellants entered the sala, except Ernesto Ramos who stayed and stood guard in the kitchen. Suddenly, Mrs. Rosario Bella-Gana who at the time was resting in her bedroom at the ground floor of their residence heard a groan and thinking that her husband, Dr. Gana, might be suffering from "bangungot", shouted: "Manoy, Manoy, may sakit ka ba? Ano ang nangyari?" and immediately rushed to leave her room to give her husband a glass of water. As she opened the door, she met appellants Caluya, Sublechero, Gaborne and another one she described as tag and thin. These four men led her back to her room and demanded money. Mrs. Gana told them they can get every thing and pleaded not to hurt her. Appellant Sublechero asked for the key to the aparador while the tan one took the money which is a little over P200.00.

Thereafter, the four men led Mrs. Gana to the kitchen where they tied her hands behind her back with a rope. She was made to join her two maids who were tied to the rice sack near the cupboard. The five men including Ernesto Ramos fled from the house. Mrs. Gana managed to go up to the second floor of the house where she called her daughter-in-law, Sarah Florentino Gana, who untied her. They went down the ground floor where they saw Dr. Gana slumped at the foot of the stairs, soaked with blood. Sarah went to the kitchen and untied the maids, following which, they returned to the sala and found Dr. Gana already dead. The matter was reported to the police who came to investigate and ordered the members of the household not to touch anything. Vilma then and there told the police that she knew one of the five men, Eduardo Sublechero, because the latter used to play basketball in their yard. After the statements of the other witnesses had been taken, appellants Ernesto Ramos, Eladio Caluya and Eduardo Sublechero were investigated by the police of Caloocan City before whom they gave their respective statements which were subscribed and sworn to before the inquest fiscal. Sixto Gaborne refused to give a statement. Dr. Plaridel Vidal of the National Bureau of Investigation conducted the examination on the body of the deceased Dr. Mariano Gana. Necropsy report shows that the victim died of "[h]emorrhage, meningeal, subdural, subarachnoidal extensive and generalized, traumatic." (Exhibit "F") In his defense, Ernesto Ramos professed innocence of the crime charged due to the exempting circumstance of irresistible force and uncontrollable fear. His evidence tends to show that: [O]n December 8, 1967, at about 7:00 o'clock in the evening, accused appellant Ernesto Ramos was fetched from his house at 109 G. de Jesus, Caloocan City by co-accused Eduardo Sublechero and brought to the house of the latter at General Tirona, Bagong Barrio, Caloocan City to fill out application forms for overseas employment. While thus preparing their application forms, two other co-accused, Sixto Gaborne and Boy Andy came and invited them to eat in a restaurant for they won in gambling, (t.s.n., p. 3, March 19, 1969). Thereafter, they proceeded to a store at Bagong Barrio where Boy Andy bought a rope. Upon seeing the rope, accusedappellant Ernesto Ramos became curious and asked Boy Andy what he will do with the rope and he was told to keep quiet but after about two minutes Ernesto Ramos insisted in knowing what the rope was for. Finally Boy Andy told them if they really want to have money, Ernesto Ramos protested and said what they were thinking was not good and that he wanted to go home. Boy Andy prevented him from leaving for he had already known of their evil scheme and was afraid he might tell the police. When Ernesto Ramos refused to join them, and was insisting to go home. Boy Andy held him by the collar of his shirt at the same time pulling out a dagger which he pointed to Ramos and told him if Ramos will not go with him he will kill him. For fear, Ramos went with them to Samson Road where they waited for Jojo. From there, they proceeded to the house of Dr. Mariano Gana. After cutting the wire fence, Boy Andy pushed Eduardo Sublechero inside. When they were all inside, Ramos was forced by Andy to go inside too. Ramos' knees were trembling, (t.s.n. p. 4, March 19, 1969) Ramos saw the two housemaids hogtied but he could not see clearly who hogtied them for it was dark inside-the lights were off. Boy Andy ordered Ramos to stand guard and threatened him not to leave or he will kill him. After a while he heard banging noises inside and then saw all the others running towards the kitchen so all of them ran outside of the house and proceeded to Boy Andy's house where the loot of P200.00 was divided. At first Ramos refused to accept his share of P40.00 by

saying they could keep it and he will just go home. When Boy Andy suspected that Ramos might tell the police of the incident, the latter got nervous and afraid so for fear of his life, he accepted the money and went home. The following day, they were arrested by the police and investigated at the police headquarters. (pp. 3 & 4, Appellant Ernesto Ramos' Brief) The defense of Eduardo Sublechero is as follows: On December 8,1967, he and Ernesto Ramos were preparing their applications for overseas employment. Boy Andy arrived and invited them to go to Bagong Barrio. On the way, and in front of the house of Dr. Mariano Gana, Boy Andy held Sublechero by the collar of his shirt, poked a three-bladed instrument at him and ordered him to enter the residence of Dr. Mariano Gana. While inside the residence of the victim, Sublechero did riot have the chance to go out of the house because Boy Andy was always beside him. In short, this appellant claims exemption from any criminal liability because his acts and/or participation in the criminal design of Boy Andy, who up to then remains at large, was under compulsion of an irresistible force and under the impulse of an uncontrollable fear of an equal or greater injury. Likewise, Eladio Caluya claims that on December 8,1967, at about 8:00 in the evening he was on his way to his residence at Bagong Barrio, Caloocan City, from work at the Asiatic Shoe Factory and met Boy Andy, Gaborne, Sublechero and Ramos waiting for him at Samson Road. He claimed no conversation took place among them and they walked towards Bagong Barrio until they reached the residence of Dr. Mariano Gana. They stopped in front of said house and he claimed he was surprised when Boy Andy told them that they would enter the said house to rob. He remonstrated but Boy Andy threatened to kill him if he would not join. His testimony follows. Q When he told you would rob said house, what did you do, you particularly? A I told him that I would not go with him. Q When you told him you would not go with him, what happened? A He threatened me if I would not go with them, he would kill me. Q When he threatened you, did he have any weapon with him then? A He had. Q What was with him? A A knife this long (Witness demonstrating a foot long). ATTY. BALGONA: Q Did he threatened you with that knife? A Yes, sir, by poking the same at my side. Q Did you finally enter the premises of the house of Doctor Gana? A Yes, sir." (tsn. p. 2 1, March 19, 1969 hearing)

He claimed, however, that he did not do anything while inside the house of Dr. Gana. Q What did you do when you were already at the premises of the house of Doctor Gana? A None, sir. (tsn. p. 21, March 19, 1969 hearing) On December 9, 1967, at about 3:00 in the morning, he was apprehended at his residence by policemen and brought to the Caloocan City Police Headquarters for investigation. The trial court, with valid reason, refused to accept the alleged threat employed by Boy Andy to kill them if they would not join him and considered the same as flimsy and inadequate so as to strike fear in their hearts and compel them to obey and commit the heinous crime. "Even if Boy Andy was armed with a knife, he was alone and the three accused could manage to overpower him if not escape from the scene of the crime. It is evident that accused Ramos, Sublechero and Caluya were willing participants in the pursuit of their criminal design to rob and kill. The excuses of the defendants cannot prevail over the clear, conclusive and positive evidence of the prosecution. Moreover, the crime committed was proven independently of the extra-judicial confessions of the accuse thru the testimonies of the pro petition witnesses beyond reasonable doubt. It is proceedings. observed by the Court that the evidence on record offers sufficient and ample ground to conclude that the accused committed the crime of robbery with homicide pursuant to a conspiracy. The circumstance of their meeting together one night in one place from which they proceeded to the scene of the crime; the taking along with them a newly bought rope; their separate, individual and assigned tasks in the commission of the crime; the almost militant dispatch and precision in the perpetration of the crime; and their departure together from the scene of the crime and meeting in one place to divide the loot- all these facts and circumstances taken together clearly manifest a preconceived, well-planned and concerted action on the part of the accused in pursuance of their common and evil design to rob and kill. (Decision, pp. 27-28) We find no reason to differ from the conclusions reached by the trial court in finding herein appellants guilty beyond reasonable doubt of the crime charged. The defense invoked by the appellants that they acted in view of the irresistible force and uncontrollable fear of Boy Andy in the unfortunate incident which resulted in the death of Dr. Mariano Gana is devoid of merit. Basis of these two exempting circumstances is the complete absence of freedom. In the case at bar, appellants Ramos, Sublechero and Caluya failed to show that they resisted the threats of Boy Andy and that in spite of their resistance they were still forced to act in accordance with his wishes. Their fear of Boy Andy was merely speculative and there was complete absence of real or reasonable fear for one's life. Had appellants wanted to, they would have easily overpowered Boy Andy who was alone. On the other hand, the manner in which the crime was executed shows that appellants had community of design and that they cooperated and helped each other in the commission thereof. They met in Samson Road, Caloocan City and from there proceeded to the scene of the crime. In the presence of the appellants, Boy Andy bought a rope from a store. Upon entering the house, each one performed his assigned task and after the commission of the crime, they left the scene of the crime and met in the place of Boy Andy to get their respective shares. By and large, the people's evidence is sufficient to sustain the judgment appealed from. However, in the absence of the necessary votes, We have to impose the penalty lower than death which is reclusion perpetua.

WHEREFORE, as modified in the sense that the penalty imposed on herein appellants Ernesto Ramos y Antonio, Eladio Caluya y Binuya and Eduardo Sublechero y Gabuat is reduced to reclusion perpetua, the appealed judgment is AFFIRMED in all other respects. SO ORDERED. Teehankee, (Actg. C.J.), Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 191696 April 10, 2013

ROGELIO DANTIS, Petitioner, vs. JULIO MAGHINANG, JR., Respondent. DECISION MENDOZA, J.: This is a petition for review on certiorari seeking to reverse and set aside the January 25, 2010 Decision1 and the March 23, 2010 Resolution2 of the Court of Appeals (CA). in CA-G.R. CV No. 85258, reversing the March 2, 2005 Decision3 of the Regional Trial Court, Branch 18, Malolos, Bulacan (RTC), in an action for quieting of title and recovery of possession with damages. The Facts The case draws its origin from a complaint4 for quieting of title and recovery of possession with damages filed by petitioner Rogelio Dantis (Rogelio) against respondent Julio Maghinang, Jr. (Julio, Jr.) before the RTC, docketed as Civil Case No. 280-M-2002. Rogelio alleged that he was the registered owner of a parcel of land covered by Transfer Certificate of Title (TCT) No. T-125918, with an area of 5,657 square meters, located in Sta. Rita, San Miguel, Bulacan; that he acquired ownership of the property through a deed of extrajudicial partition of the estate of his deceased father, Emilio Dantis (Emilio), dated December 22, 1993; that he had been paying the realty taxes on the said property; that Julio, Jr. occupied and built a house on a portion of his property without any right at all; that demands were made upon Julio, Jr. that he vacate the premises but the same fell on deaf ears; and that the acts of Julio, Jr. had created a cloud of doubt over his title and right of possession of his property. He, thus, prayed that judgment be rendered declaring him to be the true and real owner of the parcel of land covered by TCT No. T-125918; ordering Julio, Jr. to deliver the possession of that portion of the land he was occupying; and directing Julio, Jr. to pay rentals from October 2000 and attorneys fees of P100,000.00. He added that he was constrained to institute an ejectment suit against Julio, Jr. before the Municipal Trial Court of San Miguel, Bulacan (MTC), but the complaint was dismissed for lack of jurisdiction and lack of cause of action.

In his Answer,5 Julio, Jr. denied the material allegations of the complaint. By way of an affirmative defense, he claimed that he was the actual owner of the 352 square meters (subject lot) of the land covered by TCT No. T-125918 where he was living; that he had been in open and continuous possession of the property for almost thirty (30) years; the subject lot was once tenanted by his ancestral relatives until it was sold by Rogelios father, Emilio, to his father, Julio Maghinang, Sr. (Julio, Sr.); that later, he succeeded to the ownership of the subject lot after his father died on March 10, 1968; and that he was entitled to a separate registration of the subject lot on the basis of the documentary evidence of sale and his open and uninterrupted possession of the property. As synthesized by the RTC from the respective testimonies of the principal witnesses, their diametrically opposed positions are as follows: Plaintiff Rogelio Dantis testified that he inherited 5,657 square meters of land, identified as Lot 6-D-1 of subdivision plan Psd-031421-054315, located at Sta. Rita, San Miguel, Bulacan, through an Extrajudicial Partition of Estate of Emilio Dantis, executed in December 1993 which land was titled later on under his name, Rogelio Dantis, married to Victoria Payawal, as shown by copy of Transfer Certificate of Title No. T-125918, issued by the Register of Deeds of Bulacan on September 29, 1998, declared for taxation purposes as Tax Declaration with ARP No. C20-22-043-07-046. According to him, defendant and his predecessor-in-interest built the house located on said lot. When he first saw it, it was only a small hut but when he was about 60 years old, he told defendant not to build a bigger house thereon because he would need the land and defendant would have to vacate the land. Plaintiff, however, has not been in physical possession of the premises. Defendant Julio Maghinang, Jr., presented by plaintiff as adverse witness, testified that he has no title over the property he is occupying. He has not paid realty taxes thereon. He has not paid any rental to anybody. He is occupying about 352 square meters of the lot. He presented an affidavit executed on September 3, 1953 by Ignacio Dantis, grandfather of Rogelio Dantis and the father of Emilio Dantis. The latter was, in turn, the father of Rogelio Dantis. The affidavit, according to affiant Ignacio Dantis, alleged that Emilio Dantis agreed to sell 352 square meters of the lot to Julio Maghinang on installment. Defendant was then 11 years old in 1952. Defendant Julio Maghinang, Jr. likewise testified for the defendants case as follows: He owns that house located at Sta. Rita, San Miguel, Bulacan, on a 352 square meter lot. He could not say that he is the owner because there is still question about the lot. He claimed that his father, Julio Maghinang (Sr.), bought the said lot from the parents of Rogelio Dantis. He admitted that the affidavit was not signed by the alleged vendor, Emilio Dantis, the father of Rogelio Dantis. The receipt he presented was admittedly a mere photocopy. He spent P50,000.00 as attorneys fees. Since 1953, he has not declared the property as his nor paid the taxes thereon because there is a problem.6 On March 2, 2005, the RTC rendered its decision declaring Rogelio as the true owner of the entire 5,657-square meter lot located in Sta. Rita, San Miguel, Bulacan, as evidenced by his TCT over the same. The RTC did not lend any probative value on the documentary evidence of sale adduced by Julio, Jr. consisting of: 1) an affidavit allegedly executed by Ignacio Dantis (Ignacio), Rogelios grandfather, whereby said affiant attested, among others, to the sale of the subject lot made by his son, Emilio, to Julio, Sr. (Exhibit "3")7; and 2) an undated handwritten receipt of initial downpayment in the amount of 100.00 supposedly issued by Emilio to Julio, Sr. in connection with the sale of the subject lot (Exhibit "4").8 The RTC ruled that even if these documents were adjudged as competent evidence, still, they would only serve as proofs that the purchase price for the subject lot had not yet been completely paid and, hence, Rogelio was not duty-bound to deliver the property to Julio, Jr. The RTC found Julio, Jr. to be a mere possessor by tolerance. The dispositive portion of the RTC decision reads:

