[G.R. No. 119053. January 23, 1997.

]
FLORENTINO ATILLO III, petitioner, vs. COURT OF APPEALS, AMANCOR, INC., and
MICHELL LHUILLIER, respondents.
RESOLUTION
FRANCISCO, J.:
This is a petition for review on certiorari of the decision of the respondent Court of
Appeals in CA-G.R. No. 3677 promulgated on August 4, 1994 affirming in toto the decision of
Branch 7 of the Regional Trial Court of Cebu City in Civil Case No. CEB-9801 entitled
"Florentino L. Atillo III versus Amancor, Inc. and Michell Lhuillier".
The material antecedents are as follows:
On August 15, 1985, respondent Amancor, Inc. (hereinafter referred to as AMANCOR for brevity), a
corporation then owned and controlled by petitioner Florentino L. Atillo III, contracted a loan in the
amount of P1,000,000.00 with Metropolitan Bank and Trust Company, secured by real estate properties
owned by the petitioner.[1] Before the said loan could be paid, petitioner entered into a Memorandum of
Agreement dated June 14, 1988 (Annex "A" of the Complaint) with respondent Michell Lhuillier
(hereinafter referred to as LHUILLIER for brevity) whereby the latter bought shares of stock in
AMANCOR. As a consequence of the foregoing transaction, petitioner and LHUILLIER each became
owner of 47% of the outstanding shares of stock of AMANCOR while the officers of the corporation
owned the remaining 6%.[2]
In view of the urgent and immediate need for fresh capital to support the business operations of
AMANCOR, petitioner and LHUILLIER executed another Memorandum of Agreement on February
13, 1989 (Annex "B" of the Complaint) by virtue of which LHUILLIER undertook to invest additional
capital in AMANCOR.[3] As an addendum to the foregoing, a Supplemental Memorandum of
Agreement was entered into by the petitioner and LHUILLIER on March 11, 1989. [4] Relevant to the
case at bar is a stipulation in the said Supplemental Memorandum of Agreement which provides as
follows:
"4. F.L. Atillo III may dispose off (sic) his properties at P. del Rosario St., Cebu City which may involve
pre-payment of AMANCOR'S mortgage loan to the bank estimated at 300,000.00 and while
AMANCOR may not yet be in the position to re-pay said amount to him, it shall pay the interests to him
equivalent to prevailing bank rate."[5]
Pursuant to this stipulation, petitioner assumed AMANCOR' s outstanding loan balance
of P300,000.00 with Metropolitan Bank and Trust Company. After offsetting the amount
of P300,000.00 with some of the accounts that petitioner had with AMANCOR, the amount
which remained due to the petitioner was P199,888.89. Because of the failure of AMANCOR
to satisfy its obligation to repay petitioner, the latter filed a complaint for collection of a sum of
money docketed as Civil Case No. Ceb-9801 against AMANCOR and LHUILLIER before
Branch 7 of the Regional Trial Court of Cebu City.

At the pre-trial conference, petitioner, AMANCOR and LHUILLIER, assisted by their

respective counsels, stipulated on the following:
"1. That the parties admit the due execution and genuineness of the Memorandum of Agreement dated
14 June 1988 (Annex A), the Memorandum of Agreement dated 13 February 1989 (Annex B) and
Supplemental Agreement dated 11 March 1989 (Annex C);
2. That the defendants admit that the claim of the plaintiff amounted to P199,888.89 as of October 1,
1990;"[6]
and submitted the following issues to be resolved by the trial court:
"a. From the aforesaid Annexes A, B and C, is Michell J. Lhuillier personally liable to the plaintiff?
b. What rate of interests shall the defendant corporation and Michell J. Lhuillier, if the latter is liable,
pay the plaintiff?"[7] (Underscoring supplied.)
On the basis of the stipulation of facts and the written arguments of the parties, the trial
court rendered a decision in favor of the petitioner, ordering AMANCOR to pay petitioner the
amount ofP199,888.89 with interest equivalent to the bank rate prevailing as of March 11,
1989. LHUILLIER was, however, absolved of any personal liability therefor.[8]
It is from the trial court's conclusion of non-liability that petitioner appealed to respondent
court, arguing therein that as LHUILLIER signed the Memorandum of Agreement without the
official participation nor ratification of AMANCOR, LHUILLIER should have been declared
jointly and severally liable with AMANCOR.[9]
The respondent court found petitioner's contention bereft of merit and held in part that:
"Contrary to plaintiffs-appellants (sic) allegation, the indebtedness of P199,888.89 was incurred by
defendant AMANCOR, INC., alone. A thorough study of the records shows that plaintiff's cause of
action for collection of a sum of money arose from "his payment of the defendant corporation's
outstanding loan balance of P300,000.00 with Metropolitan Bank & Trust Company" x x x. Considering
the allegations in the complaint and those contained in the Memorandum of Agreement, the respondent
court properly ruled that the liability was incurred by defendant AMANCOR, INC., singly. We grant
that if plaintiff really believes that the indebtedness was incurred by defendant Lhuillier in his personal
capacity, he should not have offsetted (sic) some of his accounts with the defendant corporation, x x x.
As it is, plaintiff could have ofted (sic) to sue defendant Lhuillier in his personal capacity the whole
amount of indebtedness and not implead the defendant corporation as co-defendant.
xxx
x

xxx

xx

x x x [T]he indebtedness was incurred by the defendant corporation as a legal entity to pay the mortgage
loan. Defendant Lhuillier acted only as an officer/agent of the corporation by signing the said
Memorandum of Agreement."[10]

Aggrieved by the decision of respondent court, petitioner brought this instant petition
submitting the following issue for the resolution of this Court:
"When a party, by his judicial admissions, has affirmed that he has personal liability in a certain
transaction, may a court rule against such an admission despite clear indications that it was not affected
by mistakes palpable or otherwise?"[11]
Petitioner claims that LHUILLIER made a judicial admission of his personal liability in his
Answer wherein he stated that:
"3.11.
In all the subject dealings, it was between plaintiff and Lhuillier personally without the
official participation of Amancor, Inc.
xxx
x

xxx

xx

3.14 . Since the board of Amancor, Inc. did not formally ratify nor acceded (sic) to the personal
agreement between plaintiff and Lhuillier through no fault of the latter, the corporation is not bound and
the actionable documents are, at most, unenforceable insofar as the subject claim of plaintiff is
concerned."[12]

"For instance, if a party invokes an 'admission' by an adverse party, but cites the admission 'out of
context', then the one making the admission may show that he made no 'such' admission, or that his
admission was taken out of context.
This may be interpreted as to mean 'not in the sense in which the admission is made to appear.' That is
the reason for the modifier 'such'."[15] [Underscoring supplied.]
Here, petitioner appears to have taken the admissions made by LHUILLIER in
paragraph 3.11 of his Answer "out of context". Petitioner is seemingly misleading this Court by
isolating paragraph 3.11 of the said Answer from the preceding paragraphs. A careful scrutiny
of the Answer in its entirety will show that paragraph 3.11 is part of the affirmative allegations
recounting how LHUILLIER was persuaded to invest in AMANCOR which was previously
owned and managed by petitioner.[16] Paragraph 3.11 has reference to the fact that in all
investments made with AMANCOR through stock purchases, only petitioner and LHUILLIER
dealt with each other.[17] It is more than obvious that paragraph 3.11 has nothing to do with the
obligation of AMANCOR to petitioner which is the subject of the present case. Contrary to
petitioner's allegations, LHUILLIER had categorically denied personal liability for AMANCOR's
corporate debts, and in the succeeding paragraphs of the said Answer asserted the following:

And on the basis of such admission, petitioner contends that the decision of the respondent
court absolving LHUILLIER of personal liability is manifest error for being contrary to law,
particularly Section 4 of Rule 129 of the Rules of Court which provides that:

"3.12. As evident in the wordings of par. 12 of the Actionable Memorandum of Agreement dated 13
February 1989 (Annex B) and par. 4 of the actionable Supplemental Memorandum of Agreement dated
11 March 1989 (Annex C),Lhuillier did not engage to personally pay the corporate loans secured by
plaintiff's property as to release the property to plaintiff. On the contrary, as explicitly stated in the
aforesaid par. 4 of Annex C, ". . . while Amancor may not yet be in the position to repay said amount to
him, IT shall pay the interests to him equivalent to prevailing bank rate."

"An admission, verbal or written, made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made."

"3.13.
At most, therefore, Lhuillier x x x only agreed, for the corporation to repay plaintiff the
amount of the pre- terminated corporate loans with the bank and, pending improvement of Amancor's
finances, for said corporation to pay interest at prevailing bank rate. x x x."[18] (Underscoring supplied.)

Petitioner would want to further strengthen his contention by adverting to the consistent
pronouncement of this Court that: "x x x an admission made in the pleadings cannot be
controverted by the party making such admission and are conclusive as to him, and that all
proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether
objection is interposed by the party or not x x x."[13]

Furthermore, petitioner was well aware that LHUILLIER had never admitted personal
liability for the said obligation. In fact, in delineating the issues to be resolved by the trial court,
both parties submitted for the determination of the court, the question of whether or not
LHUILLIER is personally liable for the obligation of AMANCOR to petitioner. [19] Moreover, as
correctly observed by respondent court, if petitioner really believed that the liability was
incurred by LHUILLIER in his personal capacity, then he should not have offset his accounts
with those of AMANCOR's. The foregoing act of petitioner is a clear indication that he
recognized AMANCOR and not LHUILLIER as the obligor.

We find petitioner's contention to be without merit and the reliance on the general rule
regarding judicial admissions enunciated by the abovementioned provision of law and
jurisprudence misplaced.
As provided for in Section 4 of Rule 129 of the Rules of Court, the general rule that a
judicial admission is conclusive upon the party making it and does not require proof admits of
two exceptions: 1) when it is shown that the admission was made through palpable mistake,
and 2) when it is shown that no such admission was in fact made. [14] The latter exception
allows one to contradict an admission by denying that he made such an admission.

Granting arguendo that LHUILLIER had in fact made the alleged admission of personal
liability in his Answer, We hold that such admission is not conclusive upon him. Applicable by
analogy is our ruling in the case of Gardner vs. Court of Appeals which allowed a party's
testimony in open court to override admissions he made in his answer. Thus:
"The fact, however, that the allegations made by Ariosto Santos in his pleadings and in his declarations
in open court differed will not militate against the findings herein made nor support the reversal by
respondent court. As a general rule, facts alleged in a party's pleading are deemed admissions of that

party and are binding upon it, but this is not an absolute and inflexible rule. An answer is a mere
statement of fact which the party filing it expects to prove, but it is not evidence. As ARIOSTO
SANTOS himself, in open court, had repudiated the defenses he had raised in his ANSWER and against
his own interest, his testimony is deserving of weight and credence. Both the Trial Court and the
Appellate Court believed in his credibility and we find no reason to overturn their factual findings
thereon."[20] (Underscoring supplied.)
Prescinding from the foregoing, it is clear that in spite of the presence of judicial
admissions in a party's pleading, the trial court is still given leeway to consider other evidence
presented. This rule should apply with more reason when the parties had agreed to submit an
issue for resolution of the trial court on the basis of the evidence presented. As distinctly stated
in the stipulation of facts entered into during the pre-trial conference, the parties agreed that
the determination of LHUILLIER's liability shall be based on the Memoranda of Agreement
designated as ANNEXES "A", "B" and "C" of the Complaint. Thus, the trial court correctly
relied on the provisions contained in the said Memoranda of Agreement when it absolved
LHUILLIER of personal liability for the obligation of AMANCOR to petitioner.
Furthermore, on the basis of the same evidence abovementioned, respondent court did
not err when it refused to pierce the veil of corporate fiction, thereby absolving LHUILLIER of
liability for corporate obligations and deciding the question in this wise:
"The separate personality of the corporation may be disregarded, or the veil of corporation fiction may
be pierced and the individual shareholder may be personally liable (sic) to the obligations of the
corporation only when the corporation is used as a cloak or cover for fraud or illegality, or to work an
injustice, or where necessary to achieve equity or when necessary for the protection of the creditors.
This situation does not obtain in this case. In the case at bar, plaintiff-appellant failed to show that
defendant Lhuillier acted otherwise than what is required of him as an agent of a corporation. It does not
appear either that defendant-appellee Michel (sic) Lhuillier is jointly and severally liable with
AMANCOR INC. absent an express stipulation to that effect and sans clear and convincing evidence as
to his personal liability."[21]

For acceding to a request to massage the stomach of a neighbor's wife who was purportedly suffering
abdominal pains, Conchita Mahomoc got raped instead. Charged for the crime was the neighbor, Dante
Cepeda y Sapotalo in an Information alleging That on or about the 2nd day of April 1994 in Barangay Buhang, Magallanes,
Agusan del Norte, Philippines, and within the jurisdiction of this Honorable
Court, said accused, armed with a knife, by means of force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge of
Conchita Mahomoc, against her will.
CONTRARY TO LAW.[1]
Upon arraignment, accused assisted by counsel pleaded not guilty to the crime charged. [2] The case then
proceeded to trial after which the court a quo rendered judgment,[3] the dispositive portion of which
reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court hereby finds
accused DANTE CEPEDA y SAPOTALO GUILTY beyond reasonable doubt of
the crime of rape and accordingly sentences him to suffer the penalty
of RECLUSION PERPETUA. He shall serve his sentence entirely at the Davao
Prison and Penal Farm, Panabo, Davao del Norte. In addition, the accused is
ordered to pay the offended party moral damages in the sum of P50,000.00.[4] The
accused is entitled to the full benefits of his preventive imprisonment if he agrees
to abide by the same disciplinary rules imposed upon convicted prisoners,
conformably with Article 29 (as amended) of the Revised Penal Code. Accused is
also ordered to pay the costs.
IT IS SO ORDERED.[5]
Dissatisfied, accused interposed this appeal ascribing a lone assignment of error which asserts that -

The foregoing pronouncement is based on factual findings of the lower court which were
upheld by the respondent court, and which are thus, conclusive upon us pursuant to the well
established rule that factual findings of the Court of Appeals, supported by substantial
evidence on the record, are final and conclusive and may not be reviewed on appeal.[22]
ACCORDINGLY, finding no reversible error, the decision appealed from is hereby
AFFIRMED and this petition is DENIED.
[G.R. No. 124832. February 1, 2000] PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs. DANTE CEPEDA y SAPOTALO, accusedappellant.

DECISION
YNARES-SANTIAGO, J.:

THE TRIAL COURT COMMITTED GRAVE ERROR IN FINDING THE

ACCUSED -APPELLANT GULTY OF RAPE BEYOND REASONABLE
DOUBT.
The trial court summed the versions of both prosecution and defense thus:
On April 4, 1994, Conchita Mahomoc went to the PNP Station of Magallanes to
complain that she was raped by Dante Cepeda. On April 5, 1994, she signed her
Complaint and swore to it before MCTC Clerk of Court Gad B. Curaza. She
claims that at about 3:00 o'clock in the afternoon of April 2, 1994, Dante Cepeda
went to her house at Buhang, Magallanes, Agusan del Norte, and asked her to [go
to] his house to massage(hilot) his wife who was suffering from stomach ache.
Regina Carba, her neighbor, was in her house and she asked her to go with her.
Cepeda was at his kitchen door when they reached his house. He told Gina to
leave as his wife, who was Muslim, would get angry if there were many people in
their home. He insisted on this many times so that Gina had to leave. Cepeda led

the complainant to his bedroom. At the door, Conchita peeped inside and saw a
figure covered by a blanket whom she presumed was Cepeda's wife. At that
instance, accused immediately placed his left arm around her shoulders and
pointed a knife at the pit of her stomach saying: "Just keep quiet, do not make any
noise, otherwise I will kill you." She elbowed him, stooped and shouted "Help!"
three times but Cepeda covered her mouth then carried her to the room by her
armpits. Shaking herself free from his grasp, she hit her left shin at the edge of
the floor of the bedroom. Inside the room, he threatened her with a knife and
ordered her to remove her panty and lie on the bed. Afraid, she did as ordered and
the accused also removed his pants and brief. He placed himself on top of her,
spread her legs with his legs, inserted his penis inside her vagina and had sexual
intercourse with her at the same time embracing and kissing her. After he was
through, she ran towards the kitchen with Cepeda chasing her.
Regina Carba confirmed this narration of the complainant on the aspect that at
[a]bout 3:00 o'clock in the afternoon of April 2, 1994, she was at Conchita's
house to discuss the gift they would give their neighbor who was getting married.
Cepeda arrived and asked Conchita to give his wife a massage as she was having
stomach pains. Conchita had been a masseuse since 1979. On complainant's
request, she accompanied her to Cepeda's house. Upon arrival, the accused told
her to leave as his Muslim wife gets angry when there are plenty of people in
their house. Both she and Conchita protested but Cepeda insisted on it several
times forcing her to leave the house of the accused.
Veronica Delmiguiz declared that at about 3:00 o'clock in the afternoon of April
2, 1994, she heard a shout for help from the house of Cepeda. She looked and
saw that the windows were closed. She did not give it a second thought thinking
that it was a family trouble as she has heard Cepeda and his wife quarrel on
previous occasions. Helen Antolijao co-executed an affidavit with Veronica
Delminguiz on April 5, 1994 but was not anymore presented by the prosecution
as her testimony would only corroborate that of Delminguiz.
.......x x x.......x x x.......x x x
This charge is refuted by the accused claiming that he and Conchita are lovers.
He came to know her as he passes by her house in going to his place of work. He
began working with EMCO in the month of February 1994. The complainant has
gone to their house four times in February 1994, first to sell Herway cosmetics,
the second time to sell "chorizo", the third time to sell fish and the fourth time to
sell clothing materials. He was present in their house only on the first occasion
that complainant had gone there. He knew of the other occasions because his wife
told him. The fifth time the complainant went to their house on March 6, he
courted her by saying: "Sing, I knew that you like me and I like you." Then they
had sexual intercourse. The next time Conchita came to see him and had sexual
intercourse with Him was on March 13, then March 17, March 29 and March 27
when on this date, she asked him to leave his wife to elope with her as she would
also leave her husband. He rejected this proposal because he loved his wife and
Conchita had three daughters. Conchita, according to him, was displeased