WHEREFORE, Judgment is hereby rendered as follows: 1. quieting the title and removing whatever cloud over the title on the parcel of land, with area of 5,647 sq. meters, more or less, located at Sta. Rita, San Miguel, Bulacan, covered by Transfer Certificate of Title No. T-125918 issued by the Register of Deeds of Bulacan in the name of "Rogelio Dantis, married to Victoria Payawal"; 2. declaring that Rogelio Dantis, married to Victoria Payawal, is the true and lawful owner of the aforementioned real property; and 3. ordering defendant Julio Maghinang, Jr. and all persons claiming under him to peacefully vacate the said real property and surrender the possession thereof to plaintiff or latters successors-ininterest. No pronouncement as to costs in this instance. SO ORDERED.9 Julio, Jr. moved for a reconsideration of the March 2, 2005 Decision, but the motion was denied by the RTC in its May 3, 2005 Order.10 Feeling aggrieved, Julio, Jr. appealed the decision to the CA. On January 25, 2010, the CA rendered the assailed decision in CA-G.R. CV NO. 85258, finding the appeal to be impressed with merit. It held that Exhibit "4" was an indubitable proof of the sale of the 352-square meter lot between Emilio and Julio, Sr. It also ruled that the partial payment of the purchase price, coupled with the delivery of the res, gave efficacy to the oral sale and brought it outside the operation of the statute of frauds. Finally, the court a quo declared that Julio, Jr. and his predecessors-in-interest had an equitable claim over the subject lot which imposed on Rogelio and his predecessors-in-interest a personal duty to convey what had been sold after full payment of the selling price. The decretal portion of the CA decision reads: IN VIEW OF THE FOREGOING, the decision appealed from is reversed. The heirs of Julio Maghinang Jr. are declared the owners of the 352-square meter portion of the lot covered by TCT No. T-125968 where the residence of defendant Julio Maghinang is located, and the plaintiff is ordered to reconvey the aforesaid portion to the aforesaid heirs, subject to partition by agreement or action to determine the exact metes and bounds and without prejudice to any legal remedy that the plaintiff may take with respect to the unpaid balance of the price. SO ORDERED.11 The motion for reconsideration12 filed by Rogelio was denied by the CA in its March 23, 2010 Resolution. Unfazed, he filed this petition for review on certiorari before this Court. Issues: The fundamental question for resolution is whether there is a perfected contract of sale between Emilio and Julio, Sr. The determination of this issue will settle the rightful ownership of the subject lot. Rogelio submits that Exhibit "3" and Exhibit "4" are devoid of evidentiary value and, hence, deserve scant consideration. He stresses that Exhibit "4" is inadmissible in evidence being a mere photocopy, and the existence and due execution thereof had not been established. He argues that

even if Exhibit "4" would be considered as competent and admissible evidence, still, it would not be an adequate proof of the existence of the alleged oral contract of sale because it failed to provide a description of the subject lot, including its metes and bounds, as well as its full price or consideration.13 Rogelio argues that while reconveyance may be availed of by the owner of a real property wrongfully included in the certificate of title of another, the remedy is not obtainable herein since he is a transferee in good faith, having acquired the land covered by TCT No. T-125918, through a Deed of Extrajudicial Partition of Estate.14 He asserts that he could not be considered a trustee as he was not privy to Exhibit "4." In any event, he theorizes that the action for reconveyance on the ground of implied trust had already prescribed since more than 10 years had lapsed since the execution of Exhibit "4" in 1953. It is the petitioners stance that Julio, Jr. did not acquire ownership over the subject lot by acquisitive prescription contending that prescription does not lie against a real property covered by a Torrens title. He opines that his certificate of title to the subject lot cannot be collaterally attacked because a Torrens title is indefeasible and must be respected unless challenged in a direct proceeding.15 The Courts Ruling In the case at bench, the CA and the RTC reached different conclusions on the question of whether or not there was an oral contract of sale. The RTC ruled that Rogelio Dantis was the sole and rightful owner of the parcel of land covered by TCT No. T-125918 and that no oral contract of sale was entered into between Emilio Dantis and Julio Maghinang, Sr. involving the 352-square meter portion of the said property. The CA was of the opposite view. The determination of whether there existed an oral contract of sale is essentially a question of fact. In petitions for review under Rule 45, the Court, as a general rule, does not venture to re-examine the evidence presented by the contending parties during the trial of the case considering that it is not a trier of facts and the findings of fact of the CA are conclusive and binding upon this Court. The rule, however, admits of several exceptions. One of which is when the findings of the CA are contrary to those of the trial court.16 Considering the incongruent factual conclusions of the CA and the RTC, this Court is constrained to reassess the factual circumstances of the case and reevaluate them in the interest of justice. The petition is meritorious. It is an age-old rule in civil cases that he who alleges a fact has the burden of proving it and a mere allegation is not evidence.17 After carefully sifting through the evidence on record, the Court finds that Rogelio was able to establish a prima facie case in his favor tending to show his exclusive ownership of the parcel of land under TCT No. T-125918 with an area of 5,657 square meters, which included the 352-square meter subject lot. From the records, it appears that TCT No. T-125918 is a derivative of TCT No. T-256228, which covered a bigger area of land measuring 30,000 square meters registered in the name of Emilio Dantis; that Emilio died intestate on November 13, 1952; that Emilios five heirs, including Rogelio, executed an extra-judicial partition of estate on December 22, 1993 and divided among themselves specific portions of the property covered by TCT No. T-256228, which were already set apart by metes and bounds; that the land known as Lot 6-D-1 of the subdivision plan Psd-031421-054315 with an area of 5,657 sq. m. went to Rogelio, the property now covered by TCT No. T-125918; and that the property was declared for realty tax purpose in the name of Rogelio for which a tax declaration was issued in his name; and that the same had not been transferred to anyone else since its issuance.

In light of Rogelios outright denial of the oral sale together with his insistence of ownership over the subject lot, it behooved upon Julio, Jr. to contravene the formers claim and convince the court that he had a valid defense. The burden of evidence shifted to Julio, Jr. to prove that his father bought the subject lot from Emilio Dantis. In Jison v. Court of Appeals,18 the Court held: Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of "preponderance of evidence" refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth.19 Julio, Jr. failed to discharge this burden. His pieces of evidence, Exhibit "3" and Exhibit "4," cannot prevail over the array of documentary and testimonial evidence that were adduced by Rogelio. The totality of Julio, Jr.s evidence leaves much to be desired. To begin with, Exhibit "3," the affidavit of Ignacio, is hearsay evidence and, thus, cannot be accorded any evidentiary weight. Evidence is hearsay when its probative force depends on the competency and credibility of some persons other than the witness by whom it is sought to be produced. The exclusion of hearsay evidence is anchored on three reasons: 1) absence of cross-examination; 2) absence of demeanor evidence; and 3) absence of oath.20 Jurisprudence dictates that an affidavit is merely hearsay evidence where its affiant/maker did not take the witness stand.21 The sworn statement of Ignacio is of this kind. The affidavit was not identified and its averments were not affirmed by affiant Ignacio. Accordingly, Exhibit "3" must be excluded from the judicial proceedings being an inadmissible hearsay evidence. It cannot be deemed a declaration against interest for the matter to be considered as an exception to the hearsay rule because the declarant was not the seller (Emilio), but his father (Ignacio). Exhibit "4," on the other hand, is considered secondary evidence being a mere photocopy which, in this case, cannot be admitted to prove the contents of the purported undated handwritten receipt. The best evidence rule requires that the highest available degree of proof must be produced. For documentary evidence, the contents of a document are best proved by the production of the document itself to the exclusion of secondary or substitutionary evidence, pursuant to Rule 130, Section 322. A secondary evidence is admissible only upon compliance with Rule 130, Section 5, which states that: when the original has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Accordingly, the offeror of the secondary evidence is burdened to satisfactorily prove the predicates thereof, namely: (1) the execution or existence of the original; (2) the loss and destruction of the original or its non-production in court; and (3) the unavailability of the original is not due to bad faith on the part of the proponent/offeror. Proof of the due execution of the document and its subsequent loss would constitute the basis for the introduction of secondary evidence.23 In MCC Industrial Sales Corporation v. Ssangyong Corporation,24 it was held that where the missing document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved. Guided by these norms, the Court holds that Julio, Jr. failed to prove the due execution of the original of Exhibit "4" as well as its subsequent loss. A nexus of logically related circumstance

rendered Julio, Jr.s evidence highly suspect. Also, his testimony was riddled with improbabilities and contradictions which tend to erode his credibility and raise doubt on the veracity of his evidence. First, the claim of Julio, Jr. that Emilio affixed his signature on the original of Exhibit "4" in 1953 is highly improbable because record shows that Emilio died even before that year, specifically, on November 13, 1952. Excerpts from Julio, Jr.s testimony relative to this matter are as follows: Atty. Vicente Millora (On Cross-examination) Q: You dont remember how old you were when this according to you you witnessed Emilio Dantis signed this? A: Eleven years old, Sir. Q: So that was 1953? A: Yes, Sir. Q: And you were then? A: I was born October 1942, Sir. Q: You were eleven (11) years old? A: Yes, Sir. Q: And you mean to say that you witnessed the signing allegedly of the original of Exhibit "4" when you were eleven (11) years old? A: Yes, Sir. Q: And you remember what was signed in this receipt. From your memory can you tell the title of this Exhibit "4"? A: What I can say that it is a Sale, Sir. Q: So, when you said that you witnessed an alleged sale you are referring to Exhibit "4"? A: Yes, Sir.25 (Emphasis supplied) Second, Julio, Jr.s testimony pertinent to the alleged loss of the original of Exhibit "4" is laden with inconsistencies that detract from his credibility. His testimony bears the earmarks of falsehood and, hence, not reliable. Julio, Jr. testified in this wise: Atty. Roldan Villacorta (On Direct examination)

Q: Mr. Witness, I noticed that this document marked as Exhibit "4" is only a photocopy, where is the original of this document? A: The original was with the safekeeping of my parents because of the lapse of time the original was misplaced, Sir.26 The above testimony of Julio, Jr. tends to give the impression that the original of the document was lost while it was in the possession of his parents. During cross-examination, however, he testified that it was lost while it was in his possession. Atty. Vicente Millora (On Cross-examination) Q: x x x Where did you keep that document? A: I was the one keeping that document because I live in different places, [the said] it was lost or misplaced, Sir. Q: In other words, it was lost while the same was in your possession?? A: Yes, Sir.27 (Emphasis supplied) Still, later, Julio, Jr. claimed that his sister was the one responsible for the loss of the original of Exhibit "4" after borrowing the same from him. Atty. Vicente Millora (On Cross-examination) Q: So, who is your sister to whom you gave the original? A: Benedicta Laya, Sir. Q: In other words now, you did not lost the document or the original of Exhibit "4" but you gave it to your sister, am I correct? A: I just lent to her the original copy, Sir. Q: So, you lent this original of Exhibit "4" to your sister and your sister never returned the same to you? A: Yes, Sir, because it was lost, that was the only one left in her custody. Interpreter: Witness referring to the xerox copy. Atty. Vicente Millora Q: In other words, it was your sister who lost the original, is that correct?

A: Yes, Sir, when I lent the original.28 (Emphasis supplied) The Court also notes the confused narration of Julio, Jr. regarding the last time he saw the original of Exhibit "4." Atty. Vicente Millora (On Cross-examination) Q: And when did you last see the original? A: When my mother died in 1993 that was the last time I tried to see the original of the document after her interment, Sir. Q: Where did you see this document? A: From the safekeeping of my mother, Sir.29 xxxx Q: When did you get this Exhibit "4" now, the photocopy from your sister? A: When the interment of my mother in September 1993, Sir. Q: Now, let us reform. Which one did you get after the interment of your mother, this Exhibit "4" or the original? A: I asked that xerox copy because I have lost the original and I could not find the same, Sir. Q: So, from the safe of your mother after her interment, what used you found and got this Exhibit "4"? A: Yes, Sir, from my sister. Q: So, not from your mother safe? A: The original was taken from the safe of my mother, Sir. Q: So after your mothers death you never saw the original? A: I did not see it anymore because the original was lost before she died, Sir.30 (Underscoring supplied) Third, it is quite strange that two receipts were prepared for the initial payment of 100.00 in connection with the sale of the subject lot. The Court notes that the contents of Exhibit "4" were similar to those of Annex "A"31 of Julio, Jr.s Answer, dated June 9, 2002. Annex "A," however, was typewritten and the name of the recipient indicated therein was a certain Cornelio A. Dantis, whose identity and participation in the alleged sale was never explained.

Fourth, apart from the lone testimony of Julio, Jr., no other witness who knew or read Exhibit "4," much less saw it executed, was presented. In the absence of any shred of corroborative evidence, the Court cannot help but entertain doubts on the truthfulness of Julio, Jr.s naked assertion. Assuming, in gratia argumenti, that Exhibit "4" is admissible in evidence, there will still be no valid and perfected oral contract for failure of Julio, Jr. to prove the concurrence of the essential requisites of a contract of sale by adequate and competent evidence. By the contract of sale, one of the contracting parties obligates himself to transfer the ownership of, and to deliver, a determinate thing, and the other to pay therefor a price certain in money or its equivalent.32 A contract of sale is a consensual contract and, thus, is perfected by mere consent which is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract.33 Until the contract of sale is perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation between the parties.34 The essential elements of a contract of sale are: a) consent or meeting of the minds, that is, consent to transfer ownership in exchange for the price; b) determinate subject matter; and c) price certain in money or its equivalent.35 The absence of any of the essential elements shall negate the existence of a perfected contract of sale.36 Seemingly, Julio, Jr. wanted to prove the sale by a receipt when it should be the receipt that should further corroborate the existence of the sale. At best, his testimony only alleges but does not prove the existence of the verbal agreement. Julio, Jr. miserably failed to establish by preponderance of evidence that there was a meeting of the minds of the parties as to the subject matter and the purchase price. The chief evidence of Julio, Jr. to substantiate the existence of the oral contract of sale is Exhibit "4." For a better understanding and resolution of the issue at hand, Exhibit "4" is being reproduced here: Alamin ng sino mang Makababasa Akong si Emilio Dantis may sapat na Gulang may asawa naninirahan sa Sta Rita San Miguel Bul. ay kusang nagsasasay ng sumosunod. Na ako Tumanggap Kay Julio Maghinang ng P100.00 peso cuartang Pilipino, bilang paunang bayad sa Lupa niyang nilote sa akin 400 apat na raan mahigit na metro cudrado. Testigo Tumangap, Emilio a Dantis A perusal of the above document would readily show that it does not specify a determinate subject matter. Nowhere does it provide a description of the property subject of the sale, including its metes and bounds, as well as its total area. The Court notes that while Julio, Jr. testified that the land subject of the sale consisted of 352 square meters, Exhibit "4," however, states that its more than 400 square meters. Moreover, Exhibit "4" does not categorically declare the price certain in money. Neither does it state the mode of payment of the purchase price and the period for its payment. In Swedish Match, AB v. Court of Appeals,37 the Court ruled that the manner of payment of the purchase price was an essential element before a valid and binding contract of sale could exist.

Albeit the Civil Code does not explicitly provide that the minds of the contracting parties must also meet on the terms or manner of payment of the price, the same is needed, otherwise, there is no sale.38 An agreement anent the manner of payment goes into the price so much so that a disagreement on the manner of payment is tantamount to a failure to agree on the price.39 Further, in Velasco v. Court of Appeals,40 where the parties already agreed on the object of sale and on the purchase price, but not on how and when the downpayment and the installment payments were to be paid, this Court ruled: Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed, this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. The fact, therefore, that the petitioners delivered to the respondent the sum ofP10,000.00 as part of the down-payment that they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale agreement between the parties herein under Art. 1482 of the new Civil Code, as the petitioners themselves admit that some essential matter - the terms of payment - still had to be mutually covenanted.41 The CA held that partial performance of the contract of sale- giving of a downpayment coupled with the delivery of the res - took the oral contract out of the scope of the Statute of Frauds. This conclusion arose from its erroneous finding that there was a perfected contract of sale. The above disquisition, however, shows that there was none. There is, therefore, no basis for the application of the Statute of Frauds. The application of the Statute of Frauds presupposes the existence of a perfected contract.42 As to the delivery of the res, it does not appear to be a voluntary one pursuant to the purported sale. If Julio, Jr. happened to be there, it was because his ancestors tenanted the land. It must be noted that when Julio, Jr. built his house, Rogelio protested. WHEREFORE, the petition is GRANTED. The assailed January 25, 2010 Decision and the March 23, 2010 Resolution of the Court Appeals, in CA-G.R. CV No. 85258, are REVERSED and SET ASIDE. The March 2, 2005 Decision of the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil Case No. 280-M-2002, is REINSTATED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 98376 August 16, 1991 PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. BAYANI S. RIVERA, Judge, Branch 129 , Regional Trial Court of Kalookan City, and WILFREDO L. EMBRANO, respondent. The Solicitor General for petitioner.

Eduardo S. Rodriguez for private respondent.

NARVASA, J.:p The special civil action of certiorari at bar instituted in this Court to annul an order rendered by the Regional Trial Court at Kalookan City, Branch 129, in a prosecution for arson docketed in that Court as Criminal Case No. 28820 (87). Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's theory that he wilfully caused the fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third floors of the "I Love You Restaurant and Sauna Bath" owned by Juanita L. Tan, located at No. 2 L. Bustamante St. Kalookan City. 1 Among the witnesses presented by the Government to demonstrate Sembrano's culpability was Benjamin Lee, a room boy of the restaurant and bath. Lee testified on direct examination at the hearing of December 8, 1987. His testimony was essentially that Sembrano had run out of the VIP room where the fire had started and refused to heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987 during which he was cross-examined by defense counsel, gave additional evidence on redirect examination, was again questioned on recross-examination by the same defense counsel, and thereafter allowed to step down. 2 The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its case, and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S. Rodriguez. 3The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination. 4 The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin Lee's testimony, he came to the conclusion that " there seems to be many points and questions that should have been asked but were not profounded (sic) by the other defense counsel who conducted.. (the cross-examination). It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)" and the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross examination was sought to be justified. Over objections of the prosecution, the Court 5 granted the motion. Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before the Court for further cross-examination. These efforts met with no success; and the trial had to be postponed several times. It appears that Lee had terminated his employment and moved elsewhere without indicating his new address. So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable," and to the fact that "Lee has already been thoroughly examined by the former defense counsel," and praying upon these premises "that the farther examination of Benjamin Lee be dispensed with and ... the prosecution ... allowed to terminate the presentation of its evidence." By Order dated October 2, 1990, 6 the Trial Court denied the motion to dispense with the recall of Benjamin Lee. In fact, it ordered the testimony of Benjamin Lee for the prosecution xx stricken off the record for lack of complete cross-examination" because the witness could no longer be found, and "the failure of counsel for the accused to further cross-examine the witness is not the fault of the defense. 7

In the same order, the Court also set the "reception of further evidence for the prosecution, if any, ... on October 23, 1990 xx as earlier scheduled." Subsequently, it denied the private prosecutor's motion for reconsideration of the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor General. The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of discretion in authorizing the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking out said witness' testimony for want of further cross-examination. There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. This is clear from a reading of Section 9, Rule 132 of the Rules of Court, as amended, 9 viz.: SEC. 9. Recalling witness. After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a particular set of attendant circumstances. The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the need to propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the crossexamination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness. In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than said movant's general claim that certain questions unspecified, it must be stressed had to be asked. In doing so, it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion. So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that he could no longer be found and produced for further examination. In the first place, the Court acted unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior opportunity to show why the striking out should not be decreed. More importantly, the striking out was directed without any showing whatever by the defense of the indispensability of further cross-examination, what it was that would have been elicited by further cross-examination rendering valueless all that the witness had previously stated. It should be stressed that Lee was subjected both to cross-examination and recross-examination by former counsel of the accused Sembrano. Obviously the latter was satisfied that there had been sufficient cross-examination of the witness. Absence of cross-examination may not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). And there is no showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the Court, much less of the expected nature or tenor of his additional testimony which, because not presented, would

necessarily cause the evidence earlier given by Lee to become hearsay or otherwise incompetent, and therefore, amenable to being stricken from the record. WHEREFORE, the petition is GRANTED and the respondent Court's challenged Order dated October 2, 1990 is NULLIFIED AND SET ASIDE, with costs against private respondent. IT IS SO ORDERED. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Baguio City< THIRD DIVISION G.R. No. 160855 April 16, 2008

CONCEPCION CHUA GAW, petitioner, vs. SUY BEN CHUA and FELISA CHUA, respondents. DECISION NACHURA, J.: This is a Petition for Review on Certiorari from the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 66790 and Resolution2 denying the motion for reconsideration. The assailed decision affirmed the ruling of the Regional Trial Court (RTC) in a Complaint for Sum of Money in favor of the plaintiff. The antecedents are as follows: Spouses Chua Chin and Chan Chi were the founders of three business enterprises3 namely: Hagonoy Lumber, Capitol Sawmill Corporation, and Columbia Wood Industries. The couple had seven children, namely, Santos Chua; Concepcion Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. On June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. At the time of Chua Chins death, the net worth of Hagonoy Lumber was P415,487.20.4 On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of Hereditary Rights in Favor of a Co-Heir5 (Deed of Partition, for brevity), wherein the heirs settled their interest in Hagonoy Lumber as follows: one-half (1/2) thereof will pertain to the surviving spouse, Chan Chi, as her share in the conjugal partnership; and the other half, equivalent to P207,743.60, will be divided among Chan Chi and the seven children in equal pro indiviso shares equivalent to P25,967.00 each.6 In said document, Chan Chi and the six children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc Huan.

In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua, to lend them P200,000.00 which they will use for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within six (6) months without interest.7 On June 7, 1988, respondent issued in their favor China Banking Corporation Check No. 2408108 for P200,000.00 which he delivered to the couples house in Marilao, Bulacan. Antonio later encashed the check. On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent.9 Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period. Respondent sent the couple a demand letter,10 dated March 25, 1991, requesting them to settle their obligation with the warning that he will be constrained to take the appropriate legal action if they fail to do so. Failing to heed his demand, respondent filed a Complaint for Sum of Money against the spouses Gaw with the RTC. The complaint alleged that on June 7, 1988, he extended a loan to the spouses Gaw for P200,000.00, payable within six months without interest, but despite several demands, the couple failed to pay their obligation.11 In their Answer (with Compulsory Counterclaim), the spouses Gaw contended that the P200,000.00 was not a loan but petitioners share in the profits of Hagonoy Lumber, one of her familys businesses. According to the spouses, when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy Lumber. They claimed that respondent persuaded petitioner to temporarily forego her demand as it would offend their mother who still wanted to remain in control of the family businesses. To insure that she will defer her demand, respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber.12 In his Reply, respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills Corporation, Columbia Wood Industries, and Hagonoy Lumber. He asserted that the spouses Gaw, in fact, have no right whatsoever in these businesses that would entitle them to an accounting thereof. Respondent insisted that the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber.13 With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the respondent has arrogated to himself. They claimed that, despite repeated demands, respondent has failed and refused to account for the operations of Hagonoy Lumber and to deliver her share therein. They then prayed that respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6) share thereof, which was estimated to be worth not less than P500,000.00.14 In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. In turn, he became the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale dated August 1, 1990.15 Defendants, in their reply,16 countered that the documents on which plaintiff anchors his claim of ownership over Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties. They claimed that these documents are mere paper arrangements which

were prepared only upon the advice of a counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been executed by the heirs.17 During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. On direct examination, respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. He narrated that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. According to respondent, when he was in high school, it was his father who managed the business but he and his other siblings were helping him. Later, his sister, Chua Sioc Huan, managed Hogonoy Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy Lumber when he was in high school, but he stopped when he got married and found another job. He said that he now owns the lots where Hagonoy Lumber is operating.18 On cross-examination, respondent explained that he ceased to be a stockholder of Capitol Sawmill when he sold his shares of stock to the other stockholders on January 1, 1991. He further testified that Chua Sioc Huan acquired Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. He, in turn, became the owner of Hagonoy Lumber when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990. 19 On re-direct examination, respondent stated that he sold his shares of stock in Capitol Sawmill for P254,000.00, which payment he received in cash. He also paid the purchase price of P255,000.00 for Hagonoy Lumber in cash, which payment was not covered by a separate receipt as he merely delivered the same to Chua Sioc Huan at her house in Paso de Blas, Valenzuela. Although he maintains several accounts at Planters Bank, Paluwagan ng Bayan, and China Bank, the amount he paid to Chua Sioc Huan was not taken from any of them. He kept the amount in the house because he was engaged in rediscounting checks of people from the public market. 20 On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure.21 On February 11, 2000, the RTC rendered a Decision in favor of the respondent, thus: WHEREFORE, in the light of all the foregoing, the Court hereby renders judgement ordering defendant Concepcion Chua Gaw to pay the [respondent] the following: 1. P200,000.00 representing the principal obligation with legal interest from judicial demand or the institution of the complaint on November 19, 1991; 2. P50,000.00 as attorneys fees; and 3. Costs of suit. The defendants counterclaim is hereby dismissed for being devoid of merit. SO ORDERED.22 The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. It noted that respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the aforesaid amount. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioners advance share in the profits of their parents businesses.