because he would not elope with her. On April 2, 1994, Conchita again came to
his house and while they were petting, somebody outside his house said: "You
there, what are you doing? At this Conchita left his house and went home. At
about 10:00 o'clock that evening, he was arrested.
The accused's wife, Dory Cepeda, testified that indeed the complainant has gone
to their house four times in the month of February and on these occasions, her
husband was at home. Her husband started working with EMCO in the month of
March while she began working as a baby sitter also in the month of March,
1994."
On the basis of the foregoing factual summation, the trial court rendered judgment against accused
Dante Cepeda as stated at the outset.
Insisting on his innocence, accused-appellant claims in his defense that he and private complainant were
carrying on an adulterous love affair. According to him, his request to private complainant that the latter
massage his allegedly ill wife "is a pre-arranged lie between the accused-appellant and private
complainant in order to mislead Regina Carba" the truth being that accused-appellant "purposely went
to the house of private complainant to invite her to his house, their place of rendezvous for their
passionate affair."[6] He asserts that the charge of rape was "a contrivance or an afterthought rather than a
truthful plaint for redress of an actual wrong" [7] because private complainant "feeling guilty of such an
adulterous affair and out of fear that Regina might have suspected something between her and the
accused-appellant, thought of accusing her paramour of rape in anticipation of the possible retribution
by her husband should he later on discover their relationships." [8]
Guided by the three (3) principles in the review of rape cases, namely, that 1.] An accusation for rape can be made with facility; it is difficult to prove but
more difficult for the person accused, though innocent to disprove;
2.] In view of the intrinsic nature of the crime of rape where only two persons are
usually involved, the testimony of the complainant is scrutinized with extreme
caution; and
3.] The evidence of the prosecution stands or fall on its own merits and can not be
allowed to draw strength from weakness of the defense.[9]
We find the appeal bereft of merit.
Accused-appellant's allegation of an illicit amorous relationship is too shopworn to deserve serious
consideration and is totally unworthy of credence. A circumspect scrutiny of the record discloses that
the 'illicit love affair' angle appears as a fabrication by accused- appellant. As an affirmative defense, the
alleged 'love affair' needs convincing proof. [10] Having admitted to having had carnal knowledge of the
complainant several times,[11] accused-appellant bears the burden of proving his defense by substantial
evidence.[12] The record shows that other than his self-serving assertions, there is no evidence to support
the claim that accused-appellant and private complainant were in love.

It must be noted that accused-appellant and private complainant are both married and are living together
with their respective spouses.[13] In this case, other than accused-appellant's self-serving testimony, no
other evidence like love letters, mementos or pictures were presented to prove his alleged amorous
relationship with private complainant. Neither was there any corroborative testimony supporting this
pretended illicit affair. If accused-appellant were really the paramour of private complainant, she would
not have gone to the extent of bringing this criminal action which inevitably exposed her to humiliation
of recounting in public the violation of her womanhood. Moreover, she would not have implicated a
person, who is allegedly her lover, as the perpetrator of an abominable crime and thereby lay open their
illicit relationship to public shame and ridicule not to mention the ire of a cuckolded husband and the
withering contempt of her children were it not the truth.[14]
Evidence to be believed must not only come from a credible source but must also be credible in itself
such as one that the common experience and observation of mankind can approve as probable under the
circumstances.[15] The Court has taken judicial cognizance of the fact that in rural areas in this country,
women by custom and tradition act with circumspection and prudence, and that great caution is
observed so that their reputation remains untainted. [16]Such circumspection must have prompted the
victim to request Regina Carba to accompany her on the errand of mercy to accused- appellant's house.
Unfortunately, Carba was shooed away by accused-appellant on the pretext that his wife who was a
Muslim was averse to having too many people in their house.
Even assuming ex gratia argumenti that accused- appellant and private complainant were indeed
sweethearts as he claims, this fact alone will not extricate him from his predicament. The mere assertion
of a 'love relationship' would not necessarily rule out the use of force to consummate the crime. [17] It
must be stressed that in rape cases, the gravamen of the offense is sexual intercourse with a
woman against her will or without her consent.[18] Thus, grantingarguendo that the accused and the
victim were really lovers this Court has reiterated time and again that "[A] sweetheart cannot be forced
to have sex against her will. Definitely, a man cannot demand sexual gratification from a fiancee, worse,
employ violence upon her on the pretext of love. Love is not a license for lust." [19]
Succinctly stated, in rape the prosecution must rule out the victim's consent to the sexual act. [20] In the
case at bar, the testimony of private complainant was clear: she did not consent to penile invasion.
[21]
Assuming for argument's sake that accused-appellant and private complainant were sweethearts, rape
was nevertheless committed because accused-appellant had sex with the victim by force and against her
will.[22]
Indeed, unless deeply wronged and aggrieved, private complainant would not have instituted this case at
all. That the victim had been married to her husband for seventeen (17) years and is a mother of four (4)
children whose ages at the time ranged from seventeen (17), sixteen (16), fourteen (14) and ten (10),
[23]
rendered her exposure to public trial of rape all the more embarrassing and painful.
As aptly pointed out in People v. Mendoza,[24] a married woman with a husband and three (3) daughters
would not , publicly admit that she had been criminally abused unless that was the truth. Similarly, it
defies reason in this case why a mother of four (4) would concoct a story of defloration, allow the
examination of her private parts[25] and publicly disclose that she has been sexually abused if her motive
were other than to fight for her honor and bring to justice the person who defiled her. [26] Thus not
surprisingly when she was queried as to how much would she claim for her defilement in terms of moral
damages, she emphatically declared as follows:

Q.......If you were to ask for moral damages from the court, how much would you
claim for moral damages?
A.......I do not need payment it is Justice that I ask.[27]
She, likewise, flatly denied the existence of an illicit affair with the accused-appellant in face of the not
too subtle insinuations of defense counsel to this effect on cross-examination, viz:
Q.......I will ask you a candid question, Mrs. Marohomoc. Is it not a fact that at
one time you gifted Dante Cepeda with a Herway lotion?
A.......No, sir.
Q.......So you will also deny that you gifted him with Mark cigarettes.
A.......Oh no![28]
In a prosecution for rape, the evaluation of the evidence presented during trial ultimately revolves
around the credibility of the complaining witness. [29] When a woman says she has been raped, she says
in effect all that is necessary to show that she has been raped and her testimony alone is sufficient if it
satisfies the exacting standard of credibility needed to convict the accused.[30]
In scrutinizing the credibility of witnesses, case law has established the following doctrinal guidelines:
first, the appellate tribunal will not disturb the findings of the lower court unless there is a showing that
it had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that
would have affected the result of the case; second, the findings of the trial court pertaining to the
credibility of witnesses are entitled to great respect and even finality since it had the opportunity to
examine their demeanor as they testified on the witness stand; and third, a witness who testified in a
categorical, straightforward, spontaneous and frank manner and remained consistent on crossexamination is a credible witness.[31]
Applying these guidelines, we find no reason to disturb the following findings and conclusions of the
trial court:
From the evidence of both the prosecution and the defense, the Court could make
out this deduction: from the accused's heart sprang this evil desire and he
contrived a plan to rape the complainant. He made up a story about his wife being
in pain and shaped a mat covered with a blanket thus making it appear that his
wife as in bed. He closed all the windows of his house so no one could see what
happened inside. What he did not expect though was the presence of Regina
Carba in the house of the complainant so that he again had to make up another
tale about his wife being a Muslim to get rid of Carba. Without any "illicit
relationship" having been established between the accused and the complainant
before April 2, 1994, what is the basis for the sexual intercourse on that day? The
complainant says "rape" and the Court agrees. The Court just cannot believe that
a mother of four would demand from a man who became her neighbor for only

about one and a half months to elope with her. There is no evidence that her
relationship with her husband was on the rocks. Rather, assoon as her husband
arrived from work, she reported to him the abuse she suffered from the hands of
the accused and a commotion ensued because of the husband's anger. From the
accused's own mouth, he had been convicted once for possession of "indian pana"
and had been transferring from one place to another, without a permanent home,
while the complainant has established her home in Magallanes and is secure
therein together with her family. A Filipina woman, especially a mother of three
daughters, would not bring herself, her family and her husband to embarrassment,
to public scrutiny and being the talk of the community unless what she had
testified that she was raped is true.[32] If, in the remote possibility, complainant
had voluntarily consented to have sex with him, her most natural reaction would
have been to conceal it or keep silent as this would bring disgrace to her honor
and reputation, as well as to her family.[33]
The conscience of the Court will be very much at ease with a finding that the
accused is guilty. It could not decree an acquittal based on lies for falsehood is the
anathema of justice. There can be no justice based on lies.
To restate what had been said earlier, it is highly inconceivable vis-a-vis the prevailing facts of the case
for the victim to conjure a tale of ravishment and, in the process, subject herself and her family to the
disgrace, social humiliation and trauma attendant to a prosecution for rape as well as the stigma of a
lifetime of shame incident thereto.[34] Furthermore, the conduct of the victim immediately following the
alleged assault is of utmost important so as to establish the truth or falsity of the charges of rape. [35] In
this case, we find the private complainant's prompt report of her defilement to her husband as well as
the authorities as convincing indications that she has been truly wronged. A complainant's act in
immediately reporting the commission, of rape has been considered by this Court as a factor
strengthening her credibility.[36]
With regard to the civil liability, however, the trial court's award of damages should be modified. Under
controlling case law, an award of Fifty Thousand Pesos (P50,000.00) as civil indemnity is mandatory
upon the finding of the fact of rape.[37] This is exclusive of the award of moral damages of Fifty
Thousand Pesos (P50,000.00) without need of further proof. [38] The victims' injury is now recognized as
inherently concomitant with and necessarily proceeds from the appalling crime of rape which per
se, warrants an award for moral damages.[39]
WHEREFORE, with the sole MODIFICATION that accused-appellant Dante Cepeda y Sapotalo pay
complainant the amount of Fifty Thousand Pesos (P50,000.00) as civil indemnity consistent with
controlling case law, aside from the award of Fifty Thousand Pesos (P50,000.00) as moral damages, the
decision of the trial court in Criminal Case No. 6246 finding accused Dante Cepeda y Sapotalo guilty
beyond reasonable doubt of the crime of rape is hereby AFFIRMED in all other respects.
SO ORDERED.
G.R. No. 126397

February 1, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL MENDOZA CERBITO,

VICENTE MENDOZA ACEDERA and JIMBOY CERBITO MORALES, accused-appellants.
GONZAGA-REYES, J.:
On the 3rd day of September 1992 at around 2:20 p.m. the passengers of a Philippine Rabbit
Bus travelling on the North Expressway on its way to Manila were victimized in a hold-up
committed by four men who boarded the bus as it was approaching the Tabang tollgate. A
policeman who was a passenger in the bus shot one of the holduppers. The policeman was
shot in turn by another holdupper; the policeman died.
On September 24, 1992, the following information was filed against Daniel Mendoza
Cerbito alias "Daniel", Vicente Mendoza Acedera, Jimboy Cerbito Morales alias "Emboy", and
John Doe, all of Laoang, Northern Samar, for violation of P.D. 532 (otherwise known as the
Anti-Highway Robbery Act):
The undersigned Asst. Provincial Prosecutor accuses Daniel Mendoza
Cerbito alias "Daniel",
Vicente
Mendoza
Acedera,
Jimboy
Cerbito
Morales alias "Emboy" and John Doe, whose identity is still unknown of violation of
P.D. 532, otherwise known as the Anti-Highway Robbery Act, committed as follows:
That on or about the 3rd day of September, 1992, in the municipality of
Guiguinto, province of Bulacan, Philippines, along the North expressway,
and within the jurisdiction of this Honorable Court, the above-named
accused, armed with firearms and bladed weapons, conspiring,
confederating together and helping one another, did then and there
wilfully, unlawfully and feloniously, with force employed on and intimidation
of persons and with intent of gain, rob, take and carry away with them
money, pieces of jewelry and other personal belongings amounting to
more or less P20,000.00, to the damage and prejudice of the passengers
of the Philippine Rabbit Bus No. 1271 in the aforesaid amount.
Contrary to law.1
On March 26, 1993 another information for homicide was filed against the same four accused
as follows:
The undersigned Asst. Provincial Prosecutor accuses Daniel Mendoza
Cerbito alias "Daniel",
Vicente
Mendoza
Acedera,
Jimboy
Cerbito
Morales alias "Emboy" and John Doe, whose identity is still unknown of the crime of
homicide, penalized under the provisions of Art. 249 of the Revised Penal Code,
committed as follows:
That on or about the 3rd day of September, 1992, in the municipality of
Guiguinto, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, armed with firearms and
bladed weapons and with intent to kill one Pat. Edgar Ponce y Bato,
conspiring and confederating together and mutually helping one another,
did then and there willfully, unlawfully and feloniously attack, assault, and
shoot with the said firearms the said Pat. Edgar Ponce y Bato, hitting the
latter on his neck, thereby inflicting on him serious physical injuries which
directly caused his death.

Contrary to law.2
The accused pleaded not guilty to the two offenses charged. The two cases were consolidated
for joint trial.
Two passengers of the bus were presented by the prosecution; their testimonies were
summarized by the trial court as follows:
Concordia Ramilo Pagdanganan testified: On September 3, 1992, 2 p.m., she was
on aboard the Philippine Rabbit Bus No. 1271. She came from Brgy. San Jose,
Calumpit, Bulacan on her way home to Manila. While she was on board the bus at
about 2:20 p.m. four men, namely: Daniel Cerbito, Vicente Acedera, a small person
about sixteen years old, and Jimboy boarded the bus at Eurobake. At Tabang Plaza,
Daniel Cerbito (he was at the last row of the bus) announced a hold-up. There was a
policeman between them (Concordia Pagdanganan), the holdupper, the policeman,
he is at her side and another man at back of the driver, he announced a hold-up and
the policeman stood up and he shot Vicente Acedera at her (Concordia
Pagdanganan's) back. Vicente Acedera could not stand up anymore but the
policeman tried to lie down beside her because there is another holdupper Jimboy
beside him standing up but Daniel Cerbito took the money of that student Magsakay
of Malolos, a student of PMI, and a Seiko watch and P40:00. Jimboy shot the
policeman. The policeman was seated at the right seat, at the same row as
Concordia Pagdanganan. Jimboy was beside this policeman. Aside from her, an old
man (she does not know him) was seated behind the driver. The two of them
(Concordia Pagdanganan and the old man) was seated beside the driver. The
policeman Edgar Ponce shot Vicente Acedera at her (Concordia's) back. Vicente
Acedera was hit at the stomach. (She identified Vicente Acedera in open Court).
Then Jimboy shot the policeman but Concordia Pagdanganan was not able to see
whether the policeman was hit or not. All she knows is that the policeman died after
they took the wallet. When the policeman slumped near her legs, he just lied down
and was looking upward. Then Daniel Cerbito went near the policeman and got his
revolver, the wallet and the police badge (chapa) and then he shot the policeman on
the head and the latter died there. (She identified Daniel Cerbito in open Court).
After Daniel Cerbito shot the policeman, the latter died. After the policeman died, he
took the .38 caliber, the money and the police badge. After divesting the policeman
of the revolver, money and his watch, they (accused) took the money from the other
passengers (almost 50 of them) who were aboard the bus. They did not take
anything from her because Jimboy asked her, "Do you have any money, Manang?"
She said, "No, I don't have any." Afterwards, Jimboy just put the gun at the head of
the driver. She knows some of the passengers who were divested of money, namely
Magsakay, student of PMI and one friend of Magsakay. At the time the other
passengers were divested of their cash and belongings, Vicente Acedera was not at
the front seat of the driver because he was already hit on the stomach and
complaining of pain. The fiscal asked her where was Daniel Cerbito positioned then
when these other co-passengers were being divested. She replied Jimboy was
inside the bus taking money from other passengers together with the small sixteen
years old boy.
After these accused divested her co-passengers of their cash and belongings,
Jimboy pointed the gun to the driver and Vicente Acedera was also near him was
seated at the right side of the driver, while Cerbito was divesting all passengers.
Then he took the jacket from one of the passengers (who was a security guard from
San Fernando) and put it on Vicente Acedera. Then the accused stopped at the