The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale, evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never impugned. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception to the best evidence rule. As for the Deed of Sale, since the contents thereof have not been put in issue, the non-presentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents. Also, the parties to the documents themselves do not contest their validity. Ultimately, petitioner failed to establish her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein. As for petitioners claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries, the trial court held that respondent is under no obligation to make such an accounting since he is not charged with operating these enterprises.23 Aggrieved, petitioner appealed to the CA, alleging that the trial court erred (1) when it considered the amount ofP200,000.00 as a loan obligation and not Concepcions share in the profits of Hagonoy Lumber; (2) when it considered as evidence for the defendant, plaintiffs testimony when he was called to testify as an adverse party under Section 10 (e), Rule 132 of the Rules of Court; and (3) when it considered admissible mere copies of the Deed of Partition and Deed of Sale to prove that respondent is now the owner of Hagonoy Lumber.24 On May 23, 2003, the CA affirmed the Decision of the RTC. 25 The appellate court found baseless the petitioners argument that the RTC should not have included respondents testimony as part of petitioners evidence. The CA noted that the petitioner went on a fishing expedition, the taking of respondents testimony having taken up a total of eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same. Moreover, the CA held that the petitioner failed to show that the inclusion of respondents testimony in the statement of facts in the assailed decision unduly prejudiced her defense and counterclaims. In fact, the CA noted that the facts testified to by respondent were deducible from the totality of the evidence presented. The CA likewise found untenable petitioners claim that Exhibits "H" (Deed of Sale) and Exhibit "I" (Deed of Partition) were merely temporary paper arrangements. The CA agreed with the RTC that the testimony of petitioner regarding the matter was uncorroborated she should have presented the other heirs to attest to the truth of her allegation. Instead, petitioner admitted the due execution of the said documents. Since petitioner did not dispute the due execution and existence of Exhibits "H" and "I", there was no need to produce the originals of the documents in accordance with the best evidence rule.26 On December 2, 2003, the CA denied the petitioners motion for reconsideration for lack of merit.27 Petitioner is before this Court in this petition for review on certiorari, raising the following errors: I. THAT ON THE PRELIMINARY IMPORTANT RELATED ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED IN THE APPLICATION AND LEGAL SIGNIFICANCE OF THE RULE ON EXAMINATION OF ADVERSE PARTY OR HOSTILE WITNESS UNDER SECTION 10 (d) AND (e) OF RULE 132, CAUSING SERIOUS DOUBT ON THE LOWER COURTS APPEALED DECISIONS OBJECTIVITY,ANNEX "C". II. THAT ON THE IMPORTANT LEGAL ISSUE RELATIVE TO THE AFORESAID TWO OPPOSING CLAIMS OF RESPONDENT AND PETITIONER, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED UNDER THE LOWER COURTS

DECISION ANNEX "C" AND THE QUESTIONED DECISION OF MAY 23, 2003 (ANNEX "A") AND THE RESOLUTION OF DECEMBER 2, 2003, (ANNEX "B") IN DEVIATING FROM AND DISREGARDING ESTABLISHED SUPREME COURT DECISIONS ENJOINING COURTS NOT TO OVERLOOK OR MISINTERPRET IMPORTANT FACTS AND CIRCUMSTANCES, SUPPORTED BY CLEAR AND CONVINCING EVIDENCE ON RECORD, AND WHICH ARE OF GREAT WEIGHT AND VALUE, WHICH WOULD CHANGE THE RESULT OF THE CASE AND ARRIVE AT A JUST, FAIR AND OBJECTIVE DECISION. (Citations omitted) III. THAT FINALLY, AS TO THE OTHER LEGAL IMPORTANT ISSUE RELATIVE TO CLAIM OR OWNERSHIP OF THE "Hagonoy Lumber" FAMILY BUSINESS, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED ON THE REQUIREMENTS AND CORRECT APPLICATION OF THE "BEST EVIDENCE RULE" UNDER SECTION 3, RULE 130 OF THE REVISED RULES OF COURT.28 The petition is without merit. Petitioner contends that her case was unduly prejudiced by the RTCs treatment of the respondents testimony as adverse witness during cross-examination by his own counsel as part of her evidence. Petitioner argues that the adverse witness testimony elicited during cross-examination should not be considered as evidence of the calling party. She contends that the examination of respondent as adverse witness did not make him her witness and she is not bound by his testimony, particularly during cross-examination by his own counsel.29 In particular, the petitioner avers that the following testimony of the respondent as adverse witness should not be considered as her evidence: (11.a) That RESPONDENT-Appellee became owner of the "HAGONOY LUMBER" business when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990 (EXH.H); (11.b) That the "HAGONOY LUMBER," on the other hand, was acquired by the sister Chua Sioc Huan, by virtue of Extrajudicial Partition and Renunciation of Hereditary Rights in favor of a Co-Heir (EXH. I); (11.c) That the 3 lots on which the "HAGONOY LUMBER" business is located were acquired by Lu Pieng from the Santos family under the Deed of Absolute Sale (EXH. J); that Lu Pieng sold the Lots to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua Siok Huan eventually became owner of the 3 Lots; and in 1989 Chua Sioc Huan sold them to RESPONDENTAppellee (EXHS. Q and P); that after he acquired the 3 Lots, he has not sold them to anyone and he is the owner of the lots.30 We do not agree that petitioners case was prejudiced by the RTCs treatment of the respondents testimony during cross-examination as her evidence. If there was an error committed by the RTC in ascribing to the petitioner the respondents testimony as adverse witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way, change the result of the case. In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. The rule is that the plaintiff must rely on the strength of his own evidence and not upon the weakness of

the defendants evidence. Thus, it barely matters who with a piece of evidence is credited. In the end, the court will have to consider the entirety of the evidence presented by both parties. Preponderance of evidence is then determined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it.31 That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the formers testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party,32 except by evidence of his bad character.33 Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.34 A party who calls his adversary as a witness is, therefore, not bound by the latters testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on.35 A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him.36 This, the petitioner failed to do. In the present case, the petitioner, by her own testimony, failed to discredit the respondents testimony on how Hagonoy Lumber became his sole property. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrangement. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business. Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented.37 All the parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the evidence.38 As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered, regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony. Significantly, the RTCs finding that the P200,000.00 was given to the petitioner and her husband as a loan is supported by the evidence on record. Hence, we do not agree with the petitioners contention that the RTC has overlooked certain facts of great weight and value in arriving at its decision. The RTC merely took into consideration evidence which it found to be more credible than the self-serving and uncorroborated testimony of the petitioner. At this juncture, we reiterate the well-entrenched doctrine that the findings of fact of the CA affirming those of the trial court are accorded great respect, even finality, by this Court. Only errors of law, not of fact, may be reviewed by this Court in petitions for review on certiorari under Rule 45.39 A departure from the general rule may be warranted where the findings of fact of the CA are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record.40 There is no reason to apply the exception in the instant case because the findings and conclusions of the CA are in full accord with those of the trial court. These findings are buttressed by

the evidence on record. Moreover, the issues and errors alleged in this petition are substantially the very same questions of fact raised by petitioner in the appellate court. On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of indebtedness.41 A check, the entries of which are in writing, could prove a loan transaction.42 It is pure naivet to insist that an entrepreneur who has several sources of income and has access to considerable bank credit, no longer has any reason to borrow any amount. The petitioners allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is implausible. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent. However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. By virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. Thus, when the respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the sole owner of Hagonoy Lumber. At that time, both petitioner and respondent no longer had any interest in the business enterprise; neither had a right to demand a share in the profits of the business. Respondent became the sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an advance on petitioners share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber. Even assuming, arguendo, that the check was an advance on the petitioners share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against his personal, and not against the business enterprises account. It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary Public. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity.43 It is entitled to full faith and credit upon its face.44 A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law.45 A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner.46 Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not the result of bona fide negotiations between a true seller and buyer. The "best evidence rule" as encapsulated in Rule 130, Section 3,47 of the Revised Rules of Civil Procedure applies only when the content of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original.48 Moreover, production of the original may be dispensed with, in the trial courts discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.49 Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition.50 As for the Deed of Sale, petitioner had, in effect, admitted its

genuineness and due execution when she failed to specifically deny it in the manner required by the rules.51 The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provisional paper arrangements made upon the advice of counsel.52 Apparently, the petitioner does not contest the contents of these deeds but alleges that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary. An agreement or the contract between the parties is the formal expression of the parties rights, duties and obligations. It is the best evidence of the intention of the parties.53 The parties intention is to be deciphered from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract.54 Thus, when the terms of an agreement have been reduced to writing, it is deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.55 WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 66790 dated May 23, 2003 and Resolution dated December 2, 2003 are AFFIRMED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice Republic of the Philippines SUPREME COURT Manila G.R. No. 179709 July 6, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FILOMENO MAYINGQUE, GREGORIO MAYINGQUE, and TORIBIO MAYINGQUE y SANICO, Defendants-Appellants. DECISION BERSAMIN, J.: Appellants Toribio Mayingque alias Loloy (Toribio), Gregorio Mayingque alias Gorio (Gregorio), and Filomeno Mayingque alias Boy Roti (Filomeno) appeal the decision promulgated on June 15, 2007 by the Court of Appeals (CA)1 affirming their conviction for murder that the Regional Trial Court (RTC), Branch 275, in Las Pias City handed down, penalizing each with reclusion perpetua, and ordering them to pay P50,000.00 to the heirs of deceased Edgardo Sumalde Tusi (Edgardo), and P20,000.00 as burial expenses to the wife of Tusi. 2 The appellants and one Edwin Macas (Edwin) were indicted for the murder of Edgardo under the amended information dated June 28, 1999,3 charging them thus: That on or about the 30th day of May, 1999, in the City of Las Pias, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating

together and all of them mutually helping and aiding one another, without justifiable motive with intent to kill and by means of treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously assault, attack and stab one EDGARDO SUMALDE TUSI, with deadly weapons (knife and bolo), hitting the victim on the different parts of his body, thereby inflicting upon the latter multiple mortal stab wounds, which directly caused his death. CONTRARY TO LAW. At arraignment, the appellants pleaded not guilty to the information, as amended. Edwin remained at large to this date.4 Evidence of the Prosecution The Prosecution presented Salvacion Tusi (Salvacion), wife of Edgardo, the victim, who testified that she knew the appellants because they usually had their drinking sessions on Sundays at Edwins place, which was beside her residence at Pedro Sabido Street, BF Resort Village, Las Pias City; that in one such drinking session, Edgardo, annoyed by the noise made by the appellants and Edwin, was prompted to admonish them to tone down their voices; that the appellants and Edwin resented Edgardos admonition;5 that while she and Edgardo were resting in front of their house at around 5 pm on May 30, 1999, Toribio arrived and without saying anything stabbed Edgardo twice on his side; that she shouted for help, but her cousin Ruben Bernal could not do anything because Edwin, Filomeno and Gregorio had meanwhile joined Teofilo in assaulting Edgardo.6 Ruben Bernal and Jaime Bernal corroborated Salvacions recollection of the assault on Edgardo. According to them, the appellants ganged up on Edgardo, with Teofilo wielding a kitchen knife with which he stabbed Edgardo twice and Gregorio hacking Edgardo on the head with a bolo while Filomeno and Edwin restrained Edgardo. They heard Edwin tell the appellants to ensure that Edgardo was lifeless before leaving him.7 Dr. Romeo T. Salen, Medico Legal Officer of the Western Police District (now Manila Police District) Crime Laboratory, appeared in court in representation of Dr. Emmanuel L. Aranas, and brought the following documents: (a) Request for Examination on the Cadaver of the deceased transmitted by the Las Pias Police and received by Dr. Aranas; (b) Certification of Identification and Consent for Autopsy signed by the brother of Edgardo; (c) Post Mortem Examination or Anatomical Sketch; (d) Medico Legal Report; and (e) Death Certificate of Edgardo prepared by Dr. Aranas.8 Dr. Salen explained that based on Dr. Aranas written findings, Edgardo had sustained 12 wounds in the head, neck and chest, eight of which had been fatal.9 Evidence of the Defense For the Defense, the three appellants and one Agustin Tano (Tano) were presented as witnesses. Tano was on his way home in late afternoon of May 30, 1999 when he saw Edgardo punch and then hit Toribio with a lead pipe. He next saw Toribio retaliate by successively stabbing Edgardo with a knife. Tano added that the other accused were not present during the incident.10 Filomeno narrated that on the day of the incident, he left his house at 9:00 am to attend the birthday party of his nephew in Golden Gate, Moonwalk, Las Pias City; that at 6:30 pm, his wife arrived at Golden Gate, and begged him not to go home yet because Toribio had been involved in a fight with Edgardo and in turn the family of Edgardo had threatened to retaliate against Toribios relatives to

avenge Edgardos death; that he and his wife thus remained in Golden Gate from May 30, 1999 to July 28, 1999 out of fear that Edgardos relatives might retaliate against him although he had nothing to do with Edgardos death;11 that it was when he visited Toribio in detention when a police officer invited him for questioning regarding his supposed involvement in the May 30, 1999 incident; and that he (Filomeno) was then immediately detained in the police station, but was later transferred to the Las Pias City Jail without any investigation being conducted.12 Gregorio attested that on the date of the incident, he was taking care of his two-month old grandson, when his neighbor advised him to leave his house at once, because his son Toribio had been involved in a fight; that he entrusted his grandson to the care of his neighbor to go to Antipolo City, where his other son, Gregorio, Jr., was residing; that he stayed in Antipolo City for two months because of fear of Toribios enemies in Las Pias City; that when he returned to Las Pias City on July 28, 1999 to fetch his wife and daughter,13 policemen invited him for questioning; and that he was then detained for his alleged involvement in the killing of Edgardo.14 Toribio stated that he was proceeding on foot towards Edwins place at around 5:00 pm on May 30, 1999, when he saw Edgardo, Ruben and Jaime drinking together; that the three hailed him and invited him to drink with them; that although he declined the offer initially, he relented after Edgardo got mad at him; that Edgardo then invited him to join them, but he declined the invitation and told them that he was going somewhere else; that his refusal irked Edgardo, who warned him not be a toughie; that Edgardo stood up and attacked him with a lead pipe, hitting him in the left arm; that his injury left a scar of an inch on his left arm;15 that he ran towards Edwins place and stayed there for about 20 minutes; that leaving Edwins house later on, he passed by the three, who were still drinking; that Edgardo spotted him, held him by the collar, and punched him; that Ruben and Jaime also hit him with a lead pipe and a wooden club (dos por dos), injuring his left chest; that he parried their blows until they reached the street, where he fell on a small table used for selling Indian mangoes; that he was able to pick up a small knife used for peeling the mangoes, and while he was about to stand up from a prostrate position, he stabbed Edgardo on the head, neck and chest with the knife; that he did not report the incident to the police, and, instead, went home; that he did not anymore submit himself for medical attention, because his wounds were only slight; that he surrendered to the Antipolo City police authorities eight days later, upon learning that the other appellants had been implicated in Eduardos death and were being hunted down by the police.16 Ruling of the RTC In its January 30, 2006 decision,17 the RTC found the appellants guilty of murder, and sentenced each to sufferreclusion perpetua, and to pay to the heirs of the deceased P50,000.00 and to the wife of the deceasedP20,000.00 for the burial expenses. The RTC supported the verdict with the following findings: The self defense version of accused Toribio Mayingque is against the eye witness account of prosecution witnesses who told the Court that about 5:00 in the afternoon of 30th day of May, 1999 Salvacion Tusi and her husband, the victim herein, were resting in front of their house located at Pedro Sabido St. BF Resort Village, Las Pias City, together with a cousin, Ruben Bernal. Accused Toribio "Loloy" Mayingque arrived and without saying anything stabbed the victim two times. Salvacion shouted for help while her cousin Ruben Bernal was about to help her husband but Roly, Edwin Macas and Gregorio arrived and helped in the killing of the victim (TSN, p. 5, Sept. 6, 1999).

The four (4) continuously stabbed the victim with a bladed weapons (Ibid, p. 6). Three were positively identified in court as the perpetrators, to wit: accused Toribio, Gregorio and Filomeno, all surnamed Mayingque. Salvacion incurred expenses in the amount of P20,000.00 as a result of the death of the victim. The reason why they stabbed and killed the victim was because they resented the admonition by the victim to them. Toribio, Filomeno and Gregorio always had a drinking spree in the place of Edwin Macas every Sunday and were very noisy. The victim asked them not to be noisy (Ibid, p. 9). The multiple wounds suffered by the victim even belies a any pretension of self defense. The victim suffered 10 stab wounds and 2 incised wounds. In all, the victim suffered 12 wounds, to wit: No. 1 Stab Wound, parietal region, measuring 4 by 0.5 cm right of the mid-sagittal line which is on the right part of the head measuring 4 x .5 cm which is a superficial wound because there was no other organ damaged and it is not a fatal injury. This is caused by a sharp bladed weapon and that he pointed injury No. 1 in the Anatomical Sketch; No. 2 Stab Wound, parietal region, measuring 2.5 by 0.2 cm, 10 cm right of mid-sagittal line, he described that this wound is a superficial wound which is almost the same size of injury No. 1 which was likewise caused by a sharp bladed weapon; No. 3, stab wound, right orbital region, measuring 4 by 0.4 cm. 4 from the anterior midline, 6 cm deep, directed posterior wards and downwards, piercing the optic nerve and the adjacent soft tissues and muscles which means from front to back and it pierced the optic nerve which is responsible for the movement and for the eyes to see. Wound No. 3 is very damaging because it will cause blindness to the right eye and if the bleeding is profuse and if no medication is done, the patient could die. This is a fatal injury and is indicated in the Anatomical Sketch; No. 4, Incised wound, right temporal region, measuring 5 by 0.7 cm, 8 cm anterior midline. This is an incised wound also a superficial injury caused by a sharp bladed instrument; No. 5, Incised Wound, submental region, measuring 3 by 0.5 cm, 4 cm left of the anterior midline. This wound is located on the chin a superficial and non fatal injury and this injury is indicated in Exhibit "L" as injury No. 5; No. 6, Stab wound, neck, measuring 1.5 by 1.5 cm, along the anterior midline, 7 cm deep, directed posterior wards, downwards, and lateral wards, piercing the upper lobe of the left lungs. This injury is located on the left side of the neck directed posterior ward or front to back and the upper lobe of the left lung was destroyed. This wound is fatal and caused the death of the victim. This injury is indicated in the Anatomical Sketch as Wound No. 6 and the injury was caused by sharp bladed instrument; No. 7, Stab Wound, neck, measuring 3.5 by 1.5 cm, along the anterior midline, 7 cm deep, directed posterior wards, downwards and lateral wards, piercing the upper lobe of the left lung. This injury is located on the middle part of the neck and injured a major organ which is the lung and fatal, this is indicated in the Anatomical Sketch as Injury No. 7 and caused by a sharp bladed instrument; No. 8, Stab Wound, left supraclavicular region, measuring 2.5 by 1.5 cm, 12 cm from the anterior midline, 5 cm deep, directed posterior wards, downwards and medial wards, piercing the upper lobe of the left lung. This wound is located at the clavicular which is the bone of the

chest and directly behind the clavicular is the lungs and this injury is fatal and could cause the death of the victim and said injury is indicated in the Anatomical Sketch and the injury was caused by a sharp bladed instrument; No. 9, Stab wound, left clavicular region, measuring 2 by 0.5 cm. 9 cm. From the anterior midline, 6 cm deep, directed poster wards, down wards and medial wards, passing thru the 1st left intercostals space, piercing the upper lobe of the left lung. This injury is located at the clavicular region and destroys the upper lobe of the left lung and this is a fatal wound caused by a bladed weapon. This injury is indicated in the Anatomical Sketch as Wound No. 9; No. 10, Stab wound, left infraclavicular region, measuring 2 by 1 cm. 12 cm from the anterior midline, 10 cm deep, directed posterior wards, downwards and medialwards passing thru the 2nd left intercostals space, piercing the upper lobe of the left lung. This injury is located at the clavicular region directly behind is the lung and this injury is fatal caused by a bladed instrument and the same is indicated in the Anatomical Sketch as Wound No. 10. No. 11. Stab wound, sternal region, measuring 3 by 0.6 cm. Along the anterior midline, 10 cm. Deep, directed posteriorwards, downwards and lateralwards, piercing the upper lobe of the right lung. This injury is on the external region so from the center to the outside it hits the upper lobe of the right lung and this is a fatal wound and also indicated as Injury No. 11 in the anatomical sketch. No. 12, Stab wound, right mammary region, measuring 3 by 2.5, 4 cm from the anterior midline, directed posteriorwards, downwards and to the right, fracturing the 3rd right thoracic rib, piercing the pericardium and the right ventricle of the heart. This injury is located on the right chest directed posteriorwards, downwards and fractured the third right thoracic rib and hit the pericardium and the right ventricle of the heart on the middle and this wound was very fatal and caused by a sharp bladed instrument and this injury is likewise indicated in the Anatomical Sketch According to Dr. Talen, the relative position of the assailant in inflicting wounds No. 7 to 10 most probably was facing the victim and the trajectory is directed downwards and the infliction came from above. Injury Nos. 1, 2, 4 and 5 were inflicted in any position. Wound No. 3 was inflicted from up to down. Multiple stab wounds, head, neck and chest caused of death of the victim. The foregoing 12 injuries of the victim belie the self defense of accused Toribio Mayingque. The multiple injuries of the victim support the claim of conspiracy by the prosecution. Dr. Salen told the Court that the different sizes of the wounds show that indeed more than one assailant inflicted the wounds and more than one instrument used (TSN, pp. 32-33, Feb. 14, 2001). Moreover, all three have been positively identified in court as the perpetrators. Thus, the Court can not accept the denial and alibi by the other two co-accused, namely: Gregorio Mayingque and Filomeno Mayingque. It is clear from the testimonies of prosecution witnesses that the accused treacherously attacked the victim. They suddenly assaulted the victim. As held: "it is necessary to show that the aggressors cooperated in such a way as to secure advantage from their superiority in strength. (People v. Casey, see note 63, supra at 34 [1981] citing People v. Elizaga, 86 Phil. 365.) There must be proof of the relative physical strength of the aggressors and the assaulted party or proof that the accused simultaneously assaulted the deceased." (People v. Casey, see note 63, supra at 34 [1981] citing People v. Bustos, et al., 51 Phil. 385; People vs. Rubia, et al., 52 Phil. 172, 176 [1928].)" (G.R. Nos. 120394-97, January 16, 2001, People vs. Danilo Pablo, Et Al.)18 Ruling of the CA

Through its decision dated June 15, 2007,19 the CA affirmed the RTC, giving the following ratiocination: The appeal is bereft of merit. The testimonies of Salvacion, Ruben, and Jaime positively pointing to accused-appellant Loloy as the one who stabbed Tusi twice with a kitchen knife along with accused-appellants Gorio as the one who hacked Tusi on the head with a bolo and Boy Roti, as the one who held Tusi while the latter was being hacked, which are bolstered by the medico legal findings that eight (8) out of twelve (12) stabs and incise wounds sustained by Tusi are fatal wounds, belie accused-appellant Loloys assertion of self defense. Another factor which militates against accused-appellant Loloys claim of self defense are the facts that he confessed his guilt in the course of his testimony before the lower court when he stated that he surrendered to the Antipolo City Police authorities because he was conscience stricken by the fact that he allegedly violated the penal and the divine laws when he stabbed Tusi successively to get even with the latter, Ruben, and Jaime who were allegedly hitting him with a lead pipe and wooden club, which is tantamount to retaliation rather than self defense; that he did not submit the injuries on his left arm and chest to medical examination to at least clearly and convincingly substantiate the alleged unlawful aggression on his person by Tusi, and that he pleaded not guilty during the arraignment because his counsel advised him to do so, but deep inside his conscience, he felt guilty as charged. xxx when the accused invokes self-defense, it becomes incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. xxx xxx Moreover, the nature, number and location of the wounds sustained by the victim belie the assertion of self-defense since the gravity of the said wounds is indicative of a determined effort to kill and not just defend. The number of wounds was established by the physical evidence, which is a mute manifestation of truth and ranks high in the hierarchy of trustworthy evidence. xxx The distance between accused-appellant Boy Rotis alleged whereabouts on May 30, 1999 and the crime scene could be negotiated in thirty (30) minutes by a tricycle ride so much so that it was physically possible for him to be present at the scene of the incident at that precise time. Aside from his wife Lolita who started giving her direct testimony, but subsequently died, accused-appellant Boy Roti could have presented his sister, Lina Mayingque, a certain Roberto Entosa, and his sister-in-law (hipag) as witnesses to prove that he was in Golden Gate, Moonwalk, Las Pias City all the time, and to disprove the prosecutions claim of his presence in BF Resort Village where Tusi was stabbed to death on May 30, 1999. However, he did not do so. If accused-appellant Boy Rotis fear that the family of Tusi would retaliate for being a brother of accused-appellant Loloy to avenge Tusis death, even though he had nothing to do with it, is true, he should have reported the matter to the police authorities rather than hide at his sisters house in Moonwalk until his apprehension on July 28, 1999. Accused-appellant Gorios alleged act of fleeing for safety from Las Pias City to Antipolo City in order to allegedly avoid involvement in a neighborhood fight involving his son accused-appellant Loloy, entrusting his two (2)-month old grandchild to the care of a neighbor who was not that familiar to him, leaving his wife and daughter behind in Las Pias City exposed to the purported wrath of the family of Tusi, and leaving his son, accused-appellant Loloy, to fight his alleged aggressors without

doing anything to protect his son, are incredible, and contrary to human nature and experience. His conduct could no less than be construed as an implied admission of guilt. For alibi to prosper, it is not enough for accused-appellants Loloy and Gorio to prove that they were somewhere else when the crime was committed. They must likewise prove that they could not have been physically present at the scene of the crime or its immediate vicinity at the time of its commission. Positive identification where categorical and consistent and not attended by any showing of ill motive on the part of eyewitnesses on the matter prevails over alibi and denial. On the other hand, Tanos testimony was incongruent with the testimonies of the other defense witnesses as regards the actual date of the occurrence of the offense, and the identity of Tusi. Said testimony cast doubt on his credibility as an eyewitness and it fails to overcome the evidence for the prosecution clearly and convincingly. The testimony of Dr. Salen as regards the Anatomical Sketch, and Medico Legal Report, among other things, prepared by Dr. Aranas falls under the exception to the hearsay rule because the said sketch and report are entries in official records made by Dr. Aranas in the performance of his duty as a Medico Legal Officer of the WPD Crime Laboratory. Dr. Aranas had personal knowledge of the facts stated by him the said sketch and report relative to the nature and number of wounds sustained by Tusi because he was the one who performed the autopsy on the cadaver of Tusi. Dr. Salen acquired such facts from the sketch and report made by his predecessor, Dr. Aranas, who had a legal duty to turn over the same to him as his successor. Such entries were duly entered in a regular manner in the official records, hence, the entries in said sketch and report are prima facie evidence of the facts therein stated and are admissible under Section 44, Rule 130 of the Rules of Court. As an officer having legal custody of the said sketch and report, Dr. Salen attested that the copies presented in the lower court were the original ones prepared by Dr. Aranas. The findings on the wounds sustained by Tusi as found on the medico legal report was written in a technical language which is not well understood by the lower court, and said matter required the special knowledge, skill, experience or training possessed by Dr. Salen as a Medico Legal Officer of the WPD Crime Laboratory to give to the lower court the meaning of the technical language used, particularly, whether or not the wounds described therein were fatal. Hence, the lower court could receive in evidence Dr. Salens interpretation of Dr. Aranas findings. The testimony of an expert witness is not indispensable to a successful prosecution for murder. While the autopsy report of a medico legal expert in cases of murder, or homicide, is preferably accepted to show the extent of the injuries suffered by the victim, it is not the only competent evidence to prove the injuries and the fact of death. The testimonies of credible witnesses are equally admissible regarding such injuries and the surrounding circumstances thereof. On the non-offer of evidence, notwithstanding the fact that the medical legal report and the anatomical sketch were not formally offered, they are nonetheless, admissible because x x x Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case. All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court x x x. Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are record. Furthermore, appellants counsel had cross-examined the prosecution witnesses who testified on the exhibits.