Malinta Exit and they alighted there. The bus stopped at the Malinta Exit because
they (accused) ordered the driver to stop the vehicle at Malinta Exit to let them
disembark. This incident was reported to the police station. She gave a statement to
the police. She was shown a statement consisting of 2 pages dated September 16,
1992 and was asked whether this is the same statement she gave to the police
authority. She replied in the affirmative. (The statement consisting of 2 pages was
marked as Exh. A, the second page as Exh. A-1). She identified her signature over
the typewritten name Gng. Concordia Pagdanganan (the same was marked as Exh.
A-2). She was able to identify these 2 persons because she was looking at them
through the mirror. After the hold-up, she saw them again when they were looking
for Vicente Acedera when she was asked to identify them at the NBI. (TSN,
February 10, 1993, pp. 4-9, 11-15).
She identify the accused Daniel Cerbito in open Court. When asked as to the
participation of Daniel Cerbito, she replied during that time, he was the leader of the
robbery holdup last September 2, 1992 at 2:20 p.m. as the leader, he was the one
who took the gun from Eduardo Ponce. Daniel Cerbito shot Edgar Ponce. (She
identified the accused Vicente Acedera and Jimboy Cerbito in open court. ( TSN,
January 25, 1994).
On cross-examination, she testified: After this incident, she was not approached by
the relatives of the victim to testify in this case. The persons who came to her were
the police of San Juan and the NBI. On the date of the incident, she was then on
board a Philippine Rabbit bus bound for Manila. While approaching the Tabang
tollgate, 4 persons boarded the bus. She was sitting on the left side of the bus just
behind the driver's seat. Then the 4 persons who boarded the bus spread
themselves inside the bus. Defense counsel asked her being in front settled in the
bus, how would she notice that all of these persons seated at their respective places
in the bus. She replied that there is a big mirror in front of the bus so a person can
see every one who will board the bus from head to foot. She will be able to see all
persons who boarded the bus from head to foot. She was able to see the feet of
these 4 persons. They were wearing rubber shoes. When asked as to what are the
colors, she replied the other one is flesh-colored; the other one is white and they
have a 16 year old companion wearing slippers. Vicente Acedera (the one who was
injured) was wearing the flesh colored shoes. After boarded the bus, Daniel Cerbito
announced the hold-up together with the 16 year old boy. (TSN, December 10,
1993, pp. 2-6).
She knows the relatives of the deceased (one of whom is the brother of E. Ponce
who is in court) but they did not ask her to testify against the accused. When asked
by the court whether she testified (her) even before she met that person, she replied
that she testified there in the NBI. Defense counsel asked her whether she did not
even talk to the relatives of the deceased before testifying in the NBI. She replied
that she was not the one who talked to them, it was the NBI. She was able to talk to
the relatives (of E. Ponce) when they were together but they (the relatives) did not
request her to testify, but the NBI requested her to testify. (TSN, January 25, 1994,
pp. 6, 7).
Amor Magsakay testified: On September 3, 1992, 2 p.m., he was riding on a bus.
He boarded the Philippine Rabbit Bus waiting shade at the crossing of Malolos,
Bulacan. When he boarded the bus, there were other passengers inside that bus.
An unusual incident happened while the bus was cruising along the North Diversion
Road on September 3, 1992. He was on his way to Avenida, Manila. While he was
inside the bus, somebody shouted "This is a hold-up" and then there was a
commotion inside the bus. Then they started getting all their (A. Magsakay's and

other passenger) watches and money and they (A. Magsakay and other
passengers) did not know that there was a Four persons announced that hold-up
inside the bus. He was able to know the names of the accused. (He identified the 3
accused Daniel Cerbito, Vicente Acedera and Jim Morales) although 4 persons
announced the hold up inside the bus. A. Magsakay did not know what happened to
the other one. When these 4 persons announced the hold up inside the bus, they
were armed with guns and 26 balisong. Daniel Cerbito was holding a gun. When
asked as to the caliber of the firearm used by D. Cerbito, he replied that it was a
paltik. He knew that it was a paltik because D. Cerbito pointed the gun at him and
he (D. Cerbito) asked for his (Amor's) money and his watch. It was a revolver. His
Seiko 5 watch (given by his father) and P40.00 were taken from him.
At the time the hold up was announced, Vicente Acedera was holding a revolver.
While the hold up was in progress aboard the bus, Vicente Acedera did not do
anything to him (A. Magsakay) but he was in front of the bus getting the money of
the passengers. At that time, Jimboy Morales was holding a balisong knife. While
the hold-up was in progress on board that bus, J. Morales was getting the money of
the passengers, the same thing that the 2 others were doing. Daniel Cerbito shot
the policeman (who was on board also) because the latter bought with the robbers
when he knew that there was a hold-up; the policeman stood up and shot one of the
robbers. A. Magsakay does not know the name of the person who was shot. Then
the Policeman was shot. After the shoot out, the robbers went down at the
Meycauayan exit. A. Magsakay and his co-passengers did not do anything. A.
Magsakay was investigated by the police and he gave a written statement. The
policeman who was shot died. (TSN, August 17, 1994, pp. 3-14).
On cross-examination he testified: When he first heard the shot, he instinctively hid
himself among the passengers for reasons of safety with his face towards the floor
of the bus. After the first shot, he was not able to see anymore what happened
because his face was towards the floor of the bus. When asked by the court as to
how did he know as to who shot the policeman, he replied after the 2 shots, he
raised his head and saw that it was one of the robbers who shot the policeman. It
was only after the second shot which he witnessed. The court asked him if the at the
first shot, he saw the policeman who was shot by one of the robbers and he (Amor)
bowed his head. He replied in the affirmative. He looked up when he saw the
robbers shot the policeman. He cannot remember the plate number of the Philippine
Rabbit bus. (Ibid, pp. 14-16).3
The accused raised the defense of denial and alibi. Daniel Cerbito testified that he was in
Northern Samar attending the town fiesta in Marubay, Laoang on the date in question. Jimboy
Cerbito Morales declared that he was in his hometown at Candawit, Laoang, Northern Samar
where he farmed copra as a source of livelihood and where he was arrested on March 19,
1993. Vicente Acedera claimed that he was at his brother's house at 1-C Calamansi St. corner
Luzon Ave., Quezon City on September 3, 1992, and that he sustained the gunshot wound as
he was walking through a street going to the house of his cousin in Navotas.
The trial court held that the evidence presented by the accused was not sufficient to refute the
evidence presented by the prosecution. It found the accused guilty in the two cases, as
follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows in
Criminal Case Nos. 1941-M-92 and 569-M-93:

1. finding the accused DANIEL MENDOZA CERBITO, VICENTE MENDOZA

ACEDERA and JIMBOY MORALES GUILTY beyond reasonable doubt of the crime
of robbery with homicide penalized under P.D. 532 (otherwise known as the AntiHighway Robbery Law) and are hereby sentenced to suffer the penalty ofreclusion
perpetua;
2. ordering accused Daniel Mendoza Cerbito, Vicente Mendoza Acedera and
Jimboy Cerbito Morales to pay jointly and severally the following amount:
a) to the heirs of the victim Pat. Edgar Ponce:
P 50,000.00

for the life of the victim

50,000.00

for moral damages

19,000.00

for actual damages (based on Schedule I and supported by E

C for the prosecution)

936,000.00

for reasonable living allowance of victim Pat. Edgar Ponce (5

P1,872.000.00 of Schedule II)

P
1,055,000.00 TOTAL AMOUNT TO BE PAID
============
b) P40,000.00 to private complainant Amor Magsakay
with 6% interest on all amounts due from the filing of the information of
Criminal Case Nos. 1941-M-92 on September 24, 1992.
The accused appealed to the Court on a lone assignment of error,
namely:
THE COURT OF ORIGIN HAS COMMITTED AN ERROR IN
CONVICTING ACCUSED-APPELLANTS DANIEL MENDOZA CERBITO,
VICENTE MENDOZA ACEDERA AND JIMBOY CERBITO MORALES
FOR ALLEGEDLY VIOLATING PRESIDENTIAL DECREE NO. 532 (ANTIHIGHWAY ROBBERY LAW)4
In a seven-page memorandum, the Public Attorney's Office pleads that the accused should be
absolved on the ground of reasonable doubt. The defense of alibi should have been given
credence because it was physically impossible for them to be at the scene of the crime (North
Expressway) on September 3, 1992 as they were several miles away:
. . . during the alleged highway robbery on September 3, 1992 accused-appellants
Daniel Mendoza Cerbito and Jimboy Cerbito Morales were in Laoang, Northern
Samar. Daniel Mendoza was there in Samar and attended a fiesta (Page 05,
Decision, Ibid.) And this fact (and truth) was corroborated by his better half (or
spouse) in the person of Felisa Castro-Cerbito; by former barangay captain Nilo
Sacaquing of Marubay, Laoang, Northern Samar; and by one Romeo Incinares.
(Pages 06-07, 10 and 17, Decision, Ibid). In the same conduit, Jimboy Cerbito

Morales was also there in Northern Samar on the particular date. Like Daniel
Mendoza Cerbito, he (Jimboy Morales) also attended the said fiesta as confirmed by
defense witness Nilo Sacaquing (Page 07, Decision, Ibid.) And defense witness
Adelaida Balang likewise supported the fact that Jimboy Morales was in Samar at
that point in time. (Pages 13-14 and 17, Decision, ibid.)
Regarding accused-appellant Vicente Mendoza Acedera, he was in the residence of
his brother located at 1-c Calamansi Street corner Luzon Avenue, Quezon on the
alleged date of highway robbery. (Page 12, Decision, ibid.)5
The Solicitor General seeks an affirmance of the conviction but recommends a modification of
the penalty. The appellee's brief points out that the defense of alibi must fail as against the
positive identification of the two prosecution witnesses, and in view of the presence of
conspiracy as proven by the circumstances attending the robbery, each of the appellants
incurred the same civil liability and should suffer a uniform penalty. As the two were charged
with two separate informations, one for highway robbery under P.D. 532, and the other for
homicide, they should be convicted for two separate crimes.
The evidence of the prosecution has established the guilt of the three accused beyond
reasonable doubt.
The testimonies of the two passengers who witnessed the robbery and the homicide, namely
Concordia Pagdanganan6 and Amor Magsakay7 who identified all three accused-appellants in
court8 are of vital if not decisive value.
Concordia Pagdanganan was on board the Philippine Rabbit Bus Number 1271 on her way
home from Calumpit, Bulacan to her home in Manila. She was seated at the back of the driver
in the same row as Patrolman Edgar Ponce. The three accused-appellants, together with a
16-year old boy boarded the bus as it was approaching the Tabang tollgate. She saw the four
men because there was a big mirror in front of the bus, through which one can see everyone
who will board the bus from head to foot. At Tabang Plaza, Daniel Cerbito, who had seated
himself in the last row of the bus, announced a hold-up. Policeman Ponce stood up and shot
Vicente Acedera hitting him in the stomach. Vicente Acedera could not stand up anymore.
Jimboy Morales, who was seated beside Ponce whether Ponce was hit or not. Ponce slumped
beside her legs, and as he was lying down, Daniel Cerbito approached and shot Ponce in the
head after getting the latter's revolver, wallet and police "chapa". Jimboy Morales together with
the 16-year old boy, divested the other passengers of their cash and belongings; there were
almost fifty passengers in the bus. Among the victims were Magsakay, a student of PMI and
his friend. Magsakay was divested of his watch and P40.00 by Daniel Cerbito. Nothing was
taken from Concordia because Jimboy asked her if she had any money and she answered
she had none. Cerbito took the jacket of one of the passengers, who was a security guard
from San Fernando, and put it on Vicente Acedera. Afterwards, the accused-appellants
ordered the driver to stop the bus at Malinta exit where they disembarked. 9 On crossexamination, Concordia testified that when the four persons boarded the bus they spread
themselves inside the bus. She noted that one of the four, Vicente Acedera, wore flesh-colored
rubbers shoes, the other two accused-appellants wore white rubber shoes, and the 16-year
old companion wore slippers.10
Another eyewitness, Amor Magsakay, was presented by the prosecution. He testified that the
accused-appellants ware armed. Cerbito carried a paltik; pointed the gun at him and took his
Seiko 5 watch and money (P40.00). Acedera was also carrying a revolver, and was in front of
the bus getting the money of the passengers. Jimboy Morales was holding a balisong knife.
He did not know what happened to the fourth hold-upper. He stated that it was Cerbito who
shot Policeman Ponce; he put his head down towards the floor after hearing the first shot but

after hearing two shots, he put his head up and witnessed the shooting of Ponce by one of the
robbers.11
All the accused-appellants claimed they were somewhere else at the time of the incident.
Jimboy Morales testified that he was in Barangay Candawit, Laoang, Northern Samar, his
home province, where he farms copra for a livelihood. 12 A neighbor, Adelaida Balang,
corroborated his alibi that he was in Barangay Candawit on September 3, 1992 and that he
never left their place; she was sure because almost everyday (she) sends him to run errands
for (her).13
Daniel Cerbito also denied that he was involved in the hold-up incident. He testified that he
was then attending the fiesta in Laoang, Northern Samar with his wife; they left Manila on
August 15, 1992 and returned on September 9, 1992. 14 His wife Felisa corroborated his
testimony.15 A co-worker, Romeo Incinares, also testified that he accompanied Daniel Cerbito
and his wife on August 15, 1992 to the Bus Terminal at Pasay City on his way to the
province.16
Nilo Sacaguing, Barangay Captain of Marubay, Laoang, Norther Samar was presented by the
defense to corroborate the alibi of Daniel Cerbito. Sacaguing testified that Daniel Cerbito and
his family attended the barrio fiesta that was celebrated on August 23 and 24, 1992. He
remembered specifically that Daniel Cerbito asked him for a barangay clearance and a letter
of recommendation from Congressman Ong who is the owner of Litton Mills. Daniel Cerbito
left the barangay the last week of September.17 Sacaguing also stated that he came to know
that Morales was at the town fiesta.18
For his part, Vicente Acedera testified that he was at his brother's house at 1-c Calamansi St.,
cor. Luzon Avenue, from August 16, 1992 up to September 3, 1992. He was on his way to the
house of a cousin in Navotas and as he alighted from a bus passing through Letre he heard a
gun shot. He fell down as he was hit and was brought to the hospital where he stayed from
September 3 to September 12. Jimboy Morales is his cousin. Cerbito is a barriomate. 19
After a careful examination of the entire evidence, we resolve to affirm the judgment of
conviction. We agree with the trial court's rejection of the defense of alibi for the reason that
said defense cannot prevail over the positive identification made by the two eyewitnesses
presented by the prosecution. Confronted with contradictory declarations and statements, the
trial court cannot be faulted for giving greater weight to the positive testimonies of the
witnesses who have not been shown to have any motive to falsely implicate the accusedappellants, and whose credibility has not been placed in doubt. Alibi has generally been
regarded with disfavor by the court because it is easily fabricated 20 and we have no reason to
deviate from this rule.
Highway robbery/brigandage is defined in Section 2(e) of P.D. 532 entitled "Anti-Piracy and
Anti-Highway Robbery Law" as "(t)he seizure of any person for ransom, extortion or other
unlawful purposes, or the taking away of the property of another by means of violence against
or intimidation of person or force upon things or other unlawful means, committed by any
person on any Philippine Highway." The robbery must be directed not only against specific,
intended or preconceived victims, but against any and all prospective victims. 21 All the above
elements were established.
As regards the imposable penalty, we find well-taken the Solicitor General's recommendation
to impose separate penalties for highway robbery and for homicide as these crimes were the
subject of separate informations. The accused-appellants can only be penalized for the crimes
charged in the information. Otherwise, the appellants would be deprived of their constitutional

right to be informed of the nature and cause of accusation against them. 22 The penalty for
simple highway robbery is reclusion temporal in its minimum period. However, consonant with
the ruling in the case of People vs. Simon,23 since P.D. 532 adopted the penalties under the
Revised Penal Code in their technical terms, with their technical signification and effects, the
indeterminate sentence law is applicable in this case. Accordingly, for the crime of highway
robbery, the indeterminate prison term is from seven (7) years and four (4) months of Prision
Mayor as minimum to thirteen (13) years, nine (9) months and ten (10) days of reclusion
temporal as maximum.
We must modify the computation of the award for loss of earning capacity. The absence of
documentary evidence to substantiate the claim of the victim's sisters for the loss will not
preclude recovery for said amount.24 Gloria Guinto, the victim's sister testified that when her
brother died, he was 26 years old, single and was earning P4,000.00 a month as a member of
the PNP. Loss of earning capacity is computed on the basis of the following formula:25
Net
Earning
Capacity
X

Life
Expectancy
[2/3
(80-age
at death)]

Gross
Annual
Income(GAI)

living
expenses
(50% of GAI)

DECISION
KAPUNAN, J.:
This petition for certiorari under Rule 65 seeks to annul and set aside the decision,
[1]
promulgated on 21 June 1996, of the National Labor Relations Commission ("NLRC") which
reversed the decision[2] of the Labor Arbiter, rendered on 15 June 1994, ordering Regent Food
Corporation ("RFC") to reinstate Alexander Vinoya to his former position and pay him
backwages.
Private respondent Regent Food Corporation is a domestic corporation principally engaged in
the manufacture and sale of various food products. Private respondent Ricky See, on the
other hand, is the president of RFC and is being sued in that capacity.
Petitioner Alexander Vinoya, the complainant, worked with RFC as sales representative until
his services were terminated on 25 November 1991.
The parties presented conflicting versions of facts.