In this case, the counsel of accused-appellants Loloy, Gorio, and Boy Roti had the opportunity to cross-examine Dr. Salen, but did not do so, insisting that the latter is not qualified as a medico legal expert, and that his testimony is hearsay. Records show that Edgardo Tusi was not in a position to put up any kind of defense considering the fact that he was seated and resting underneath a tree infront of his house immediately before accused-appellant Loloy suddenly appeared and stabbed him twice with a kitchen knife. There is treachery when the offender commits any of the crimes against persons, employing means and method or forms in the execution thereof which tend directly and especially to ensure its execution, without risk to the offender, arising from the defense which the offended party might make. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked. The participation of accused-appellants Gorio and Boy Roti in killing Tusi was shown when accusedappellant Gorio subsequently hacked Tusi on the head with a bolo, while accused-appellant Boy Roti assisted by holding Tusi right after the stabbing by accused-appellant Loloy to especially ensure the stabbing and hacking without risk to themselves. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. In the absence of direct proof of conspiracy, it may be deduced from the mode, method and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such point to a joint purpose and design, concerted action and community of interest. Hence, the lower court correctly held that treachery and conspiracy attended the killing of Tusi. Even if the voluntary surrender of accused-appellant Loloy to the Antipolo City Police would be appreciated, he would still be punished by reclusion perpetua, which is an indivisible penalty with a fixed duration, under Article 248 of the Revised Penal Code because the pertinent portion of Article 63 of the said Code provides that: In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. Hence, the lower court correctly sentenced accused-appellants Loloy, Gorio, and Boy Roti to suffer the penalty of reclusion perpetua.20 Hence, this appeal, in which the appellants urge that the CA committed the following errors, namely: I THE COURT A QUO GRAVELY ERRED IN NOT GIVING CREDENCE TO ACCUSED-APPELLANT TORIBIO MAYINGQUES THEORY OF SELF-DEFENSE. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE ACCUSED-APPELLANTS CONSPIRED TO COMMIT THE CRIME OF MURDER

III THE COURT A QUO GRAVELY ERRED IN GIVING CREDENCE TO HEARSAY EVIDENCE WHICH BECAME THE BASIS FOR THE CONVICTION OF THE ACCUSED-APPELLANTS. IV ON THE ASSUMPTION THAT THE ACCUSED-APPELLANTS ARE GUILTY, THE COURT A QUO, GRAVELY ERRED IN FAILING TO APPRECIATE THE CIRCUMSTANCE OF VOLUNTARY SURRENDER, INCOMPLETE SELF-DEFENSE AND IN FINDING THAT THE CRIME WAS ATTENDED BY TREACHERY. On June 25, 2008, Gregorio manifested in writing that he was withdrawing his appeal upon the advice and assistance of his counsel, because he intended to apply for executive clemency by reason of his advanced age of 78 years.21 On July 16, 2008, the Court allowed Gregorios withdrawal of appeal, and considered the judgment final and executory as to him.22 Ruling The appeal has no merit. I The appellants would have the Court review the CAs affirmance of their conviction by attacking the appellate courts supposed failure to accord credence to Toribios plea of self-defense, and by assailing the appellate courts appreciation of the evidence. The Court cannot accept the appellants urging. To begin with, it is fundamental that the determination by the trial court of the credibility of witnesses, when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if not conclusive effect.23 Such determination made by the trial court proceeds from its first-hand opportunity to observe the demeanor of the witnesses, their conduct and attitude under grilling examination,24 thereby placing the trial court in the unique position to assess the witnesses credibility and to appreciate their truthfulness, honesty and candor.25 In view of the foregoing, we sustain the CAs affirmance of the conviction. We have not been shown any fact or circumstance of weight and influence that the CA and the RTC overlooked that, if considered, should affect the outcome of the case. Secondly, the essential elements of self-defense are: (a) unlawful aggression; (b) reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending himself.26 By invoking self-defense, the accused must prove by clear and convincing evidence the elements of self-defense.27 The rule consistently adhered to in this jurisdiction is that when the accused admitted that he was the author of the death of the victim and his defense was anchored on self-defense, it becomes incumbent upon him to prove the justifying circumstance to the satisfaction of the court.28 The rationale for this requirement is that the accused, having admitted the felonious wounding or killing of his adversary, is to be held criminally

liable for the crime unless he establishes to the satisfaction of the court the fact of self-defense. Thereby, however, the burden to prove guilt beyond reasonable doubt is not lifted from the shoulders of the State, which carries it until the end of the proceedings. In other words, only the onus probandi has shifted to him, because self-defense is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof.29 He must now discharge the burden by relying on the strength of his own evidence, not on the weakness of that of the Prosecution, for, even if the Prosecutions evidence is weak, it cannot be disbelieved in view of the accuseds admission of the killing.30 Both the trial court and the CA rejected Teofilos plea of self-defense. We hold that they did so correctly. Teofiloss evidence on self-defense was not persuasive enough, and lacked credibility. Simply stated, such evidence did not prevail over the clear showing by Salvacion and the Bernals that Teofilo and his co-conspirators had ganged up on Edgardo with a knife (Teofilo) and bolo (Gregorio) while the other two had held Edgardo to render him defenseless. Indeed, we agree with the conclusion of both lower courts that the plea of self-defense was belied by the number (12) and the different sizes of the wounds inflicted on Edgardo. The presence of a large number of wounds on the victims body negated self-defense, and indicated, instead, a determined effort to kill the victim.31 Toribio did not convincingly establish, first of all, that there was unlawful aggression against him. His claim that Edgardo and the Bernals had attacked him with a lead pipe and wooden club, which impelled him to stab Edgardo, became implausible to the lower courts, and to us, too, because Toribio did not even submit himself to any medical attention. He should have done so, if, truly, he had sustained injuries at the hands of the victim and his group. At any rate, the question as to who between the accused and the victim was the unlawful aggressor was a question of fact best addressed to and left with the trial court for determination based on the evidence on record.32 Thirdly, the CA did not err in affirming the conviction of Filomeno, whose main plea consisted of alibi. Filomenos alibi would place him in Golden Gate, Moonwalk, Las Pias City, at the time of the commission of the crime. The CA rejected such alibi by indicating that the distance between Golden Gate, Moonwalk, Las Pias City and Pedro Sabido Street, BF Resort Village, Las Pias City where the crime was committed could be negotiated through a 30-minute tricycle ride, which did not render impossible for Filomeno to be in the place of the crime when it was committed. The CA also cited the abject failure of Filomeno, or other witnesses to credibly establish his being in Golden Gate, Moonwalk, Las Pias City in the entire time from the morning of May 30, 1999 till after the commission of the crime, as well as to disprove the States positive showing that he was present in the place of the crime when it was committed. Alibi is an inherently weak and unreliable defense, because it is easy to fabricate and difficult to disprove.33 To establish alibi, the accused must prove: (a) that he was actually in another place at the time of the perpetration of the crime; and (b) that it was physically impossible for him to be at the scene of the crime when the crime was perpetrated.34 Physical impossibility refers to the distance between the place where the accused was when the crime transpired and the place where the crime was committed, as well as to the facility of access between the two places.35 II Penalties and Damages As the consequence of the foregoing conclusion, the appellants are found guilty of murder, and accordingly punished with reclusion perpetua pursuant to Article 248 of the Revised Penal Code.36 There is a need to correct the award of damages.

The CA did not state whether the amount of P50,000.00 was for death indemnity or moral damages. Nonetheless, the CA should have awarded both damages, considering that they were of different kinds.37 For death indemnity, the amount of P50,000.00 is fixed pursuant to the current judicial policy on the matter,38 without the need of any evidence or proof of damages.39 Likewise, the mental anguish of the surviving family should be assuaged by the award of appropriate and reasonable moral damages.40 Although the surviving familys mental anguish is not ever quantifiable with mathematical precision, the Court must nonetheless determine the amount to which the heirs of the deceased are entitled. In this case, the Court holds that the amount of P50,000.00 is reasonable, which, pursuant to prevailing jurisprudence,41 is awarded even in the absence of any allegation and proof of the heirs emotional suffering, simply because human nature and experience have shown that: xxx a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family. It is inherently human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of a violent or brutal killing. Such violent death or brutal killing not only steals from the family of the deceased his precious life, deprives them forever of his love, affection and support, but often leaves them with the gnawing feeling that an injustice has been done to them.42
1awph!1

The Civil Code provides that exemplary damages may be imposed in criminal cases as part of the civil liability "when the crime was committed with one or more aggravating circumstances."43 The Civil Code allows such damages to be awarded "by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages."44 In this regard, the CA and the RTC committed the plain error of failing to recognize the right of the heirs of the victim to exemplary damages by virtue of the attendance of treachery. The plain error, even if not assigned in this appeal, demands immediate rectification as a matter of law due to the killing being attended by treachery. That treachery, being an attendant circumstance, was inseparable from murder did not matter. As well explained in People v. Catubig:45 The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. Accordingly, P30,000.00 is awarded as exemplary damages. We hold that true exemplarity will not be served by a lesser amount.

Lastly, the Court retains the award of P20,000.00 for burial expenses, as the CA and RTC fixed, considering that the appellants have not assailed such amount. There can be no question that burial expenses were the reasonable consequence of the criminal act of the accused. WHEREFORE, appellants TORIBIO MAYINGQUE and FILOMENO MAYINGQUE are found GUILTY beyond reasonable doubt of the crime of MURDER, and each is sentenced to suffer reclusion perpetua. The appellants are ordered to pay to the heirs of Edgardo Tusi P50,000.00 as civil indemnity, P50,000.00 as moral damages, P30,000.00 as actual damages, and P20,000.00 as burial expenses. Costs of suit to be paid by the appellants. Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 152364 April 15, 2010

ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO; LEONCIO D. SANTOS; ADOLFO SANTOS; NENITA S. LACAR; ANGELINA S. SAGLES, assisted by her husband, ALBERTO SANTOS, JR.; REGINA SANTOS and FABIAN SANTOS, Petitioners, vs. MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN, MARCELINA AGUSTIN, PAUL A. DALALO, NOEL A. DALALO, GREGORIO AGUSTIN and BIENVENIDO AGUSTIN, Respondents. DECISION PERALTA, J.: Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision2 dated February 6, 2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also affirmed, with modification, the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 1, in Civil Case No. 2834. The factual and procedural antecedents of the case are as follows: On November 4, 1998, herein petitioners filed against herein respondents a Complaint4 for partition with the MTCC of Laoag City, alleging as follows: xxxx II That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to Trinidad Duldulao, who died intestate leaving a parcel of land situated in the

Barrio of Natividad Nstra. Sra., Municipality of Laoag, designated as Lot No. 10675 of the Cadastral Survey of Laoag; III That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate children, namely: Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos, [who] was married to Petronilo Agustin, is now deceased; Alberto Santos, married to Rizalina Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia Tabeta, and Alejandra D. Santos married to Isauro M. Lazaro, are still living; IV That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner, his children, namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of land mentioned in paragraph II of this complaint be titled in the name of Basilisa, the latter being the eldest and so Original Certificate of Title No. 20742 in the name of Basilisa Santos was obtained although it was agreed among them that it did not and does not necessarily mean that Basilisa Santos is the sole and exclusive owner of this parcel of land, and as embodied in the Title obtained in the name of Basilisa Santos, the parcel of land is particularly described as follows: A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon, situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the SE. by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot No. 1065, containing an area of three hundred and one (301) square meters, more or less, covered by Tax Declaration No. 010-00224 for the year 1994 in the names of Modesta Agustin, et al. with a market value of P96,320.00 and an assessed value of P14,450.00. V That there is a residential house constructed on the lot described in paragraph IV of this complaint and in the construction of which plaintiff Alejandra Santos, then still single, spent the amount of P68,308.60, while Basilisa Santos and her children spent the amount of P3,495.00. Afterwards, Alejandra Santos got married to Isauro M. Lazaro who was employed in a private company and when he retired from the service, some additional constructions were made on the residential house and lot such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car garage, the money spent for these additional constructions came from the earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said residential house is now covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin (should be Basilisa Agustin) and Alejandra Santos for the year 1994 with a market value of P93,920.00 and an assessed value of zero; VI That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV of the complaint was transferred into another title which is now Transfer Certificate of Title No. T-20695 in the names of Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin, Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa Santos-Agustin who are herein named as defendants

with Monica Agustin now deceased represented by her children Paul A. Dalalo and Noel A. Dalalo as defendants; VII That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the former, who are sisters, that the transfer of the title covering the lot described in paragraph IV of this complaint in the name of Basilisa Santos into the names of her children would erroneously imply that the lot is solely and exclusively owned by Basilisa SantosAgustin's children, but Basilisa Santos-Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because an affidavit was already executed by her recognizing and specifying that her brothers Alberto Santos and Leoncio Santos, and her sister Alejandra SantosLazaro would each get one fourth () share of the lot; VIII That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the successors of their mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would follow the line of thinking of their mother and grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of the lot and residential house erected on it, the plaintiffs initiated a partition in the barangay court where the lot is situated described in paragraph IV of this complaint, but that the children of Basilisa SantosAgustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed the partition claiming that they are the sole and exclusive owners of the lot being that the lot is now titled in their names, and hence there was no settlement as shown by the certification of the barangay court hereto attached as annex "A"; IX That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on intestate succession and to partition the residential house as specified below. x x x x x x x5 Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit. Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative Defenses: 1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos, wife of Petronilo Agustin, who was the original registered owner of the property evidenced by OCT No. 20742; the plaintiffs never became owners of said land. There was never any agreement between the ascendants of the plaintiffs and defendants, neither is there any agreement between the plaintiffs and defendants themselves that in the ownership, the plaintiffs have a share over the lot; 2. The defendants are the ones paying for the real estate taxes of said land;

3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa Santos was the eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when these siblings were not yet employed and Basilisa allowed them to reside in the house constructed within the lot; Alejandra Santos stayed in the house up to the present with the agreement that she will spend for the renovation of the house in lieu of monthly rentals that she has to pay when she already became financially able; 4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National Bank and the property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under the name of the Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa Santos-Agustin, purchased it from the PNB and TCT No. T-5662 was issued under her name (Annex "B"); the property was later on transferred to her direct descendants, the defendants herein as evidenced by TCT No. T-20695 (Annex "C"); x x x x7 Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the court to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary and moral damages, attorney's fees, and costs of suit. After the issues were joined and the pre-trial was terminated, trial on the merits ensued. On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer for partition. The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by Basilisa, wherein she purportedly acknowledged her co-ownership of the subject property with her siblings Alberto, Leoncio and Alejandra, because the affiant was not presented on the witness stand, such that all the statements made in her affidavit were hearsay. Moreover, the MTCC held that two credible witnesses testified in plain, simple and straightforward manner that at the time the affidavit was supposed to have been signed and sworn to before the notary public, Basilisa was already bedridden and an invalid who could not even raise her hand to feed herself. In addition, the MTCC also gave credence to the testimony of the notary public, before whom the document was supposedly signed and sworn to, that the said affidavit was already complete and thumbmarked when the same was presented to him by a person who claimed to be Basilisa. Petitioners filed an appeal with the RTC of Laoag City. On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The RTC found that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a consequence, the RTC held that petitioners were entitled to indemnity representing the costs of the construction and renovation of the said house. The dispositive portion of the RTC Decision, thus, reads: WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees [herein respondents] to indemnify the appellants [herein petitioners] in the amount of P68,308.60 as proved by them. Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is hereby corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented.