Thus:
2(80-26)
X

48,000.00

24,000.00

24,000.00

3
X

36

P864,000.00

We likewise modify the award of P40,000.00 to private complainant Amor Magsakay. The
evidence showed that what was taken from Magsakay was a Seiko watch and P40.00. We
have ruled that an ordinary witness cannot establish the value of jewelry and the trial court can
only take judicial notice of the value of goods which are matters of public knowledge or are
capable of unquestionable demonstration. The value of jewelry is not a matter of public
knowledge nor is it capable of unquestionable demonstration and in the absence of receipts or
any other competent evidence besides the self-serving valuation made by the prosecution
witness,26 we cannot award the reparation for the s Seiko watch.
WHEREFORE, Daniel Mendoza Cerbito, Vicente Acedera, and Jimboy Cerbito Morales are
found guilty of highway robbery in Criminal Case No. 1941-M-92, and of homicide in Criminal
Case No. 569-M-93 and are each hereby sentenced to an indeterminate prison term from
seven (7) years and four (4) months of prision mayor as minimum to thirteen (13) years, nine
(9) months, and ten (10) days of reclusion temporal as maximum for highway robbery; and an
indeterminate prison term from eight (8) years and one (1) day of prision mayor as minimum to
fourteen (14) years eight (8) months and one (1) day of reclusion temporal as maximum; and
are ordered to pay, jointly and severally (1) the heirs of Edgar Ponce P50,000.00 as death
indemnity, P19,000.00 for actual damages, P864,000.00 for loss of earnings, and (2) Amor
Magsakay the amount of P40.00.1wphi1.ntSO ORDERED.
[G.R. No. 126586. February 2, 2000]
ALEXANDER VINOYA, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION,
REGENT FOOD CORPORATION AND/OR RICKY SEE (PRESIDENT),respondents.

Petitioner Alexander Vinoya claims that he applied and was accepted by RFC as sales
representative on 26 May 1990. On the same date, a company identification card [3] was issued
to him by RFC. Petitioner alleges that he reported daily to the office of RFC, in Pasig City, to
take the latters van for the delivery of its products. According to petitioner, during his employ,
he was assigned to various supermarkets and grocery stores where he booked sales orders
and collected payments for RFC. For this task, he was required by RFC to put up a monthly
bond of P200.00 as security deposit to guarantee the performance of his obligation as sales
representative. Petitioner contends that he was under the direct control and supervision of Mr.
Dante So and Mr. Sadi Lim, plant manager and senior salesman of RFC, respectively. He
avers that on 1 July 1991, he was transferred by RFC to Peninsula Manpower Company, Inc.
("PMCI"), an agency which provides RFC with additional contractual workers pursuant to a
contract for the supply of manpower services (hereinafter referred to as the "Contract of
Service").[4] After his transfer to PMCI, petitioner was allegedly reassigned to RFC as sales
representative. Subsequently, on 25 November 1991, he was informed by Ms. Susan Chua,
personnel manager of RFC, that his services were terminated and he was asked to surrender
his ID card. Petitioner was told that his dismissal was due to the expiration of the Contract of
Service between RFC and PMCI. Petitioner claims that he was dismissed from employment
despite the absence of any notice or investigation. Consequently, on 3 December 1991,
petitioner filed a case against RFC before the Labor Arbiter for illegal dismissal and nonpayment of 13th month pay.[5]
Private respondent Regent Food Corporation, on the other hand, maintains that no employeremployee relationship existed between petitioner and itself. It insists that petitioner is actually
an employee of PMCI, allegedly an independent contractor, which had a Contract of
Service[6] with RFC. To prove this fact, RFC presents an Employment Contract [7] signed by
petitioner on 1 July 1991, wherein PMCI appears as his employer. RFC denies that petitioner
was ever employed by it prior to 1 July 1991. It avers that petitioner was issued an ID card so
that its clients and customers would recognize him as a duly authorized representative of
RFC. With regard to the P200.00 pesos monthly bond posted by petitioner, RFC asserts that it
was required in order to guarantee the turnover of his collection since he handled funds of

RFC. While RFC admits that it had control and supervision over petitioner, it argues that such
was exercised in coordination with PMCI. Finally, RFC contends that the termination of its
relationship with petitioner was brought about by the expiration of the Contract of Service
between itself and PMCI and not because petitioner was dismissed from employment.
On 3 December 1991, when petitioner filed a complaint for illegal dismissal before the Labor
Arbiter, PMCI was initially impleaded as one of the respondents. However, petitioner thereafter
withdrew his charge against PMCI and pursued his claim solely against RFC. Subsequently,
RFC filed a third party complaint against PMCI. After considering both versions of the parties,
the Labor Arbiter rendered a decision,[8] dated 15 June 1994, in favor of petitioner. The Labor
Arbiter concluded that RFC was the true employer of petitioner for the following reasons: (1)
Petitioner was originally with RFC and was merely transferred to PMCI to be deployed as an
agency worker and then subsequently reassigned to RFC as sales representative; (2) RFC
had direct control and supervision over petitioner; (3) RFC actually paid for the wages of
petitioner although coursed through PMCI; and, (4) Petitioner was terminated per instruction of
RFC. Thus, the Labor Arbiter decreed as follows:
ACCORDINGLY, premises considered respondent RFC is hereby
declared guilty of illegal dismissal and ordered to immediately reinstate
complainant to his former position without loss of seniority rights and other
benefits and pay him backwages in the amount of P103,974.00.
The claim for 13th month pay is hereby DENIED for lack of merit.
This case, insofar as respondent PMCI [is concerned] is DISMISSED, for
lack of merit.
SO ORDERED.[9]
RFC appealed the adverse decision of the Labor Arbiter to the NLRC. In a decision, [10] dated
21 June 1996, the NLRC reversed the findings of the Labor Arbiter. The NLRC opined that
PMCI is an independent contractor because it has substantial capital and, as such, is the true
employer of petitioner. The NLRC, thus, held PMCI liable for the dismissal of petitioner. The
dispositive portion of the NLRC decision states:
WHEREFORE, premises considered, the appealed decision is modified
as follows:
1. Peninsula Manpower Company Inc. is declared as employer of the
complainant;
2. Peninsula is ordered to pay complainant his separation pay
of P3,354.00 and his proportionate 13th month pay for 1991 in the amount
of P2,795.00 or the total amount of P6,149.00.
SO ORDERED.[11]

Separate motions for reconsideration of the NLRC decision were filed by petitioner and PMCI.
In a resolution,[12] dated 20 August 1996, the NLRC denied both motions. However, it was only
petitioner who elevated the case before this Court.
In his petition for certiorari, petitioner submits that respondent NLRC committed grave abuse
of discretion in reversing the decision of the Labor Arbiter, and asks for the reinstatement of
the latters decision.
Principally, this petition presents the following issues:
1. Whether petitioner was an employee of RFC or PMCI.
2. Whether petitioner was lawfully dismissed.
The resolution of the first issue initially boils down to a determination of the true status of
PMCI, whether it is a labor-only contractor or an independent contractor.
In the case at bar, RFC alleges that PMCI is an independent contractor on the sole ground
that the latter is a highly capitalized venture. To buttress this allegation, RFC presents a copy
of the Articles of Incorporation and the Treasurers Affidavit [13] submitted by PMCI to the
Securities and Exchange Commission showing that it has an authorized capital stock of One
Million Pesos (P1,000,000.00), of which Three Hundred Thousand Pesos (P300,000.00) is
subscribed and Seventy-Five Thousand Pesos (P75,000.00) is paid-in. According to RFC,
PMCI is a duly organized corporation engaged in the business of creating and hiring a pool of
temporary personnel and, thereafter, assigning them to its clients from time to time for such
duration as said clients may require. RFC further contends that PMCI has a separate office,
permit and license and its own organization.
Labor-only contracting, a prohibited act, is an arrangement where the contractor or
subcontractor merely recruits, supplies or places workers to perform a job, work or service for
a principal.[14] In labor-only contracting, the following elements are present:
(a) The contractor or subcontractor does not have substantial capital or
investment to actually perform the job, work or service under its own
account and responsibility;
(b) The employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the
main business of the principal.[15]
On the other hand, permissible job contracting or subcontracting refers to an arrangement
whereby a principal agrees to put out or farm out with a contractor or subcontractor the
performance or completion of a specific job, work or service within a definite or predetermined
period, regardless of whether such job, work or service is to be performed or completed within
or outside the premises of the principal. [16]A person is considered engaged in legitimate job
contracting or subcontracting if the following conditions concur:

(a) The contractor or subcontractor carries on a distinct and independent

business and undertakes to perform the job, work or service on its own
account and under its own responsibility according to its own manner and
method, and free from the control and direction of the principal in all
matters connected with the performance of the work except as to the
results thereof;
(b) The contractor or subcontractor has substantial capital or investment;
and
(c) The agreement between the principal and contractor or subcontractor
assures the contractual employees entitlement to all labor and
occupational safety and health standards, free exercise of the right to selforganization, security of tenure, and social and welfare benefits.[17]
Previously, in the case of Neri vs. NLRC,[18] we held that in order to be considered as a job
contractor it is enough that a contractor has substantial capital. In other words, once
substantial capital is established it is no longer necessary for the contractor to show evidence
that it has investment in the form of tools, equipment, machineries, work premises, among
others. The rational for this is that Article 106 of the Labor Code does not require that the
contractor possess both substantial capital and investment in the form of tools, equipment,
machineries, work premises, among others.[19] The decision of the Court in Neri thus states:
Respondent BCC need not prove that it made investment in the form of
tools, equipment, machineries, work premises, among others, because it
has established that it has sufficient capitalization. The Labor Arbiter and
the NLRC both determined that BCC had a capital stock of P1 million fully
subscribed and paid for. BCC is therefore a highly capitalized venture and
cannot be deemed engaged in "labor-only" contracting.[20]
However, in declaring that Building Care Corporation ("BCC") was an independent contractor,
the Court considered not only the fact that it had substantial capitalization. The Court noted
that BCC carried on an independent business and undertook the performance of its contract
according to its own manner and method, free from the control and supervision of its principal
in all matters except as to the results thereof.[21] The Court likewise mentioned that the
employees of BCC were engaged to perform specific special services for its principal. [22] Thus,
the Court ruled that BCC was an independent contractor.
The Court further clarified the import of the Neri decision in the subsequent case of Philippine
Fuji Xerox Corporation vs. NLRC.[23] In the said case, petitioner Fuji Xerox implored the Court
to apply theNeri doctrine to its alleged job-contractor, Skillpower, Inc., and declare the same as
an independent contractor. Fuji Xerox alleged that Skillpower, Inc. was a highly capitalized
venture registered with the Securities and Exchange Commission, the Department of Labor
and Employment, and the Social Security System with assets exceeding P5,000,000.00
possessing at least 29 typewriters, office equipment and service vehicles, and its own pool of
employees with 25 clerks assigned to its clients on a temporary basis. [24] Despite the evidence
presented by Fuji Xerox the Court refused to apply theNeri case and explained:

Petitioners cite the case of Neri v. NLRC, in which it was held that the
Building Care Corporation (BCC) was an independent contractor on the
basis of finding that it had substantial capital, although there was no
evidence that it had investments in the form of tools, equipment,
machineries and work premises. But the Court in that case considered not
only the capitalization of the BCC but also the fact that BCC was providing
specific special services (radio/telex operator and janitor) to the employer;
that in another case, the Court had already found that BCC was an
independent contractor; that BCC retained control over the employees
and the employer was actually just concerned with the end-result; that
BCC had the power to reassign the employees and their deployment was
not subject to the approval of the employer; and that BCC was paid in
lump sum for the services it rendered. These features of that case make it
distinguishable from the present one.[25]
Not having shown the above circumstances present in Neri, the Court declared Skillpower, Inc.
to be engaged in labor-only contracting and was considered as a mere agent of the employer.
From the two aforementioned decisions, it may be inferred that it is not enough to show
substantial capitalization or investment in the form of tools, equipment, machineries and work
premises, among others, to be considered as an independent contractor. In fact,
jurisprudential holdings are to the effect that in determining the existence of an independent
contractor relationship, several factors might be considered such as, but not necessarily
confined to, whether the contractor is carrying on an independent business; the nature and
extent of the work; the skill required; the term and duration of the relationship; the right to
assign the performance of specified pieces of work; the control and supervision of the workers;
the power of the employer with respect to the hiring, firing and payment of the workers of the
contractor; the control of the premises; the duty to supply premises, tools, appliances,
materials and labor; and the mode, manner and terms of payment.[26]
Given the above standards and the factual milieu of the case, the Court has to agree with the
conclusion of the Labor Arbiter that PMCI is engaged in labor-only contracting.
First of all, PMCI does not have substantial capitalization or investment in the form of tools,
equipment, machineries, work premises, among others, to qualify as an independent
contractor. While it has an authorized capital stock of P1,000,000.00, only P75,000.00 is
actually paid-in, which, to our mind, cannot be considered as substantial capitalization. In the
case of Neri, which was promulgated in 1993, BCC had a capital stock of P1,000,000.00
which was fully subscribed and paid-for. Moreover, when the Neri case was decided in 1993,
the rate of exchange between the dollar and the peso was onlyP27.30 to $1[27] while presently
it is at P40.390 to $1.[28] The Court takes judicial notice of the fact that in 1993, the economic
situation in the country was not as adverse as the present, as shown by the devaluation of our
peso. With the current economic atmosphere in the country, the paid-in capitalization of PMCI
amounting to P75,000.00 cannot be considered as substantial capital and, as such, PMCI
cannot qualify as an independent contractor.
Second, PMCI did not carry on an independent business nor did it undertake the performance
of its contract according to its own manner and method, free from the control and supervision

of its principal, RFC. The evidence at hand shows that the workers assigned by PMCI to RFC
were under the control and supervision of the latter. The Contract of Service itself provides that
RFC can require the workers assigned by PMCI to render services even beyond the regular
eight hour working day when deemed necessary.[29] Furthermore, RFC undertook to assist
PMCI in making sure that the daily time records of its alleged employees faithfully reflect the
actual working hours.[30] With regard to petitioner, RFC admitted that it exercised control and
supervision over him.[31] These are telltale indications that PMCI was not left alone to supervise
and control its alleged employees. Consequently, it can be concluded that PMCI was not an
independent contractor since it did not carry a distinct business free from the control and
supervision of RFC.
Third, PMCI was not engaged to perform a specific and special job or service, which is one of
the strong indicators that an entity is an independent contractor as explained by the Court in
the cases of Neriand Fuji. As stated in the Contract of Service, the sole undertaking of PMCI
was to provide RFC with a temporary workforce able to carry out whatever service may be
required by it.[32] Such venture was complied with by PMCI when the required personnel were
actually assigned to RFC. Apart from that, no other particular job, work or service was required
from PMCI. Obviously, with such an arrangement, PMCI merely acted as a recruitment agency
for RFC. Since the undertaking of PMCI did not involve the performance of a specific job, but
rather the supply of manpower only, PMCI clearly conducted itself as labor-only contractor.
Lastly, in labor-only contracting, the employees recruited, supplied or placed by the contractor
perform activities which are directly related to the main business of its principal. In this case,
the work of petitioner as sales representative is directly related to the business of RFC. Being
in the business of food manufacturing and sales, it is necessary for RFC to hire a sales
representative like petitioner to take charge of booking its sales orders and collecting
payments for such. Thus, the work of petitioner as sales representative in RFC can only be
categorized as clearly related to, and in the pursuit of the latters business. Logically, when
petitioner was assigned by PMCI to RFC, PMCI acted merely as a labor-only contractor.
Based on the foregoing, PMCI can only be classified as a labor-only contractor and, as such,
cannot be considered as the employer of petitioner.
However, even granting that PMCI is an independent contractor, as RFC adamantly suggests,
still, a finding of the same will not save the day for RFC. A perusal of the Contract of Service
entered into between RFC and PMCI reveals that petitioner is actually not included in the
enumeration of the workers to be assigned to RFC. The following are the workers enumerated
in the contract:
1. Merchandiser
2. Promo Girl
3. Factory Worker
4. Driver[33]

Obviously, the above enumeration does not include the position of petitioner as sales
representative. This only shows that petitioner was never intended to be a part of those to be
contracted out. However, RFC insists that despite the absence of his position in the
enumeration, petitioner is deemed included because this has been agreed upon between itself
and PMCI. Such contention deserves scant consideration. Had it really been the intention of
both parties to include the position of petitioner they should have clearly indicated the same in
the contract. However, the contract is totally silent on this point which can only mean that
petitioner was never really intended to be covered by it.
Even if we use the "four-fold test" to ascertain whether RFC is the true employer of petitioner
the same result would be achieved. In determining the existence of employer-employee
relationship the following elements of the "four-fold test" are generally considered, namely: (1)
the selection and engagement of the employee or the power to hire; (2) the payment of wages;
(3) the power to dismiss; and (4) the power to control the employee. [34] Of these four, the
"control test" is the most important. [35] A careful study of the evidence at hand shows that RFC
possesses the earmarks of being the employer of petitioner.
With regard to the first element, the power to hire, RFC denies any involvement in the
recruitment and selection of petitioner and asserts that petitioner did not present any proof that
he was actually hired and employed by RFC.
It should be pointed out that no particular form of proof is required to prove the existence of an
employer-employee relationship.[36] Any competent and relevant evidence may show the
relationship.[37] If only documentary evidence would be required to demonstrate that
relationship, no scheming employer would ever be brought before the bar of justice. [38] In the
case at bar, petitioner presented the identification card issued to him on 26 May 1990 by RFC
as proof that it was the latter who engaged his services. To our mind, the ID card is enough
proof that petitioner was previously hired by RFC prior to his transfer as agency worker to
PMCI. It must be noted that the Employment Contract between petitioner and PMCI was dated
1 July 1991. On the other hand, the ID card issued by RFC to petitioner was dated 26 May
1990, or more than one year before the Employment Contract was signed by petitioner in
favor of PMCI. It makes one wonder why, if petitioner was indeed recruited by PMCI as its own
employee on 1 July 1991, how come he had already been issued an ID card by RFC a year
earlier? While the Employment Contract indicates the word "renewal," presumably an attempt
to show that petitioner had previously signed a similar contract with PMCI, no evidence of a
prior contract entered into between petitioner and PMCI was ever presented by RFC. In fact,
despite the demand made by the counsel of petitioner for the production of the contract which
purportedly shows that prior to 1 July 1991 petitioner was already connected with PMCI, RFC
never made a move to furnish the counsel of petitioner a copy of the alleged original
Employment Contract. The only logical conclusion which may be derived from such inaction is
that there was no such contract and that the only Employment Contract entered into between
PMCI and petitioner was the 1 July 1991 contract and no other. Since, as shown by the ID
card, petitioner was already with RFC on 26 May 1990, prior to the time any Employment
Contract was agreed upon between PMCI and petitioner, it follows that it was RFC who
actually hired and engaged petitioner to be its employee.
With respect to the payment of wages, RFC disputes the argument of petitioner that it paid his
wages on the ground that petitioner did not submit any evidence to prove that his salary was

paid by it, or that he was issued payslip by the company. On the contrary RFC asserts that the
invoices[39] presented by it, show that it was PMCI who paid petitioner his wages through its
regular monthly billings charged to RFC.
The Court takes judicial notice of the practice of employers who, in order to evade the
liabilities under the Labor Code, do not issue payslips directly to their employees. [40] Under the
current practice, a third person, usually the purported contractor (service or manpower
placement agency), assumes the act of paying the wage.[41] For this reason, the lowly worker
is unable to show proof that it was directly paid by the true employer. Nevertheless, for the
workers, it is enough that they actually receive their pay, oblivious of the need for payslips,
unaware of its legal implications. [42] Applying this principle to the case at bar, even though the
wages were coursed through PMCI, we note that the funds actually came from the pockets of
RFC. Thus, in the end, RFC is still the one who paid the wages of petitioner albeit indirectly.
As to the third element, the power to dismiss, RFC avers that it was PMCI who terminated the
employment of petitioner. The facts on record, however, disprove the allegation of RFC. First
of all, the Contract of Service gave RFC the right to terminate the workers assigned to it by
PMCI without the latters approval. Quoted hereunder is the portion of the contract stating the
power of RFC to dismiss, to wit:
7. The First party ("RFC") reserves the right to terminate the services of
any worker found to be unsatisfactory without the prior approval of the
second party ("PMCI").[43]
In furtherance of the above provision, RFC requested PMCI to terminate petitioner from his
employment with the company. In response to the request of RFC, PMCI terminated petitioner
from service. As found by the Labor Arbiter, to which we agree, the dismissal of petitioner was
indeed made under the instruction of RFC to PMCI.
The fourth and most important requirement in ascertaining the presence of employeremployee relationship is the power of control. The power of control refers to the authority of
the employer to control the employee not only with regard to the result of work to be done but
also to the means and methods by which the work is to be accomplished. [44] It should be borne
in mind, that the "control test" calls merely for the existence of the right to control the manner
of doing the work, and not necessarily to the actual exercise of the right. [45] In the case at bar,
we need not belabor ourselves in discussing whether the power of control exists. RFC already
admitted that it exercised control and supervision over petitioner.[46] RFC, however, raises the
defense that the power of control was jointly exercised with PMCI. The Labor Arbiter, on the
other hand, found that petitioner was under the direct control and supervision of the personnel
of RFC and not PMCI. We are inclined to believe the findings of the Labor Arbiter which is
supported not only by the admission of RFC but also by the evidence on record. Besides, to
our mind, the admission of RFC that it exercised control and supervision over petitioner, the
same being a declaration against interest, is sufficient enough to prove that the power of
control truly exists.
We, therefore, hold that an employer-employee relationship exists between petitioner and
RFC.

Having determined the real employer of petitioner, we now proceed to ascertain the legality of
his dismissal from employment.
Since petitioner, due to his length of service, already attained the status of a regular employee,
[47]
he is entitled to the security of tenure provided under the labor laws. Hence, he may only be
validly terminated from service upon compliance with the legal requisites for dismissal. Under
the Labor Code, the requirements for the lawful dismissal of an employee are two-fold, the
substantive and the procedural aspects. Not only must the dismissal be for a valid or
authorized cause,[48] the rudimentary requirements of due process - notice and hearing [49]
must, likewise, be observed before an employee may be dismissed. Without the concurrence
of the two, the termination would, in the eyes of the law, be illegal. [50]
As the employer, RFC has the burden of proving that the dismissal of petitioner was for a
cause allowed under the law and that petitioner was afforded procedural due process. Sad to
say, RFC failed to discharge this burden. Indeed, RFC never pointed to any valid or authorized
cause under the Labor Code which allowed it to terminate the services of petitioner. Its lone
allegation that the dismissal was due to the expiration or completion of contract is not even
one of the grounds for termination allowed by law. Neither did RFC show that petitioner was
given ample opportunity to contest the legality of his dismissal. In fact, no notice of such
impending termination was ever given him. Petitioner was, thus, surprised that he was already
terminated from employment without any inkling as to how and why it came about. Petitioner
was definitely denied due process. Having failed to establish compliance with the
requirements on termination of employment under the Labor Code, the dismissal of petitioner
is tainted with illegality.
An employee who has been illegally dismissed is entitled to reinstatement to his former
position without loss of seniority rights and to payment of full backwages corresponding to the
period from his illegal dismissal up to actual reinstatement.[51] Petitioner is entitled to no less.
WHEREFORE, the petition is GRANTED. The decision of the NLRC, dated 21 June 1996, as
well as its resolution, promulgated on 20 August 1996, are ANNULLED and SET ASIDE. The
decision of the Labor Arbiter rendered on 15 June 1994, is hereby REINSTATED and
AFFIRMED.
[G.R. No. 110899. March 7, 2000]
ELIZARDO DITCHE y DELA CERNA, petitioner, vs. COURT OF APPEALS (2nd Division)
and NONITO TAM, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review [1] of the Decision[2] dated January 14, 1993, as well as the
Resolution[3] dated June 10, 1993 of the Court of Appeals which modified the judgment [4] of
conviction rendered by the Regional Trial Court (RTC)[5] from frustrated to attempted murder.

On December 15, 1986, Asst. Provincial Fiscal Bernardo G. Delfin filed with the Regional Trial
Court an Information[6] for Frustrated Murder against petitioner Elizardo Ditche and one Rene
Espaa. It reads:
"That on the 3rd day of April, 1983, at or about 6:00 oclock in the
afternoon, along the national highway in Barangay San Roque,
Municipality of Asturias, Province of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, together
with two other persons whose identities are still unknown, the latter two to
be prosecuted separately as soon as procedural requirements shall have
been complied with upon their identification, conspiring, confederating and
mutually helping each other, all armed with high-powered firearms, with
evident premeditation and treachery and intent to kill, did then and there
wilfully, unlawfully and feloniously ambush, shoot and fire their firearms at
the direction of NONITO TAM, MRS. ANNABELLA TAM, CEDRIC TAM
AND EMELITO TINGAL who were riding on a motorcycle on the way to
Poblacion Asturias, Cebu from Tubigagmanok, Asturias, Cebu, hitting
Nonito Tam and Emelito Tingal and the said victim suffered gunshot
wounds, thus performing all the acts of execution which would have
produced the crime of Murder as a consequence but nevertheless did not
produce it by reason of causes independent of the will of the accused,
that is, the frantic maneuver of the motorcycle to make it run in zigzag and
the timely medical attendance extended to the victims at the Cebu (Velez)
General Hospital.
"Contrary to law."
Duly arraigned on May 25, 1984, petitioner Elizardo Ditche and Rene Espaa pleaded "Not
Guilty" to the charge.[7] In the course of the trial, however, Rene Espaa died on February 13,
1990.[8]
In due time, the trial court rendered its decision [9] convicting petitioner Ditche of Frustrated
Murder, the dispositive portion of which reads:
"WHEREFORE, considering that the quantum of evidence in the case at
bar has satisfied the moral certainty required in the criminal case, it is
therefore the findings of this court to hold the accused GUILTY beyond
reasonable doubt of frustrated murder in Article 248, in relation to Art. 50
of the Revised Penal Code. It is hereby sentenced [sic] of this court for
the accused after applying the indeterminate sentence law to suffer the
penalty of six (6) years, one (1) month and eleven (11) days to ten (10)
years and to pay the amount of P1,500.00 as hospitalization expenses
and Five Thousand Pesos (P5,000.00) as moral damages and to pay the
cost.
"SO ORDERED."

Petitioner appealed from the decision to the Court of Appeals.

On January 14, 1993, the Court of Appeals promulgated its decision affirming the guilt of
petitioner, but at the same time agreeing with the recommendation of the Solicitor General that
since the wound inflicted on the complainant was not of such serious nature as would have
produced death, petitioner should only be guilty of Attempted and not Frustrated Murder.[10]
On February 17, 1993, petitioner filed a Motion for Reconsideration [11] of the decision. He also
filed a Motion for New Trial [12] on March 19, 1993, praying that the case be remanded to the
lower court for the reception of the testimonies of new witnesses Marcelo Remis and Angela
Nemenzo.
On June 10, 1993, the Court of Appeals denied both Motion for Reconsideration and Motion
for New Trial on the grounds that first, the former is a mere reiteration or repetition of the
arguments already ventilated in his brief and second, the latter was filed beyond the
reglementary period.[13]
Hence, this petition for review of the decision of the Court of Appeals.
The pertinent facts are:
Sometime on March 30, 1983 at around 5:30 in the afternoon, Nonito Tam, [14] went to the
house of Dr. Noel at Ginabasa, Tubigagmanok, Asturias, Cebu to inform Dr. Noel about the
theft of coconuts in his plantation. A minute later, petitioner arrived. [15] In the course of their
conversation, a verbal quarrel ensued between petitioner and Nonito Tam. Petitioner
challenged the latter to a fist fight. But Dr. Noel intervened and pacified them. Having calmed
down, both petitioner and Tam left for home.[16]
On April 3, 1983, at around 6:00 oclock in the evening, Tam, his wife Annabella, son, Cedric
and a farm helper, Emelito Tingal were on their way home from their farm at Barangay
Tubigagmanok, Asturias, Cebu. While riding a motorcycle driven by Tam they were ambushed
at Barangay San Roque.[17] Shortly before reaching the site of the ambush, Tam had already
sighted two (2) men half-naked from the waist, sitting on a sack of copra placed along the right
side of the road going to Asturias, Cebu. When Tam and company were four (4) meters away
from the said sack of copra, the two (2) men stood up and began firing at them using a
revolver. Tam continued to negotiate the road amid the gunfire. Ten (10) meters away from the
ambush site, Tam looked back and this time he saw four (4) men firing and chasing them. He
positively identified two (2) of the four (4) men as petitioner Ditche and the now deceased
Rene Espaa.[18]
Upon reaching their house at Poblacion, Asturias, Cebu, Tam told his neighbor, Lucy Dumdum,
to report the incident to the police authorities. [19] Lucy Dumdum was also the one who asked
permission from the Mayor to lend them his car to transport the injured to the Cebu (Velez)
General Hospital for medical treatment. The car was driven by one Carlo Magno Alao, brother
of Lucy Dumdum.[20] Dr. Reynaldo Baclig was the physician who treated the injured at the said
hospital.[21]

During cross-examination, Tam admitted that he filed a case for Grave Threats against the late
Rene Espaa with the office of petitioner Ditche who was, at that time, the barangay captain.
But petitioner Ditche did not entertain his complaint, so he filed a case with the Office of the
Provincial Fiscal. For this reason, petitioner allegedly got irritated and plotted his revenge.[22]

"I. THE RESPONDENT COURT OF APPEALS ERRED IN DENYING THE

PETITIONERS MOTION FOR NEW TRIAL DESPITE ITS HAVING BEEN
FILED SEASONABLY IN ACCORDANCE WITH SECTION 14, RULE 124
OF THE REVISED RULES ON CRIMINAL PROCEDURE.

On re-direct examination, Tam declared that he realized that he was hit only after driving one
(1) kilometer away from the ambush site when he felt numbness on his right knee. [23] His
helper, Emelito Tingal, was also hit on the back of his left knee.

"II. THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS

DISCRETION AND ERRED WHEN IT AFFIRMED THE CONVICTION OF
THE PETITIONER ON THE BASIS OF AN ILLOGICAL AND
IMPOSSIBLE CONCLUSION OF POSITIVE IDENTIFICATION OF
PETITIONER AS THE ALLEGED ASSAILANT, IN UTTER DISREGARD
OF NUMEREOUS CIRCUMSTANCES AND/OR FACTS ESTABLISHED
BY EVIDENCE EXTANT ON THE RECORDS WHICH NEGATE SUCH
IDENTIFICATION
AND
GROSSLY
IGNORING
THE
PRONOUNCEMENTS OF THE SUPREME COURT WHICH ARE
CONSIDERED
AS
THE
APPLICABLE
LAW
ON
SUCH
CIRCUMSTANCES.

Although the shooting incident was reported by Lucy Dumdum on April 3, 1983, police
authorities did not make any record. According to them Dumdums report was an informal
report, hence, no investigation was ever conducted on that day.[24]
Once discharged from the hospital on April 7, 1983, Tam reported the incident to the police
authorities and had the same entered in the police blotter. However, to his surprise, the
certification of the police stated that the attackers were unidentified. Tam called the attention of
Pat. Tomas Tundag, the policeman on duty, but the latter did not rectify the erroneous report.
Pat. Tundag did not bother to change the certification. [25] Thus, Tam reported the incident to the
National Bureau of Investigation (NBI) hoping that from the NBI he could obtain justice and
protection.[26]
Annabella Rojo Tam, wife of Tam, gave corroborative testimony. She positively identified
petitioner Ditche and the deceased Espaa as two (2) of the four (4) men who fired at them at
Barrio San Roque, on April 3, 1983 at around 6:00 oclock in the evening. [27]
Leticia Quijano Noel, another prosecution witness, also corroborated the testimony of Tam.
She declared that on March 30, 1983, Tam went to their house to report the theft that
happened in their coconut plantation. She asked his son to invite and fetch petitioner Ditche,
their Barangay Captain, to come over to their house. In the course of their conversation, [28] a
heated argument ensued between petitioner and Tam. Petitioner challenged Tam to a fight.
But Dr. Noel pacified both of them and when both calmed down, Dr. and Mrs. Noel invited the
two (2) to join them for dinner. Thereafter, both left for home.[29]
Petitioners defense is basically alibi. His testimony was corroborated by defense witness
Venpelubio Gilbuena, his Barangay Secretary. He claimed that on April 3, 1983 at around 4:00
oclock in the afternoon, he was at his residence at Ginabasan, Tubigagmanok, together with
Gilbuena. Witness Gilbuena helped him prepare the minutes of the meeting of the Association
of Barangay Council of Asturias of which petitioner was the Secretary. Both left the petitioners
house at around 7:00 oclock in the evening. Gilbuena returned to his own house while
petitioner reported for work at the White Cement Factory.[30]
On cross-examination, witness Gilbuena admitted that petitioner Ditche requested him to
testify on his behalf.[31]
Petitioner raises the following assignment of errors:

"III. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN

MAKING CONCLUSIONS IN ITS DECISION THAT ARE GROUNDED
ENTIRELY ON SURMISES OR CONJECTURES AND IN MAKING
INFERENCES WHICH ARE MANIFESTLY MISTAKEN AND WITHOUT
ANY SPECIFIC EVIDENTIARY BASIS."[32]
The petition is devoid of merit.
Petitioner contends that respondent Court of Appeals erred in denying his motion for new trial
on the ground that the same was filed beyond the period for perfecting an appeal. He
maintained that he received the Court of Appeal's decision on January 22, 1993. On February
17, 1993, he filed his motion for reconsideration. Pending resolution of said motion, petitioner
filed a motion for new trial on March 19, 1993 claiming newly discovered evidence which
would result in the reversal of his conviction.
While it is true that petitioners motion for new trial was seasonably filed, in order for the said
motion to be granted, the same must be based on newly discovered evidence material to his
defense.[33]
Petitioner's allegedly newly discovered evidence consists of the testimonies of Marcelo Remis
and Angela Nemenzo to the effect that at the time relevant to this case, they were residing
within the vicinity of the ambush site and that when the shooting incident took place, it was
already dark as it was already, in their estimate, 7:00 o'clock and not 6:00 o'clock in the
evening as declared by the prosecution witnesses.
However, not only is such allegedly newly discovered evidence necessarily predicated on the
alleged incredulousness of the prosecution witness, whose credibility has in fact already been
determined by the trial court, but more importantly, it merely attempts to corroborate the earlier
defense of the petitioner on the alleged impossibility of positive identification. Hence, the

additional evidence sought to be presented by the defense is not really a newly discovered
evidence as contemplated by law and therefore will not change the result of the case.

witness Annabella Tam testified that the nearest the four (4) assailants came close to their
motorcycle was about five (5) meters.[45]

The judge who penned the assailed decision was not the only one who heard and received the
evidence presented by the parties. The case was heard by two (2) judges, namely, Judge
Melchor C. Arboleda, in whose court the Information was filed and who heard the testimonies
of three (3) out of the four (4) prosecution witnesses while Judge Jose P. Burgos heard the
case from the cross-examination of the third prosecution witness onward. This fact, however,
does not diminish the veracity and correctness of the factual findings of the trial court. In any
event, we have gone over the records, including the transcript of stenographic notes, and we
found no reason to disturb the factual findings and conclusion of the trial court.