SO ORDERED.10 Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA. On February 21, 2002, the CA issued its presently assailed Decision disposing as follows: WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED subject to the MODIFICATION that appellees [herein respondents] pay the amount of P68,308.60 in indemnity solely to appellant Alejandra Santos-Lazaro. SO ORDERED.11 Hence, the instant petition based on the following grounds: I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS. 12 II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S. LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH RESPECT TO THE SUBJECT PROPERTY.13 III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A PARTITION OF THE SUBJECT HOUSE.14 In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings' share in the disputed property is a declaration against interest which is one of the recognized exceptions to the hearsay rule. Petitioners argue that since the sworn statement was duly notarized, it should be admitted in court without further proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and physician cannot qualify as clear and convincing evidence which could overthrow such notarized document; that the notary public cannot impugn the same document which he notarized for to do so would render notarized documents worthless and unreliable resulting in prejudice to the public. As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa did not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel of land. Petitioners assert that they did not lose their share in the property co-owned when their share was mortgaged by Basilisa without their knowledge and consent; that the mortgage was limited only to the portion that may be allotted to Basilisa upon termination of their co-ownership; that PNB acquired ownership only of the share pertaining to Basilisa; that when Basilisa bought back the property from PNB, she simply re-acquired the portion pertaining to her and simply resumed co-ownership of the property with her siblings. Petitioners also contend that Basilisa's children did not acquire ownership of the subject lot by prescription, and that neither Basilisa nor respondents repudiated their co-ownership. Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed parcel of land and not simply a builder in good faith, is entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn statement is a declaration against interest. It is not a declaration against interest. Instead, it is an admission against interest.
1avv phi 1

Indeed, there is a vital distinction between admissions against interest and declarations against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness.15 Declarations against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence, and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness.16 In the present case, since Basilisa is respondents' predecessor-in-interest and is, thus, in privity with the latter's legal interest, the former's sworn statement, if proven genuine and duly executed, should be considered as an admission against interest. A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as Lot No. 10678 while the property being disputed is Lot No. 10676.17 On this basis, it cannot be concluded with certainty that the property being referred to in the sworn statement is the same property claimed by petitioners. Having made the foregoing observations and discussions, the question that arises is whether the subject sworn statement, granting that it refers to the property being disputed in the present case, can be given full faith and credence in view of the issues raised regarding its genuineness and due execution. The Court rules in the negative. Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity.18 However, this presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.19 Moreover, not all notarized documents are exempted from the rule on authentication.20 Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat.21 The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular.22 However, a question involving the regularity of notarization as well as the due execution of the subject sworn statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the function of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.23 The rationale behind this doctrine is that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this Court normally undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that the findings of the lower courts are totally devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.25 Although there are recognized exceptions26 to this rule, none exists in the present case to justify a departure therefrom. Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.28 The presumption cannot be

made to apply to the present case because the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the signatory, at the time the questioned document was supposedly executed. The trial and appellate courts were unanimous in giving credence to the testimonies of these witnesses. The Court has repeatedly held that it will not interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.29 The reason for this is that the trial court was in a better position to do so, because it heard the witnesses testify before it and had every opportunity to observe their demeanor and deportment on the witness stand.30 Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA. Although the questioned sworn statement is a public document having in its favor the presumption of regularity, such presumption was adequately refuted by competent witnesses. The Court further agrees with the ruling of the RTC that: The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees considering his admission that the affidavit was already thumbmarked when presented to him by one who claimed to be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the documents suspect is the fact that it was subscribed on the same date as the financial statement of Alejandra Santos. It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate documents.31 When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence.32 Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery.33 A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private instrument.34 Hence, a notary public must discharge his powers and duties, which are impressed with public interest, with accuracy and fidelity.35 A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein.36 In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of the person executing the said sworn statement. However, the notary public did not comply with this requirement. He simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa Santos; that the contents of the sworn statement are true; and that the thumbmark appearing on the said document was hers. However, this would not suffice. He could have further asked the person who appeared before him to produce any identification to prove that she was indeed Basilisa Santos, considering that the said person was not personally known to him, and that the thumbmark appearing on the document sought to be notarized was not affixed in his presence. But he did not. Thus, the lower courts did not commit any error in not giving evidentiary weight to the subject sworn statement. The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed property. Since the Court has already ruled that the lower courts did not err in finding

that petitioners failed to prove their claim that they were co-owners of the said property, there is no longer any need to discuss the other assigned errors. WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 63321 is AFFIRMED. SO ORDERED. DIOSDADO M. PERALTA Associate Justice WE CONCUR: Republic of the Philippines SUPREME COURT Manila FIRST DIVISION A.C. No. 7860 January 15, 2009

AVELINO O. ANGELES, LAURO O. ANGELES, MARIA O. ANGELES, ROSALINA O. ANGELES, CONNIE M. ANGELES, Complainants, vs. ATTY. AMADO O. IBAEZ, Respondent. DECISION CARPIO, J.: The Case This is a complaint filed by Avelino O. Angeles, Maria O. Angeles, Lauro O. Angeles, Rosalina O. Angeles, and Connie M. Angeles in representation of the deceased Loreto Angeles (collectively, complainants) against Atty. Amado O. Ibaez (respondent) for disbarment for notarizing the "Extrajudicial Partition with Absolute Sale" without a notarial commission and in the absence of the affiants. The Facts The facts of CBD Case No. 06-1830, as stated in the Report and Recommendation of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), read as follows: II. Statement of the Complaint Complainants ... are residents of Highway, Sapang I, Ternate, Cavite. Respondent Atty. Amado Ibaez is a practicing lawyer who holds office at 2101 Carolina (now Madre Ignacia) St., Malate, Manila.

The lengthy and confusing narrative of what appears to be a bitter land dispute notwithstanding, it can be gleaned from the Complaint and Position Paper, and the personal clarification by the complainants themselves after questioning by the undersigned during the Mandatory Conference, that the present administrative case is limited to an "Extrajudicial Partition with Absolute Sale" which respondent Atty. Amado Ibaez allegedly notarized in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 157 and Book No. II, Series of 1979. The complainants denied that they executed the said document or that they ever appeared before respondent Atty. Ibaez for this purpose. They alleged that respondent Atty. Ibaez did not even have the authority to notarize the "Extrajudicial Partition with Absolute Sale" as he did not have a commission as a notary public at that time. The complainants alleged that the respondent and his relatives are presently using the said document in judicial proceedings pending before the Regional Trial Court of Naic, Cavite to their damage and prejudice. The complainants contend that respondent Atty. Ibaezs act of notarizing the "Extrajudicial Partition with Absolute Sale" without requiring the presence of the parties thereto, and despite his alleged lack of a notarial commission, constitutes professional misconduct for which reason he should be disbarred. In support of their allegations, the complainants attached to their Complaint and Position Paper the following documents: 1. Tax Declaration Nos. 20-004-00052, 1356, 1809 in the name of Barselisa Angeles, and Tax Declarations 198, 283, 403 and 1544, in the name of Juan Angeles. 2. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty. Amado O. Ibaez was not appointed as such for and in the City of Manila for the year 19761977. 3. Certification dated 28 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of Amado Ibaez, a notary public for and within the City of Manila, and it has no copy on file of an affidavit allegedly executed by Gabriel, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte, and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 202, Page No. 42, Book No. 1, Series of 1977. 4. Certification dated 11 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of Amado Ibaez, a notary public for and within the City of Manila, and it has no copy on file of a partition w/renunciation [sic] and affidavit allegedly executed by and among Gabriela, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 201, Page No. 41, Series of 1977. 5. Two (2) versions of a "Partihang Labas sa Hukuman at Ganap na Bilihan" dated 28 March 1978, executed by and between Gloria Angeles, Leocadio Angeles and Gabriela, Estebana, Eutiquio, Jovita, Samonte and Renato, all surnamed Torres. 6. Flow chart showing the history of Tax Declaration No. 403, from 1948 to 1974.

7. Application for Free Patent over Cadastral Lot No. 460-C of the Ternate Cadastral Sketching (CADS-617-D), SWO-04-000598 and Cadastral Lot No. 460-B, executed by Atty. Amado O. Ibaez. 8. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty. Amado O. Ibaez was not appointed as such for and in the year 1978-1979. 9. "Extrajudicial Partition with Absolute Sale" (with various marginal notes made by the complainants) notarized by Atty. Amado Ibaez in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979. 10. Real Estate Mortgage executed by Flora Olano in favor of the Rural Bank of Naic, Inc., in the amount of Php350.00, covering property located in Zapang, Ternate, Cavite and described in Tax Declaration No. 1657-1658. 11. Certification dated 12 January 2007 issued by the Office of the Clerk of Court of the Regional Trial Court of Trece Martires City stating that Atty. Amado O. Ibaez was not duly commissioned as a notaryt [sic] public for and within the Province of Cavite in the year 1979, and that it has no copy in its records of an "Extrajudicial Partition with Absolute Sale" allegedly notarized by Atty. Amado Ibaez on 18 February 1979 and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II. Series of 1979. III. Respondents Position/Defense In his Motion to Dismiss and Position Paper, respondent Atty. Ibaez contended that the complainants are guilty of forum-shopping inasmuch as they had previously filed the same complaint, docketed as Administrative Case No. 3581, which was eventually dismissed by then IBP CBD Comm. Victor Fernandez. The respondent admitted that he notarized the "Extrajudicial Partition with Absolute Sale" but clarified that he did so as Notary Public of the Province of Cavite, with a notarial commission issued by the Regional Trial Court of Cavite, Branch 1, Trece Martires City. He explained that the designation of "Manila" as the place of execution of the said document was a mistake of his former legal secretary, who failed to correct the same through oversight. Respondent Atty. Ibaez alleged that he notarized the "Extrajudicial Partition with Absolute Sale" in his capacity as the official Notary Public of Puerto Azul, and the same was actually prepared and typewritten by complainant Rosalina Angeles for a consideration of Php20,000.00 as evidenced by a photocopy of Commercial Bank & Trust Co. Cashiers Check dated 31 January 1979 on file with the Puerto Azul office, as well as an "Exclusive Authority" attached to the said document. The respondent also alleged that complainant Rosalina Angeles was at that time employed as a typist at Puerto Azul and that she enjoyed the trust and confidence of the Puerto Azul management. The respondent stated that the land subject of the sale was surveyed for Mrs. Trinidad DiazEnriquez by the late Angel Salvacion, the official surveyor of Puerto Azul, and was submitted to the Bureau of Lands for verification and approval and was approved on 14 February 1985 as CCN No. 04-000038-D. Respondent Atty. Ibaez alleged that the property is presently in the actual possession of Puerto Azul, with former Sapang I Bgy. Captain Johnny Andra as tenant.

The respondent alleged that Puerto Azuls ownership of the property is anchored on the "Extrajudicial Partition with Absolute Sale," which is in turn the subject of a case, CA GR SP No. 2006-1668, which is presently pending in the Court of Appeals. Respondent Atty. Ibaez alleged that a defect in the notarization of a document of sale does not invalidate the transaction, and he stated that his failure to require the presence of the parties to the "Extrajudicial Partition with Absolute Sale" is wholly justified because of the assurance of complainant Rosalina Angeles that the signatures appearing in the said document were indeed those of her co-heirs. The respondent also alleged that almost all the complainants submitted their residence certificates, the numbers of which were recorded in the acknowledgement portion of the document. The respondent denied that he had committed any crime when he notarized the "Extrajudicial Partition with Absolute Sale" because the offenses in the Revised Penal Code are "mala in se" where the intention to commit the crime is required, which is lacking in his case. The respondent added that there is regularity in the performance of his duty as the official notary public of Puerto Azul. The respondent pointed out that nearly twenty eight (28) years have lapsed without anyone questioning not only the sale of the said property, but Puerto Azuls long possession of the same as well. He alleged that the complainants are now denying the sale because they want to make it appear that they have land within or adjoining a quarry site which they have invaded and taken over. He reiterated that the defect in his notarization of the sale document notwithstanding, the sale remains valid. By way of his defense, respondent Atty. Ibaez submitted the following documents: 1. Photocopy of a Supreme Court Resolution dated 31 July 2000 denying the complainants motion for reconsideration in Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibaez" 2. Photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibaez" 3. Photocopy of a Counter-Affidavit filed by Atty. Amado Ibaez in OMB-1-C 06-0368C/OMB-L C 06-0272-C, entitled "Mario O. Angeles vs. Sony Peji, et al.," 4. "Extrajudicial Partition with Absolute Sale" notarized by Atty. Amado Ibaez in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979, with attached "Exclusive Authority" executed by Maria Angeles, Flora Angeles, Lauro Angeles and Avelino Angeles in favor of Rosalina Angeles.1 The IBPs Report and Recommendation In a Report2 dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the "Extrajudicial Partition with Absolute Sale" in the absence of affiants and without a notarial commission. Thus: As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants allegations coupled with their own

verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibaez of notarizing an "Extrajudicial Partition with Absolute Sale" in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time. The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping. It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibaez" (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondents alleged "land-grabbing" of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibaez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forumshopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case. The present administrative complaint may be in one way or another related to the alleged landgrabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibaez is not being accused of landgrabbing or falsification, but rather, for misconduct in notarizing a document. We would point out that respondent Atty. Amado Ibaez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the "Extrajudicial Partition with Absolute Sale," but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization. That is not the point, however. The validity of the transaction covered by the "Extrajudicial Partition with Absolute Sale" is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so. As it is, no less than the respondent himself categorically admitted that he notarized the "Extrajudicial Partition with Absolute Sale" in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibaez didnot have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a

commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarial register during the said period. xxx While the case of respondent Atty. Amado Ibaez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibaez: 1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and 2. Be suspended from the practice of law for a period of one (1) year. Respectfully submitted.3 (Emphasis added) In a Resolution4 dated 6 February 2008, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner Limpingco. The Office of the Bar Confidant received the notice of the Resolution and the records of the case on 10 April 2008. Respondent filed a supplemental position paper on 28 May 2008 before the IBP Board of Governors. In a Resolution dated 29 May 2008, the IBP Board of Governors referred respondents submission to the Office of the Bar Confidant. Respondent attached photocopies of the following: respondents Petition for Commission as Notary Public for and within the Province of Cavite filed before the said Court on 16 February 1978; respondents commission as Notary Public for the province of Cavite for the term 1978 until 1979 issued by Executive Judge Pablo D. Suarez on 21 February 1978; and respondents oath of office as notary public dated 21 February 1978. The Ruling of the Court We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the "Extrajudicial Partition with Absolute Sale" in the absence of the affiants. Respondent Notarized the "Extrajudicial Partition with Absolute Sale" in the Absence of the Affiants Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the "Extrajudicial Partition with Absolute Sale" subject of the present complaint are those of her co-heirs.5 Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary. Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides: Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is

done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state. Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads: A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notarys presence personally at the time of the notarization; and (2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties free act and deed.6 Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.7 Under the facts and circumstances of the case, respondents notarial commission should not only be suspended but respondent must also be suspended from the practice of law. WHEREFORE, the Court finds respondent Atty. Amado O. Ibaez GUILTY of notarizing the "Extrajudicial Partition with Absolute Sale" in the absence of the affiants. Accordingly, the Court SUSPENDS him from the practice of law for one year, REVOKES his incumbent notarial commission, if any, and PROHIBITS him from being commissioned as a notary public for one year, effective immediately, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely. Let copies of this Decision be furnished to the Office of the Bar Confidant, to be appended to respondents personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: REYNATO S. PUNO