In other words, prosecution witnesses Nonito and Annabella Tam were consistent in positively
identifying petitioner and Espaa as the assailants. Tam testified, thus:

The findings of the trial court on the credibility of witnesses deserve great weight, given the
clear advantage of a trial judge over an appellate court in the appreciation of testimonial
evidence. This is the rule. The trial court is in the best position to assess the credibility of
witnesses and their testimonies because of its unique opportunity to observe the witnesses,
their demeanor, conduct and attitude on the witness stand. These are the most significant
factors in evaluating the sincerity of witnesses and in unearthing the truth. [34] Although the rule
admits of certain exceptions, none obtains in this case.
Petitioner equates his alleged non-identification with the fact that the victims [35] of the ambush
initially failed to mention the name of their assailants or attackers to the parents-in-law of
Tam[36], the Asturias Police[37], Lucy Dumdum,[38] the Municipal Mayor[39] and Carlomagno Alao.
[40]
Petitioner likewise maintains that Tams testimony as corroborated by his wife, smacks of
fabrication considering that it took him nine (9) days to reveal the names of the assailants to
the National Bureau of Investigation (NBI), where he sought assistance. Petitioner also insists
that the crime scene was dark; thus, it was impossible for Tam and his wife to identify their
attackers.

"FISCAL DELFIN:
"Q
You said that you were ambushed at Barangay San Roque on your
way home from Tubigagmanok. Will you please tell this Honorable Court
what happened actually in that ambush?
"A
While we were going to San Roque I saw two men half naked from
the waist up sitting on a sack of copra along the road on the right towards
the poblacion.
"Q

Aside from those two men, did they have other companions?

"A

It was only afterwards that I saw Elizardo Ditche and Rene Espaa.

"Q

Where did you see them?

"A

Along the road, right side."[46]

"x x x
"FISCAL DELFIN:

But as gleaned from the findings of both the trial court and the Court of Appeals, petitioners
identity as the culprit has been sufficiently established. Tam and his wife could not have been
mistaken in pointing petitioner and the late Espaa as their attackers considering that both
were familiar to them; petitioner Ditche was their Barangay Chairman while Espaa was
earlier charged by Tam for grave threats.
Moreover, the non-disclosure by witnesses to the police officers of the identity of the assailants
immediately after the occurrence of the crime is not entirely against human experience. [41] The
natural reticence of most people to get involved in criminal prosecution against immediate
neighbors, as in this case,[42] is of judicial notice.[43]
Anent petitioners insistance that the alleged darkness of the evening of the ambush obviates
any credible and true identification of the assailants, the records show that when the incident
took place, respondent was not yet even using his motorcycles headlight, [44] hence, it cannot
be said that it was already dark. At any rate, the prosecution witnesses testified that visibility
was fair. If petitioner recognized his intended victims, there was no reason why the survivors
from the ambush could not have also recognized him aside from the fact that prosecution

"Q

What happened when you saw them?

"A
Four (4) meters before I reach the two men, they stood up and fired
at us.
"Q

What did they use in firing?

"A

Revolver, sir.

"Q

When they fired at you were you or any of your companion hit?

"A
I was hit on my right knee and my farm helper was also hit at the
back of his left knee.
"Q

How about this Elizardo Ditche and Rene Eapaa, what did he do?

"A
They also helped in firing at us because ten (10) meters away from
them when I looked back the four (4) of them were shooting at us."[47]

"ATTY. POLGADO
"Q

What was your distance at the time you were first fired upon?

"A

About four (4) meters from the persons

xxx
"Q
You said that during the ambush those persons were half naked up
to the waist who fired at you first. Do you know those persons?
"A

We do not know them.

"Q

How about the two (2) others, do you know them?

"A

Yes, sir.

"Q

What are their names?

"A

Barangay Captain Elizardo Ditche and Rene Espaa.

"Q
Of what side of the road were the persons firing at you that time you
were proceeding to Poblacion, Asturias, Cebu?
"A

"Q

At the right side of the road.

"Q
At that distance of four (4) meters away when the persons first fired
at you, did you recognize the persons who fired at you at that time?
"A
I did not actually saw the persons who fired at us. I was not able to
recognize them.
"Q

You remember how may times you were fired at?

"A

Many times.

"Q

After the first burst of fire at you, what did your husband do, if any?

"A

He continued driving the motor.

Why do you know them?

"A
Because before the ambush I knew already these Elizardo Ditche
and Rene Espaa. This Rene Espaa, I knew him because I even
charged him with grave threats in Asturias."[48]
Witness Annabella Tam gave a more detailed account of the incident in this wise:
"ATTY. POGADO
"Q
What was the unusual incident that took place upon reaching San
Roque, Asturias, Cebu, if any.

"Q
When you told this Court that several shots were fired at you, how
far were you at that time the second firing of shots?
"A

Five (5) or six (6) meters.

"A

We were ambushed.

"Q
At that distance of five (5) or six (6) meters away from the persons
firing at you, you can now recognize the persons who were firing at you?

"Q

How were you ambushed?

"A

Yes, sir. I saw two (2) persons.

"A

By people firing at us using short arms.

"Q

Who were these two (2) persons you were able to identify?

"COURT

"A

They were Elizardo Ditche and Rene Espaa.

"Q

What do you mean short arms?

"Q

The accused in this case?

"A

Revolver, sir.

"A

Yes, sir."[49]

Annabella Rojo Tam was so firm during her cross-examination that she did not falter when the
trial court asked her some clarificatory questions. Rather, her additional declarations served to
strengthen the credibility of her version of the incident:

"Q
As these four persons were not able to overtake you or come near
you, will you tell the honorable court how far were these persons about to
come to you or to be near you in terms of distance?

"COURT TO THE WITNESS

"COURT TO THE WITNESS

"Q
Let us make this clear again. You were passing directly opposite
these two person sitting on the sack when you were directly opposite, you
were fired upon. And this firing and even flashes began, you saw from
these two person you told your husband to speed up, when you speed up,
you look back, and you already saw four persons.

"Q
Let us put it this way, you told your husband to speed up, you
already saw person running after you, were these people running fast?

"A

Yes, your Honor.

"COURT
"Q
In other words, the moment you saw these two persons firing at
you, you did not continuously looked at them?
"A
I looked back and they are continuously firing, so I looked back
again.
"COURT
Continue
"ATTY. FAJARDO
"Q

When you looked back, you saw four persons already?

"A

Yes, sir.

"Q
When you looked back, and saw these four persons they were
about ten (10) meters away from you?
"A

Yes, sir.

"Q
There was no moment at all that any of these four persons were
able to undertake or come near you at a distance of a close distance of
one meter?
"A

None of them.

"A

Yes, they were running fast.

"Q

And you were continuously looking at them running after you?

"A

Yes, your Honor.

"Q
Since they were running fast, was there any moment that anyone of
them came almost near your motorcycle.
"A

Yes, your Honor.

"x x x
"ATTY. FAJARDO
"Q

How close has this accused got themselves to you?

"A
At this juncture, the witness pointed to the second seat (long
bench) in the courtroom which measures five (5) meters."[50]
Considering that the testimonies of the prosecution witnesses were straightforward, consistent
and replete with details,[51] aside from the fact that there is nothing in the record which shows
that the witnesses were moved by any improper motive, the presumption is that the witnesses
were not biased and their testimonies are entitled to full faith and credence.[52]
Finally, We reject the alibi of petitioner that he was in his house at Ginabasan, Tubigagmanok,
Asturias, together with his Secretary, Gilbuena on April 3, 1983, at around 4:00 oclock in the
afternoon, preparing the minutes of the Association of Barangay Council of Asturias.
When averring alibi, two requirements must be strictly met in order that the same may be of
value to the defense, namely, (1) that the accused was not present at the scene of the crime at
the time of its commission, and (2) that it was physically impossible for him to be there at the
time. Without said essential requisites having been established, reliance on alibi, all the more
becomes a liability.[53] Hence, for the defense of alibi to prosper, it is not enough to prove that
accused was somewhere else when the offense was committed; it must likewise be

demonstrated that he was so far away that it was not possible for him to have been physically
present at the place of the crime or its immediate vicinity at the time of its commission.[54]
In this case, as testified to by petitioner himself, he was in his house which is only four (4)
kilometers from the ambush site. Petitioner failed to show that it was physically impossible for
him to be present at the place of the commission of the offense, and so we perforce apply the
well settled doctrine that alibi is inherently a weak defense which should be rejected where the
accused was positively identified by an eyewitness to the commission of the offense.

Before us is a Petition for Review assailing the March 31, 1995 Decision of the Court of
Appeals[1] (CA) in CA-GR SP No. 34240, which affirmed the December 24, 1993 Decision [2] of
the Court of Tax Appeals (CTA). The CA disposed as follows:
"WHEREFORE, foregoing premises considered, the petition is hereby
DISMISSED for lack of merit."[3]
On the other hand, the dispositive portion of the CTA Decision affirmed by the CA reads as
follows:

Manifest in the attack employed by the offenders was treachery. Article 14, (16) of the Revised
Penal Code provides that treachery is committed when the offender employs means or
methods in the execution of the crime which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.
From the testimonies of the prosecution witnesses, it was clear that petitioner and his cohorts
deliberately waited for Tam and his group ready to spray them with bullets. All the four (4)
attackers were armed while the victims were not. The attack was undisputedly sudden and
unexpected. This suddenness and unexpectedness of the assault without the slightest
provocation on the part of the persons attacked, is the essence of treachery.[55]

"WHEREFORE, in [view of] all the foregoing, Petitioners claim for refund
is hereby DENIED and this Petition for Review is DISMISSED for lack of
merit."[4]
Also assailed is the November 8, 1995 CA Resolution[5] denying reconsideration.
The Facts
The facts of this case were summarized by the CA in this wise:

In the light of these considerations, we find no reason to reverse or modify the ruling of the
Court of Appeals. The Court of Appeals correctly convicted petitioner Ditche, his guilt having
been proven beyond reasonable doubt, more particularly for attempted murder inasmuch the
injury sustained by the victim, Nonito Tam, was not of such serious nature as would have
produced death.
WHEREFORE, the appeal is hereby DENIED and the assailed Decision of the Court of
Appeals is hereby AFFIRMED. Costs against the petitioner.
[G.R. No. 122480. April 12, 2000]
BPI-FAMILY SAVINGS BANK, Inc., petitioner, vs. COURT OF APPEALS, COURT OF TAX
APPEALS and the COMMISSIONER OF INTERNAL REVENUE, respondents.
DECISION

"This case involves a claim for tax refund in the amount of P112,491.00
representing petitioners tax withheld for the year 1989.
In its Corporate Annual Income Tax Return for the year 1989, the following
items are reflected:
Income.............................P1,017,931,831.00
Deductions........................P1,026,218,791.00
Net
Income
(Loss).................(P8,286,960.00)
Taxable Income (Loss).............P8,286,960.00
Less:

PANGANIBAN, J.:
If the State expects its taxpayers to observe fairness and honesty in paying their taxes, so
must it apply the same standard against itself in refunding excess payments. When it is
undisputed that a taxpayer is entitled to a refund, the State should not invoke technicalities to
keep money not belonging to it. No one, not even the State, should enrich oneself at the
expense of another.

The Case

1988
Tax
Credit...............P185,001.00
1989 Tax Credit...............P112,491.00
TOTAL
REFUNDABLE

AMOUNT......................P297,492.00

"It appears from the foregoing 1989 Income Tax Return that petitioner had
a total refundable amount of P297,492 inclusive of the P112,491.00 being
claimed as tax refund in the present case. However, petitioner declared in
the same 1989 Income Tax Return that the said total refundable amount
of P297,492.00 will be applied as tax credit to the succeeding taxable
year.

"On October 11, 1990, petitioner filed a written claim for refund in the
amount of P112,491.00 with the respondent Commissioner of Internal
Revenue alleging that it did not apply the 1989 refundable amount of
P297,492.00 (including P112,491.00) to its 1990 Annual Income Tax
Return or other tax liabilities due to the alleged business losses it incurred
for the same year.
"Without waiting for respondent Commissioner of Internal Revenue to act
on the claim for refund, petitioner filed a petition for review with
respondent Court of Tax Appeals, seeking the refund of the amount
of P112,491.00.
"The respondent Court of Tax Appeals dismissed petitioners petition on
the ground that petitioner failed to present as evidence its Corporate
Annual Income Tax Return for 1990 to establish the fact that petitioner
had not yet credited the amount of P297,492.00 (inclusive of the amount
P112,491.00 which is the subject of the present controversy) to its 1990
income tax liability.
"Petitioner filed a motion for reconsideration, however, the same was
denied by respondent court in its Resolution dated May 6, 1994."[6]
As earlier noted, the CA affirmed the CTA. Hence, this Petition.[7]
Ruling of the Court of Appeals
In affirming the CTA, the Court of Appeals ruled as follows:
"It is incumbent upon the petitioner to show proof that it has not credited
to its 1990 Annual income Tax Return, the amount of P297,492.00
(including P112,491.00), so as to refute its previous declaration in the
1989 Income Tax Return that the said amount will be applied as a tax
credit in the succeeding year of 1990. Having failed to submit such
requirement, there is no basis to grant the claim for refund. x x x
"Tax refunds are in the nature of tax exemptions. As such, they are
regarded as in derogation of sovereign authority and to be
construed strictissimi juris against the person or entity claiming the
exemption. In other words, the burden of proof rests upon the taxpayer to
establish by sufficient and competent evidence its entitlement to the claim
for refund."[8]
Issue
In their Memorandum, respondents identify the issue in this wise:

"The sole issue to be resolved is whether or not petitioner is entitled to the

refund of P112,491.00, representing excess creditable withholding tax
paid for the taxable year 1989."[9]
The Courts Ruling
The Petition is meritorious.
Main Issue: Petitioner Entitled to Refund
It is undisputed that petitioner had excess withholding taxes for the year 1989 and was thus
entitled to a refund amounting to P112,491. Pursuant to Section 69 [10] of the 1986 Tax Code
which states that a corporation entitled to a refund may opt either (1) to obtain such refund or
(2) to credit said amount for the succeeding taxable year, petitioner indicated in its 1989
Income Tax Return that it would apply the said amount as a tax credit for the succeeding
taxable year, 1990. Subsequently, petitioner informed the Bureau of Internal Revenue (BIR)
that it would claim the amount as a tax refund, instead of applying it as a tax credit. When no
action from the BIR was forthcoming, petitioner filed its claim with the Court of Tax Appeals.
The CTA and the CA, however, denied the claim for tax refund. Since petitioner declared in its
1989 Income Tax Return that it would apply the excess withholding tax as a tax credit for the
following year, the Tax Court held that petitioner was presumed to have done so. The CTA and
the CA ruled that petitioner failed to overcome this presumption because it did not present its
1990 Return, which would have shown that the amount in dispute was not applied as a tax
credit. Hence, the CA concluded that petitioner was not entitled to a tax refund.
We disagree with the Court of Appeals. As a rule, the factual findings of the appellate court are
binding on this Court. This rule, however, does not apply where, inter alia, the judgment is
premised on a misapprehension of facts, or when the appellate court failed to notice certain
relevant facts which if considered would justify a different conclusion. [11] This case is one such
exception.
In the first place, petitioner presented evidence to prove its claim that it did not apply the
amount as a tax credit. During the trial before the CTA, Ms. Yolanda Esmundo, the manager of
petitioners accounting department, testified to this fact. It likewise presented its claim for
refund and a certification issued by Mr. Gil Lopez, petitioners vice-president, stating that the
amount of P112,491 "has not been and/or will not be automatically credited/offset against any
succeeding quarters income tax liabilities for the rest of the calendar year ending December
31, 1990." Also presented were the quarterly returns for the first two quarters of 1990.
The Bureau of Internal Revenue, for its part, failed to controvert petitioners claim. In fact, it
presented no evidence at all. Because it ought to know the tax records of all taxpayers, the
CIR could have easily disproved petitioners claim. To repeat, it did not do so.
More important, a copy of the Final Adjustment Return for 1990 was attached to petitioners
Motion for Reconsideration filed before the CTA. [12] A final adjustment return shows whether a
corporation incurred a loss or gained a profit during the taxable year. In this case, that Return

clearly showed that petitioner incurred P52,480,173 as net loss in 1990. Clearly, it could not
have applied the amount in dispute as a tax credit.
Again, the BIR did not controvert the veracity of the said return. It did not even file an
opposition to petitioners Motion and the 1990 Final Adjustment Return attached thereto. In
denying the Motion for Reconsideration, however, the CTA ignored the said Return. In the
same vein, the CA did not pass upon that significant document.
True, strict procedural rules generally frown upon the submission of the Return after the trial.
The law creating the Court of Tax Appeals, however, specifically provides that proceedings
before it "shall not be governed strictly by the technical rules of evidence." [13] The paramount
consideration remains the ascertainment of truth. Verily, the quest for orderly presentation of
issues is not an absolute. It should not bar courts from considering undisputed facts to arrive
at a just determination of a controversy.
In the present case, the Return attached to the Motion for Reconsideration clearly showed that
petitioner suffered a net loss in 1990. Contrary to the holding of the CA and the CTA, petitioner
could not have applied the amount as a tax credit. In failing to consider the said Return, as
well as the other documentary evidence presented during the trial, the appellate court
committed a reversible error.
It should be stressed that the rationale of the rules of procedure is to secure a just
determination of every action. They are tools designed to facilitate the attainment of justice.
[14]
But there can be no just determination of the present action if we ignore, on grounds of
strict technicality, the Return submitted before the CTA and even before this Court. [15] To
repeat, the undisputed fact is that petitioner suffered a net loss in 1990; accordingly, it incurred
no tax liability to which the tax credit could be applied. Consequently, there is no reason for the
BIR and this Court to withhold the tax refund which rightfully belongs to the petitioner.
Public respondents maintain that what was attached to petitioners Motion for Reconsideration
was not the final adjustment Return, but petitioners first two quarterly returns for 1990. [16] This
allegation is wrong. An examination of the records shows that the 1990 Final Adjustment
Return was attached to the Motion for Reconsideration. On the other hand, the two quarterly
returns for 1990 mentioned by respondent were in fact attached to the Petition for Review filed
before the CTA. Indeed, to rebut respondents specific contention, petitioner submitted before
us its Surrejoinder, to which was attached the Motion for Reconsideration and Exhibit "A"
thereof, the Final Adjustment Return for 1990.[17]
CTA Case No. 4897
Petitioner also calls the attention of this Court, as it had done before the CTA, to a Decision
rendered by the Tax Court in CTA Case No. 4897, involving its claim for refund for the year
1990. In that case, the Tax Court held that "petitioner suffered a net loss for the taxable year
1990 x x x."[18] Respondent, however, urges this Court not to take judicial notice of the said
case.[19]

As a rule, "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 the fact that both cases may have been heard or are actually pending before
the same judge."[20]
Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters
ought to be known to judges because of their judicial functions. In this case, the Court notes
that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for Review filed
before this Court. Significantly, respondents do not claim at all that the said Decision was
fraudulent or nonexistent. Indeed, they do not even dispute the contents of the said Decision,
claiming merely that the Court cannot take judicial notice thereof.
To our mind, respondents reasoning underscores the weakness of their case. For if they had
really believed that petitioner is not entitled to a tax refund, they could have easily proved that
it did not suffer any loss in 1990. Indeed, it is noteworthy that respondents opted not to assail
the fact appearing therein -- that petitioner suffered a net loss in 1990 in the same way that
it refused to controvert the same factestablished by petitioners other documentary exhibits.
In any event, the Decision in CTA Case No. 4897 is not the sole basis of petitioners case. It is
merely one more bit of information showing the stark truth: petitioner did not use its 1989
refund to pay its taxes for 1990.
Finally, respondents argue that tax refunds are in the nature of tax exemptions and are to be
construed strictissimi juris against the claimant. Under the facts of this case, we hold that
petitioner has established its claim. Petitioner may have failed to strictly comply with the rules
of procedure; it may have even been negligent. These circumstances, however, should not
compel the Court to disregard this cold, undisputed fact: that petitioner suffered a net loss in
1990, and that it could not have applied the amount claimed as tax credits.
Substantial justice, equity and fair play are on the side of petitioner. Technicalities and
legalisms, however exalted, should not be misused by the government to keep money not
belonging to it and thereby enrich itself at the expense of its law-abiding citizens. If the State
expects its taxpayers to observe fairness and honesty in paying their taxes, so must it apply
the same standard against itself in refunding excess payments of such taxes. Indeed, the
State must lead by its own example of honor, dignity and uprightness.
WHEREFORE, the Petition is hereby GRANTED and the assailed Decision and Resolution of
the Court of Appeals REVERSED and SET ASIDE. The Commissioner of Internal Revenue is
ordered to refund to petitioner the amount of P112,491 as excess creditable taxes paid in
1989. No costs.
[G.R. No. 121099. February 17, 1999]
FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION, respondent.
DECISION

PARDO, J.:
The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan and
its resolution convicting him of malversation of public property defined and penalized in Article 217 in
relation to Article 222 of the Revised Penal Code, and appreciating the mitigating circumstance of full
restitution, imposing upon him the indeterminate sentence of two (2) years four (4) months and one (1)
day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as
maximum; the penalty of perpetual special disqualification, and a fine of P5,000.00, the value of the .
38 Cal. Smith & Wesson Revolver, with Serial No. 879886.
We reverse.
The facts may be related as follows:

acknowledging that petitioner had paid the value of the gun, and withdrawing the administrative case
and the criminal case he filed against petitioner with the Ombudsman.
On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the
administrative case against petitioner.
On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer Prospero
G. Pelayo of an information against petitioner for malversation of public funds, which was duly filed on
March 12, 1992, with the Sandiganbayan, Manila.
On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992, petitioner
posted a cash bail of P20,000.00, which he deposited with the provincial treasurer of Aurora, duly
approved by Regional Trial Court Judge Filemon N. Tan of Baler, Aurora.[2]

On February 2, 1988, petitioner was elected to and assumed the position of mayor of the
municipality of Casiguran, province of Aurora.

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner entered a
plea of not guilty, and accordingly, the court scheduled the case for pre-trial conference.

Later that month, he received from Casiguran Barangay Captain [1] Antonio Benavidez one .38
Caliber Smith & Wesson Revolver, with Serial No. 879886. The gun was owned by and licensed to
Ponciano Benavidez, an uncle of Antonio, who mortgaged it to him. Petitioner placed the gun in an
attache case.

Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in Camp
Karingal, Quezon City. The latter said that he returned the gun to Patrolman Orgas, one of petitioner's
security men on the very next day after he had confiscated it. Unfortunately, Pat. Orgas did not inform
petitioner about the recovery of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas
had died.

After about a week, petitioner together with his security men, went to Manila, and brought with
them the attache case with the gun in it. On their return to the province, their car was stopped at a spot
checkpoint in Quezon City, where Pat. Alfredo B. Villanueva of the Quezon City Police saw the
revolver. On petitioners instruction, his security men surrendered the gun to police officer Villanueva.
Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun
claimed it from petitioner. The latter informed Ponciano that the gun was confiscated by the Quezon
City Police.
On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor of
Aurora a complaint for theft against petitioner and Antonio Benavidez.
On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government, an
administrative complaint against petitioner for abuse of authority, ignorance of the law and conduct
unbecoming of a public servant.

At the pre-trial conference held on August 28, 1992, the prosecution and the accused (petitioner
herein) assisted by counsel de parte, entered into a stipulation of facts signed by them, as follows:
1. At all times relevant to this case, the accused was the Mayor of the Municipality of
Casiguran, Aurora;
2. That in the exercise of his functions as Mayor, the accused had the occasion to
confiscate one .38 caliber Smith & Wesson revolver with Serial No. 879886 from
Barangay Captain Antonio Benavidez;
3. This weapon was actually owned by Ponciano Benavidez, the value of which the parties
have not agreed upon;
4. That the accused confiscated this weapon in the performance of his official functions
and was, therefore, in custody thereof in his capacity as such;

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.
On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against petitioner
with the Office of the Ombudsman in Manila.
On August 21, 1990, during the investigation of the administrative case by the Sangguniang
Panlalawigan of Aurora, complainant Ponciano Benavidez executed an affidavit of desistance

5. That demand was made from the accused by Ponciano Benavidez sometime in June of
1988 to produce the above-mentioned firearm but the accused failed to do so;
6. That at a subsequent time, the accused and Ponciano Benavidez went to the offices of
the Quezon City Police Department in search of this weapon;

7. That there has been restitution of the value of the firearm by the accused to the
complaining witness Ponciano Benavidez although there is disagreement as to the
amount of the restitution;
8. That the following affidavits were executed:

Exhibit 7 - the Resolution of the Investigating Fiscal for the Ombudsman dated February 24, 1992,
which is marked as Annex 7 to the Supplemental Affidavit;
Exhibit 8 - the Resolution of the Ombudsman, which is marked as Annex 8 to the Supplemental
Affidavit;

a. By complaining witness Ponciano Benavidez indicating his desistance from further

prosecution thereof for reasons stated therein;

Exhibit 9 - a copy of the Order of Arrest issued by the Sandiganbayan, marked as Annex 9 to the
Supplemental Affidavit;

b. By
Alfredo
Villanueva
of
the
Quezon
City
Police
Department purporting to describe the circumstances under which he allegedly
confiscated the weapon in question from the accused Mayor.

Exhibit 10 - the payment of the Bond for the provisional release of the accused, marked as Annex
10 to the Supplemental Affidavit;

Further to the above stipulations, the Government now marks the following exhibit which is
admitted by the accused:

Exhibit 11 - the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and a certain
Angelito Salamera stating that they were present when payment was made for the gun to the owner,
which is marked as Annex "11 to the Supplemental Affidavit;

Exhibit A - a xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas Katigbak
of the Firearm and Explosives Unit, to Ponciano Benavidez involving .38 caliber Smith & Wesson
revolver with SN 879886.

Exhibit 12 - the Affidavit executed by Alfonso Villanueva dated August 14, 1992, wherein he
admitted that he had confiscated the gun at a checkpoint in Quezon City, which is marked as Annex
12 to the Supplemental Affidavit;

The accused for his part has marked the following exhibits:
Exhibit 1 - The Order of the Fiscal dated January 20, 1989, dismissing the charge of Theft, which is
Annex 1 to the Supplemental Affidavit;
Exhibit 2 - The administrative complaint filed by the complaining witness dated December 13, 1988,
which is Annex 2 to the Supplemental Affidavit;
Exhibit 3 - The Complaint for the filing of the case before the Ombudsman on April 6, 1989, which is
Annex 3 to the Supplemental Affidavit;
Exhibit 4 - The investigation before the Sangguniang Panlalawigan dated August 21, 1990 at Baler,
Aurora, wherein the owner of the gun submitted his affidavit of desistance and admitting therein that he
was paid for the loss of the gun, which is Annex 4 to the Supplemental Affidavit;
Exhibit 5 - the Affidavit of Desistance executed by the owner of the gun dated August 21, 1990,
marked as Annex 5 to the Supplemental Affidavit, wherein the owner of the gun admitted that he
verified the loss of the gun to be true and also admitted that the equivalent amount in cash and in kind
for the .38 caliber revolver was paid to him, for which he promised to dismiss the criminal case and the
administrative case.

Exhibit 13 - the Affidavit executed by Antonio Benavidez dated July 30, 1989, which is marked as
Annex 13 to the Supplemental Affidavit.
On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A" [3] and upon the
admission thereof, rested its case.
On the other hand, the defense presented two (2) witnesses including petitioner.
After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten (10)
days to formally offer his evidence in writing. In time, the defense formally offered its exhibits, and on
September 6, 1993, the court admitted all exhibits except Exhibits 11 and 13, which were rejected for
being hearsay.
On February 17, 1995, more than a year after the case was submitted for decision, the
Sandiganbayan promulgated its decision, the decretal portion of which is narrated in the opening
paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the decision; however, on July
5, 1995, the Sandiganbayan denied the motion.
Hence, this appeal.

Exhibit 6 - the Minutes of the Sangguniang Panlalawigan of Aurora dated August 22, 1990, which
decided to dismiss the administrative case, which is marked as Annex 6 to the Supplemental
Affidavit;

On October 4, 1995, the Court required respondent to file its comment on the petition. On
January 4, 1996, the Office of the Special Prosecutor filed its comment on the petition for review. On
January 30, 1996, the Solicitor General also filed his comment.

We give due course to the petition.

To begin with, petitioner is charged with malversation under Article 217 in relation to Article 222
of the Revised Penal Code, providing as follows:
Article 217. Malversation of public funds or property--Presumption of malversation. - Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation of malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in
the misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more
than 200 pesos but does not exceed 6,000 pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period,
if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.
4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses. (As amended by Rep. Act No. 1060, approved June 12,
1954).
Article 222. Officers included in the preceding provisions. The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any administrator or depository of funds or property
attached, seized or deposited by public authority, even if such property belongs to a private individual.
One essential element of the crime of malversation is that a public officer must take public funds,
money or property, and misappropriate it to his own private use or benefit. There must be asportation of
public funds or property, akin to the taking of another's property in theft. The funds, money or property
taken must be public funds or private funds impressed with public attributes or character for which the
public officer is accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson
revolver, to petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to

the mayor. The gun was duly licensed. It was not seized or confiscated. Antonio obtained possession
of the gun from Ponciano Benavidez, an uncle of his, who was the owner and licensee of the
gun. Ponciano mortgaged it to Antonio.
The elements of malversation, essential for the conviction of an accused, under the above penal
provisions are that
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by reason of the duties of his office;
(c) the funds or property involved are public funds or property for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or
negligence permitted, the taking by another person of, such funds or property. [4]
The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun
with public character sufficient to consider the gun as public property for which the mayor is
accountable? We believe not. There was no reason to surrender or confiscate the gun. It was duly
licensed to Ponciano Benavidez. The license is not transferable. Antonio could not validly possess the
gun. He should have returned the gun to Ponciano, the licensed owner or surrendered it to the local
police or to the Constabulary Provincial Commander. By turning over the gun to petitioner mayor, the
gun did not become public property because it was not intended for public use or purpose nor was it
lawfully seized. The gun continued to be private property, that is why the gun owner rightfully asked
for its return to him, not to be turned over to the public coffer or treasury. Petitioner's failure to return
the gun after demand by the private owner did not constitute a prima facie evidence of
malversation. The property was private and the one who demanded its return was a private person, not
a person in authority. The presumption of conversion will not apply.
A respected author in Criminal Law wrote Malversation can only be committed by a public
official who has charge of public funds or property by virtue of his official position. A public official
not responsible for public funds or property and without authority to safeguard the same can not be
convicted of malversation.[5]
What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The
policeman should have turned over the confiscated gun to the Constabulary Firearm and Explosive Unit,
in Camp Crame, Quezon City. Instead, he returned the gun to a security aide of petitioner mayor, as a
favor to the mayor. The security aide died in the meantime, and, apparently, the gun got
lost. Assuming that the loss was due to petitioner's fault or negligence, he is not criminally liable for
malversation through negligence because there was no evidence of conversion of public funds or
property to the use or benefit of the accused. The legal presumption of malversation created by a
demand for restitution of public funds or property is not applicable because the gun was private
property and a public officer entitled to its possession did not make the demand for its return.
The presumption takes the place of affirmative proofs showing the actual conversion. It
obviates the necessity of proving acts of conversion; a thing most extremely difficult to do. If in a
particular case a demand was made upon an accountable public official to produce the funds in his

custody and he failed to do so, the presumption thereby arising would render unnecessary further proof
of conversion. The disappearance of public funds in the hands of the accountable public officer
is prima facie evidence of its conversion.[6] Here, there is no presumption of conversion nor evidence
of actual conversion.
Nevertheless, petitioner made restitution of the value of the gun to the private owner, Ponciano
Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence submitted to the court of the value of the
gun to enable the court to fix the penalty to be imposed on the accused. Assuming that petitioner
malversed the gun, in malversation, the penalty for the offense is dependent on the value of the public
funds, money or property malversed. In this case, the Sandiganbayan did not base the penalty on the
minimum value of the gun in the absence of evidence of its true worth. It took judicial notice of its
market value and estimated its "reasonable value" at P5,000.00. This is a grievous error.
The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved
in evidence as a fact. The court can not take judicial notice of a disputed fact. The court may take
judicial notice of matters of public knowledge, or which are capable of unquestionable demonstration,
or ought to be known to judges because of their judicial functions. [7] Otherwise, the court must receive
evidence of disputed facts with notice to the parties. [8]This is an innovation introduced in the Revised
Rules of Evidence the Supreme Court adopted on July 1, 1989, which should not be unknown to the
lower courts.[9] The new rule of evidence governs this case, since it was decided in 1995, six years after
its effectivity.

On March 12, 1996, at about 11:00 oclock in the Municipality of San Pedro, Province of
Laguna, Antonio Marcos (MARCOS), Sonny Caranzo (CARANZO), Pepito Tejero (TEJERO) and
Edgar del Monte (DEL MONTE) armed with handguns entered the residence of Arnold and Aileen
Orodio through the back door which was left open by Anthony Abino after answering a call of
nature. The four men ransacked the house taking with them cash and jewelry. Thereafter, MARCOS
and CARANZO proceeded to the residence of Magdalena Ventura located within the same compound as
the house of the Orodios and robbed Magdalena and Arnold taking cash and jewelry belonging to
Arnold, Magdalena and the Orodio Junk Shop. On occasion of the robbery, CARANZO and MARCOS
raped Magdalena. Aileen, Arnold and Magdalena were then brought to the other house, tied and herded
into the masters bedroom where TEJERO and DEL MONTE were guarding Anthony Abino, Salvador
Castillo, Celia Villanueva, Joselito Ibana and May An Sevilla. All the accused then left using the Elf
van of the victims as a getaway vehicle.
The accused-appellant was charged with the crime of Robbery with Rape in an information [2] that
reads:
That on or about 11:00 oclock in the evening of March 12, 1996, in the Municipality of San Pedro,
Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the abovenamed
accused, armed with handguns, with intent to gain, conspiring, collaborating, confederating and
mutually helping one another with the use of violence and intimidation or against persons did then and
there willfully, unlawfully and feloniously take, steal and carry away the following items, to wit:
1.)
Jewelries and Cash belonging to Magdalena Ventura in the aggregate amount of TWO
HUNDRED FIVE THOUSAND (P205,000.00) PESOS;
2.)
Jewelries and Cash belonging to Arnold Orodio in the aggregate amount of SEVENTEEN
THOUSAND (P17,000.00) PESOS;

WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the
Sandiganbayan in its Criminal Case No. 17563, and ACQUITS the accused Fidel Salamera y Torres,
with costs de oficio.