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 137944 April 6, 2000

FERNANDA MENDOZA CEQUEA and RUPERTA MENDOZA LIRIO, petitioners, vs. HONORATA MENDOZA BOLANTE, respondent.

PANGANIBAN, J.: Tax receipts and declarations are prima facie proofs of ownership or possession of the property for which such taxes have been paid. Coupled with proof of actual possession of the property, they may become the basis of a claim for ownership. By acquisitive prescription, possession in the concept of owner public, adverse, peaceful and uninterrupted may be converted to ownership. On the other hand, mere possession and occupation of land cannot ripen into ownership. The Case Before us is a Petition for Review on Certiorari of the March 19, 1999 Decision 1 of the Court of Appeals 2 (CA) in CA-GR CV No. 43423. The assailed Decision disposed as follows: 3 WHEREFORE, for all the foregoing, the decision of the trial court appealed from is REVERSED and SET ASIDE. In lieu thereof, judgment is hereby rendered declaring . . . Honorata Mendoza Bolante the rightful owner and possessor of the parcel of land which is the subject of this appeal. The Facts The Petition herein refers to a parcel of land situated in Barangay Bangad, Binangonan, Province of Rizal, having an area of 1,728 square meters and covered by Tax Declaration No. 26-0027. The undisputed antecedents of this case are narrated by the Court of Appeals as follows: 4 The facts not disputed revealed that prior to 1954, the land was originally declared for taxation purposes in the name of Sinforoso Mendoza, father of [respondent] and married to Eduarda Apiado. Sinforoso died in 1930. [Petitioners] were the daughters of Margarito Mendoza. On the basis of an affidavit, the tax declaration in the name of Sinforoso Mendoza of the contested lot was cancelled and subsequently declared in the name of Margarito Mendoza. Margarito and Sinforoso are brothers. [Respondent] is the present occupant of the land. Earlier, on October 15, 1975, [respondent] and Miguel Mendoza, another brother of [petitioners], during the cadastral survey had a dispute on [the] ownership of the land.
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During the pre-trial conference, parties stipulated the following facts: 1) The land subject of the case was formerly declared for taxation purposes in the name of Sinforoso Mendoza prior to 1954 but is now declared in the name of Margarito Mendoza.

2) The parties agree[d] as to the identity of the land subject of instant case. 3) [Petitioners] are the daughters of Margarito Mendoza while the [respondent] is the only daughter of Sinforoso Mendoza. 4) Margarito Mendoza and Sinforoso Mendoza [were] brothers, now deceased. 5) During the cadastral survey of the property on October 15, 1979 there was already a dispute between Honorata M. Bolante and Miguel Mendoza, brother of [petitioners]. 6) [Respondent was] occupying the property in question. The only issue involved [was] who [was] the lawful owner and possessor of the land subject of the case. After trial, the court a quo rendered its judgment in favor of [petitioners], the dispositive portion of which reads as follows: Wherefore, in view of the foregoing considerations, judgment is hereby rendered for the [petitioners] and against the [respondent]: 1. Declaring that the parcel of land situated in Bangad, Binangonan, Rizal covered by tax declaration no. 26-0027 in the name of Margarito Mendoza belong to his heirs, the [petitioners] herein; 2. Ordering [respondent] to vacate the property subject of the case and deliver possession thereof to the heirs of Margarito Mendoza. 3. Ordering the [respondent] to indemnify the [petitioners] in the sum of P10,000.00, as actual damages. 4. Ordering the [respondent] to pay the costs. Ruling of the Court of Appeals The Court of Appeals reversed the trial court because the genuineness and the due execution of the affidavit allegedly signed by the respondent and her mother had not been sufficiently established. The notary public or anyone else who had witnessed the execution of the affidavit was not presented. No expert testimony or competent witness ever attested to the genuineness of the questioned signatures. The CA further ruled that the affidavit was insufficient to overcome the denial of respondent and her mother. The former testified that the latter, never having attended school, could neither read nor write. Respondent also said that she had never been called "Leonor," which was how she was referred to in the affidavit. Moreover, the appellate court held that the probative value of petitioners' tax receipts and declarations paled in comparison with respondent's proof of ownership of the disputed parcel. Actual, physical, exclusive and continuous possession by respondent since 1985 indeed gave her a better title under Article 538 of the Civil Code.

Hence, this Petition. 5 Issues Insisting that they are the rightful owners of the disputed land, the petitioners allege that the CA committed these reversible errors: 6 1. . . . [I]n not considering the affidavit as an exception to the general rule that an affidavit is classified as hearsay evidence, unless the affiant is placed on the witness stand; 2. . . . [I]n holding that respondent has been in actual and physical possession, coupled with . . . exclusive and continuous possession of the land since 1985, which are evidence of the best kind of circumstance proving the claim of the title of ownership and enjoys the presumption of preferred possessor. The Court's Ruling The Petition has no merit. First Issue: Admissibility of the Affidavit Petitioners dispute the CA's ruling that the affidavit was not the best evidence of their father's ownership of the disputed land, because the "affiant was not placed on the witness stand." They contend that it was unnecessary to present a witness to establish the authenticity of the affidavit because it was a declaration against respondent's interest and was an ancient document. As a declaration against interest, it was an exception to the hearsay rule. As a necessary and trustworthy document, it was admissible in evidence. And because it was executed on March 24, 1953, it was a self-authenticating ancient document. We quote below the pertinent portion of the appellate court's ruling: 7 While it is true that the affidavit was signed and subscribed before a notary public, the general rule is that affidavits are classified as hearsay evidence, unless affiants are placed on the witness stand (People's Bank and Trust Company vs. Leonidas, 207 SCRA 164). Affidavits are not considered the best evidence, if affiants are available as witnesses (Vallarta vs. Court of Appeals, 163 SCRA 587). The due execution of the affidavit was not sufficiently established. The notary public or others who saw that the document was signed or at least [could] confirm its recitals [were] not presented. There was no expert testimony or competent witness who attested to the genuineness of the questioned signatures. Worse, [respondent] denied the genuineness of her signature and that of her mother . . . [Respondent] testified that her mother was an illiterate and as far as she knew her mother could not write because she had not attended school (p. 7,ibid). Her testimony was corroborated by Ma. Sales Bolante Basa, who said the [respondent's] mother was illiterate. The petitioners allegations are untenable. Before a private document offered as authentic can be received in evidence, its due execution and authenticity must be proved first. 8 And before a document is admitted as an exception to the hearsay rule under the Dead Man's Statute, the offeror must show (a) that the declarant is dead, insane or unable to testify; (b) that the declaration concerns a fact cognizable by the declarant; (c) that at the time the declaration was made, he was

aware that the same was contrary to his interest; and (d) that circumstances render improbable the existence of any motive to falsify. 9 In this case, one of the affiants happens to be the respondent, who is still alive and who testified that the signature in the affidavit was not hers. A declaration against interest is not admissible if the declarant is available to testify as a witness. 10 Such declarant should be confronted with the statement against interest as a prior inconsistent statement. The affidavit cannot be considered an ancient document either. An ancient document is one that is (1) more than 30 years old, (2) found in the proper custody, and (3) unblemished by any alteration or by any circumstance of suspicion. 11 It must on its face appear to be genuine. The petitioners herein failed, however, to explain how the purported signature of Eduarda Apiado could have been affixed to the subject affidavit if, according to the witness, she was an illiterate woman who never had any formal schooling. This circumstance casts suspicion on its authenticity. Not all notarized documents are exempted from the rule on authentication. Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat. Furthermore, the affidavit in question does not state how the ownership of the subject land was transferred from Sinforoso Mendoza to Margarito Mendoza. By itself, an affidavit is not a mode of acquiring ownership. Second Issue: Preference of Possession The CA ruled that the respondent was the preferred possessor under Article 538 of the Civil Code because she was in notorious, actual, exclusive and continuous possession of the land since 1985. Petitioners dispute this ruling. They contend that she came into possession through force and violence, contrary to Article 536 of the Civil Code. We concede that despite their dispossession in 1985, the petitioners did not lose legal possession because possession cannot be acquired through force or violence. 12 To all intents and purposes, a possessor, even if physically ousted, is still deemed the legal possessor.13 Indeed, anyone who can prove prior possession, regardless of its character, may recover such possession. 14 However, possession by the petitioners does not prevail over that of the respondent. Possession by the former before 1985 was not exclusive, as the latter also acquired it before 1985. The records show that the petitioners' father and brother, as well as the respondent and her mother were simultaneously in adverse possession of the land.
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Before 1985, the subject land was occupied and cultivated by the respondent's father (Sinforoso), who was the brother of petitioners' father (Margarito), as evidenced by Tax Declaration No. 26425. 15 When Sinforoso died in 1930, Margarito took possession of the land and cultivated it with his son Miguel. At the same time, respondent and her mother continued residing on the lot. When respondent came of age in 1948, she paid realty taxes for the years 1932-1948. 16 Margarito declared the lot for taxation in his name in 1953 17 and paid its realty taxes beginning 1952. 18 When he died, Miguel continued cultivating the land. As found by the CA, the respondent and her mother were living on the land, which was being tilled by Miguel until 1985 when he was physically ousted by the respondent. 19

Based on Article 538 of the Civil Code, the respondent is the preferred possessor because, benefiting from her father's tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On the other hand, petitioners' father acquired joint possession only in 1952. Third Issue: Possession of Better Right Finally, the petitioners challenge the CA ruling that "actual and physical coupled with the exclusive and continuous possession [by respondent] of the land since 1985" proved her ownership of the disputed land. The respondent argues that she was legally presumed to possess the subject land with a just title since she possessed it in the concept of owner. Under Article 541 of the Code, she could not be obliged to show or prove such title. The respondent's contention is untenable. The presumption in Article 541 of the Civil Code is merely disputable; it prevails until the contrary is proven. 20 That is, one who is disturbed in one's possession shall, under this provision, be restored thereto by the means established by law. 21 Article 538 settles only the question of possession, and possession is different from ownership. Ownership in this case should be established in one of the ways provided by law. To settle the issue of ownership, we need to determine who between the claimants has proven acquisitive prescription. 22 Ownership of immovable property is acquired by ordinary prescription through possession for ten years.23 Being the sole heir of her father, respondent showed through his tax receipt that she had been in possession of the land for more than ten years since 1932. When her father died in 1930, she continued to reside there with her mother. When she got married, she and her husband engaged in kaingin inside the disputed lot for their livelihood. 24 Respondent's possession was not disturbed until 1953 when the petitioners' father claimed the land. But by then, her possession, which was in the concept of owner public, peaceful, and uninterrupted 25 had already ripened into ownership. Furthermore she herself, after her father's demise, declared and paid realty taxes for the disputed land. Tax receipts and declarations of ownership for taxation, when coupled with proof of actual possession of the property, can be the basis of a claim for ownership through prescription. 26 In contrast, the petitioners, despite thirty-two years of farming the subject land, did not acquire ownership. It is settled that ownership cannot be acquired by mere occupation. 27 Unless coupled with the element of hostility toward the true owner, 28 occupation and use, however long, will not confer title by prescription or adverse possession. Moreover, the petitioners cannot claim that their possession was public, peaceful and uninterrupted. Although their father and brother arguably acquired ownership through extraordinary prescription because of their adverse possession for thirty-two years (1953-1985), 29 this supposed ownership cannot extend to the entire disputed lot, but must be limited to the portion that they actually farmed. We cannot sustain the petitioners' contention that their ownership of the disputed land was established before the trial court through the series of tax declarations and receipts issued in the name of Margarito Mendoza. Such documents prove that the holder has a claim of title over the property. Aside from manifesting a sincere desire to obtain title thereto, they announce the holder's adverse claim against the state and other interested parties. 30

However, tax declarations and receipts are not conclusive evidence of ownership. 31 At most, they constitute mereprima facie proof of ownership or possession of the property for which taxes have been paid. 32 In the absence of actual public and adverse possession, the declaration of the land for tax purposes does not prove ownership.33 In sum, the petitioners' claim of ownership of the whole parcel has no legal basis.
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WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioners. SO ORDERED. Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.