3.)
Cash belonging to Orodio Junk Shop owned by Vicente Orodio in the amount of EIGHTY FIVE
THOUSAND (P85,000.00) PESOS

The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and
immediately reimburse the amount to him.

and on occasion of the said robbery, the accused Antonio Marcos and Sonny Carranzo, by use of force,
violence and intimidation and while conveniently armed with handguns did then and there, one after
another, willfully, unlawfully and feloniously had carnal knowledge of Magdalena Ventura against the
latters will, to the damage and prejudice of the offended party.

[G.R. No. 128892. June 21, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEPITO TEJERO Y CARANZO,
ANTONIO MARCOS Y OBO, EDGAR DEL MONTE Y ALEYA, SONNY CARANZO, JOHN
DOE AND PETER DOE, accused,
ANTONIO MARCOS Y OBO, accused-appellant.
DECISION
PER CURIAM:
For automatic review is the Decision[1] dated March 13, 1997 of the Regional Trial Court of San
Pedro, Laguna, Branch 31 in Criminal Case No. 0320-SPL finding the accused-appellant Antonio
Marcos Y Obo guilty beyond reasonable doubt of the crime of Robbery with Rape and sentencing him
to suffer the penalty of death and to indemnify the victims in the sum of P50,000 as civil
indemnity; P100,000 as moral damages; the sums of P205,000, P17,000 and P85,000 representing the
cash, jewelry and other valuables taken from the victims; and to pay the costs of the suit.

CONTRARY TO LAW.
The accused, with the exception of CARANZO who is still at large, pleaded not guilty to the
crime charged upon arraignment.
The prosecution presented four witnesses: Aileen Orodio, Arnold Orodio, Magdalena Ventura,
and Dr. Maximo Reyes.
Aileen Orodio testified that on March 12, 1996, she arrived at her house located at Adelina II-A,
San Pedro, Laguna at around 11:00 p.m. from Makati together with her husband, Arnold, Salvador
Castillo, and Anthony (Jun-jun) Abino. As the house was locked, Anthony and Arnold went to the
office of the junk shop located within the same compound to get the keys of the house. While waiting
for the keys, Celia Villanueva, Arnolds cousin, woke up and opened the door to let them
inside. Arnold, however, was still in the office of the junk shop. Jun-jun then went out of the house to
urinate leaving the back door of the house open. After Jun-jun returned, four (4) armed men, including
accused MARCOS whom she identified in court, followed him and entered the house. She was eating
on the dining table when one of the armed men pointed a gun at her while the other three stood beside
her and told her not to make any noise. Salvador Castillo ran to the other room to try and get help but

two of the men were able to run after him; mauled him and hit him with a gun on the head. After
mauling him, Anthony Abino, Salvador Castillo, Celia Villanueva and the son of their driver were tied
and herded into the masters bedroom. The four men then ransacked the house taking a total
of P45,000.00 including her and Celias jewelry valued at P7,000.00 and Celias cash amounting
to P5,000.00 as well as her own money amounting to P500.00. She was then brought to the office by
MARCOS and another man whom she named as CARANZO; she informed them that there was money
there after being asked for more money. The office is located in a one-story building with two rooms;
one room serves as the office while the other serves as the residence of Magdalena, the aunt of her
husband. When they were outside the office, MARCOS poked his gun at Arnold and ordered him and
Aileen to enter the office where CARANZO had entered and was pointing his gun at
Magdalena. Inside, MARCOS and CARANZO ransacked the office and took money in an
undetermined amount. CARANZO then took Magdalena inside the adjacent room while MARCOS
remained with her and Arnold after cutting the telephone wire. Although the door to the room was
closed, she heard Magdalena say wag po, wag po. After twenty minutes, CARANZO stepped out of
the room and MARCOS entered. She asked CARANZO what he did but he did not respond. After
twenty minutes, MARCOS stepped out of the room; Magdalena was still inside in a reclined position
with her nightgown folded up to her upper thigh. When Magdalena joined them, she appeared to be in a
state of shock; her nightgown was crumpled. She asked Magdalena what they did to her but she did not
answer. They were then brought to the house where Magdalena and Arnold were tied by MARCOS and
CARANZO and placed in the masters bedroom while the two other men disassembled their
stereo. Thereafter, the men asked for the key of their vehicle. As the key was in the office, she was
again brought there to locate it. They then loaded the Elf van with the things they took from the
house and left. After reporting the incident to the police, an investigation of the incident was conducted
at the San Pedro, Laguna, Police Station where she executed an affidavit which she identified in court. [3]
Arnold Orodio testified that on March 12, 1996 at around 11:00 p.m., he and his aunt,
Magdalena, were in the office located beside the junk shop inside their compound at Adelina II-A, San
Pedro, Laguna, talking about the schedule of the trips of their trucks for the following day. Aileen, who
was nine (9) months pregnant at that time, arrived with two men armed with short firearms. When
inside, one of the armed men poked a gun at him while the other poked a gun at Magdalena. In court,
he identified MARCOS as one of the two armed men. They then took money from the steel cabinet;
Magdalena gave them the key after they asked where the money was. One of the men then took
Magdalena into one of the rooms while the other man remained in the living room guarding him and
Aileen after cutting the telephone wire. He did not hear anything coming from the room where
Magdalena was. The man guarding them then took his wristwatch, ring and some cash. After about
twenty minutes, the man with Magdalena stepped out of the room; he showed them the jewelry he took
from Magdalena and asked them if the jewelry was genuine. During this time, the other man entered
the room where Magdalena was and came out twenty minutes later. He, Aileen and Magdalena were
then brought to the masters bedroom which was being guarded by two other armed men, TEJERO and
DEL MONTE, whom he identified in court. He and Magdalena were tied and left in the masters
bedroom with Celia Villanueva, Jun-jun Abino, Salvador Castillo and Lito Ibana who were also
tied. Aileen then accompanied the men to the office of the junk shop to get the key of the Elf van
which was used as their getaway vehicle.
On cross-examination, Arnold testified that he was able to identify MARCOS and CARANZO
because they removed the cloth covering their faces when they entered the office and that DEL
MONTEs and TEJEROs faces were not covered when he saw them in the masters bedroom. He also
stated that his necklace was worth P2,000.00, his ring, P3,500.00 and his wristwatch, P1,500.00.[4]
Magdalena Ventura testified that on March 12, 1996 at around 11:00 p.m., she was in her
office/residence discussing business matters with Arnold. Aileen arrived with two men wearing black
jackets. Thinking that Aileen was picking up Arnold, she opened the door to let them in. CARANZO
entered and pointed a gun at her and asked her where the money was. She opened her drawer to let him
get what he wanted but pleaded to him not to harm them. After he took P5,000.00 from her drawer,
CARANZO asked for more money, and so she gave him the key to the filing cabinet; he opened it and
took the money of the junk shop amounting to P80,000.00, her cash of P5,000.00, and her jewelry
amounting to P200,000.00. Afterwards, CARANZO dragged her inside the room despite her telling

him that she was recovering from a spinal operation. CARANZO ordered her to enter so that she would
not get hurt, ransacked the room, took her watch and then told her to lie down and remove her
nightgown and underwear while pointing his gun at her. Thereafter, he told her not to move so that she
would not have a hard time. Then, he placed himself on top of her, bent her knees, pulled her from her
shoulder and removed the buttons and zipper of his pants; he brought out his penis and after several
attempts, was able to insert it into her vagina causing her pain not only in her vagina but also at her
back. He was on top of her for about ten to fifteen minutes, moving his body upward while pulling hers
down. When he was through, he gave her another panty; told her to button her gown and not to tell
anyone what happened. He left the room when MARCOS, whom she identified in court, knocked at the
door shouting alis na tayo dalian mo diyan. MARCOS came in and asked if CARANZO did anything
to her. Since she was in a state of shock, she just nodded. As MARCOS was ready to remove his pants,
she again pleaded huwag po; he replied madali lang ito, huwag ka nang maingay para hindi ka
masaktan. While pointing his gun at her, he ordered her to remove her panty and unbutton her
nightgown but she hesitated so he removed her panty himself; he bent her knees and inserted his penis
into her vagina doing up and down movements. All this time, she protested and cried; she was
exhausted because of the pain on her back and private part. MARCOS and CARANZO then brought
her, Aileen and Arnold to the big house that she noticed was in disarray. Inside, she saw two other
armed men, DEL MONTE and TEJERO whom she identified in court. MARCOS and CARANZO
dragged the three of them into the masters bedroom where she saw Celia Villanueva, Joselito Ibana,
Salvador Castillo, Jun-jun Abino and May An Sevilla tied up. She and Arnold were then tied and left
inside the masters bedroom. CARANZO asked for the key of the Isuzu Elf van and when he was
informed that the key was in the office, he brought Aileen there to get it. After taking the VHS and
cassette tapes of Arnold, the men boarded the van and left. Afterwards, Aileen helped in untying
them. Magdalena also testified that the robbers took cash and personal belongings amounting
to P272,307.00 from her, Aileen, Arnold, Joselito and Celia and P80,000.00 from the junk shop. At
around 1:00 a.m., she reported what happened to CJ Llamas, a friend of hers, hoping that he would help
locate the van which was later recovered at Holiday Hills. Arnold also reported the incident to the
police who later invited them to the police station to identify the men who robbed and raped
Magdalena. At the police station, she identified MARCOS, TEJERO and DEL MONTE, who were
detained, as three of the four malefactors while she identified CARANZO through a picture that was
shown to her.[5] As a consequence of this incident, she was traumatized and had to undergo a
psychological examination for two months, psychiatric therapy for two months, physical therapy for
two and a half months, regular check-ups with her cardiologist, and underwent a genital examination
given by the NBI.[6] She also executed a sworn statement, [7]which she identified in court. She added that
seven months prior to the robbery and rape, she underwent an operation at the Makati Medical Center
for a slipped disc which left part of her body paralyzed.
Dr. Maximo Reyes, a medico-legal officer of the NBI, testified that on March 13, 1996, he
conducted a medico-genital and physical examination on Magdalena. Although he did not find any
external signs of violence on her body, he noted that the vestibule or outside lining of her hymen had a
congestion or inflammation/reddening as a result of a long, superficial and fresh abrasion that was not
more than twenty-four hours old. Under the normal course of events, only a fully erect penis is capable
of producing such a laceration or trauma to the genitalia. He also found that her hymen remained intact
and that there was no sperm found in her private organ nor in her cervix. [8]
For their part, the defense presented three witnesses: Antonio Marcos, Pepito Tejero and Edgar
del Monte.
All three denied their participation in the robbery.
MARCOS, a resident of Block 4, Lot 3, Barangay Riverside, San Pedro, Laguna, denied that he
robbed Magdalena, Arnold and the Orodio Junk Shop on March 12, 1996. He alleged that at around
11:00 p.m. of said date, he was asleep in his house together with his wife and three children. He also
denied raping Magdalena. He further stated that he only met TEJERO inside the jail of the San Pedro
Police station while he had previously seen CARANZO inside the cockpit but was only introduced to
him when CARANZO transferred to Barangay Riverside.[9]

TEJERO, a resident of Barangay Nueva, San Pedro, Laguna, also denied that he robbed the
complainants. He claims that he was sleeping at around 11:00 p.m. of March 12, 1996 and woke up at
7:00 a.m. the next day. He sold abaca for a living and received P1,000.00 a month with free board and
lodging from his employer and his highest educational attainment was Grade VI. It was only in court
that he discovered that he was charged with robbery and rape and avers that he does not know why he is
implicated in this case.[10]
DEL MONTE, a resident of 808 Barangay Estrella, San Pedro, Laguna, worked as a houseboy for
Gingging Caviltes two weeks prior to his arrest. He does not know his age; has never attended school;
and does not know how to read nor write. He is unaware of any reason why Police Officer Panganiban
arrested and detained him at the municipal jail of San Pedro, Laguna. He denies robbing the
complainants in this case and claims that up until the time he testified, he had no knowledge of the
charge against him. He further denies knowing any of his co-accused and that he only met MARCOS
and TEJERO inside the jail.[11]
The Regional Trial Court rendered its decision on March 13, 1997, the dispositive portion of
which reads:
IN VIEW THEREOF, the Court finds that the prosecution represented by Assistant Provincial
Prosecutor Melchorito Lomarda has duly established beyond reasonable doubt the guilt of accused
Antonio Marcos y Obo for the crime of robbery with rape and accused Pepito Tejero y Caranzo and
Edgar del Monte y Aleya for the crime of simple robbery with both crimes defined and penalized in
Article 294, Revised Penal Code, as amended by Sec. 9, RA 7659. Their commission of the crime was
attended by the aggravating circumstances of dwelling and band without any mitigating circumstance.
WHEREFORE, the Court hereby sentences:

The case is now before this court on automatic review insofar as it concerns the imposition of the
death penalty on Antonio Marcos.
Accused-appellant assails the decision of the trial court and claims that the prosecution has failed
to prove his guilt beyond reasonable doubt. He admits that his defense of alibi is weak but that the
evidence of the prosecution must be able to stand by itself in order to convict him. He posits his
acquittal on four arguments to wit:
1. Magdalena averred in her sworn statement that a certain DAZZLE, a child of one of
their workers, was in the room with her when she was raped. The non-production of
this corroborative witness without any explanation weakens the testimony of
Magdalena; it would be unnatural that the two men raped her in the presence of
Dazzle; and
2. The failure of Magdalena to shout for help negates the fact of rape. Many persons
resided within the compound and if she had shouted, they would have heard her. No
evidence was presented showing that she was prevented from doing so; and
3. The identification made by Magdalena at the police station was induced by the police
as the accused were not caught in the act of committing the crime for which they were
charged. He cites the Karagdagang Salaysay of Magdalena dated May 15, 1996
where she phrased her answers with the uniform phrase napag-alaman ko na ang
pangalan ay si before mentioning the names of all the accused; and
4. Finally, that there was a defect in the information since it charged six persons with the
commission of the offense when the witnesses only declared that there were four
malefactors.[13]
We resolve to affirm the judgment of conviction.

Accused Antonio Marcos

1. to suffer the death penalty;
2. to pay Magdalena Ventura the sum of P50,000.00 as civil indemnity and another P100,000.00 as
moral damages;
Accused Pepito Tejero and Edgar del Monte
1. to suffer an indeterminate penalty of from imprisonment of four (4) years and two (2) months
of prision correccional as minimum to ten (10) years of prision mayor maximum;
Accused Antonio Marcos, Pepito Tejero and Edgar del Monte
1. jointly and severally to pay Magdalena Ventura, Arnold Orodio and the Orodio Junk Shop
represented by Vicente Orodio the sums of P205,000.00, P17,000.00 and P85,000.00, respectively,
representing the cash, jewelry and other valuables taken from them;

The evidence of the prosecution consisting primarily of the testimonies of the three eyewitnesses
convinces us that the guilt of the accused-appellant has been proven beyond reasonable doubt.
Accused-appellants defense of alibi is the weakest of all defenses for it is easy to contrive and
difficult to prove.[14] A positive identification of the accused made by an eyewitness prevails over such a
defense.[15] In the present case, not one, but three eyewitnesses identified him as one of the robbers.
Moreover, for alibi to prosper as a defense, one must not only prove that he was somewhere else
when the crime was committed but must also show that it was physically impossible for him to have
been at the scene of the crime. [16] We are not convinced that the accused-appellant proved this with his
assertion that he was asleep in his house when the crime occurred. It would not have been physically
impossible for him to be at the crime scene since the crime was committed in San Pedro, Laguna which
is the same municipality where his house is located.
Neither can his denial prevail over the categorical testimony of MAGDALENA that accusedappellant raped her after CARANZO ransacked her room and raped her. It was not alleged or proven
that she was motivated to falsely implicate the accused in the commission of such a heinous crime. The
absence of evidence showing any improper motive on the part of the principal witnesses for the
prosecution strongly tends to sustain the conclusion that no such improper motive exists, and that their
testimonies are worthy of full faith and credit. [17] Accused-appellant himself testified that he cannot
ascribe any motive to the complainants for filing the case against him:

2. to pay the costs of the suit.

ATTY. LIBROJO TO APPELLANT MARCOS

SO ORDERED.

Q: Would you know of any reason why Magdalena Ventura would file a case against you for
robbery with rape?

San Pedro, Laguna, March 13, 1997.[12]

A: I do not know, sir.[18]

Moreover, it is highly improbable that a woman would subject herself to the humiliation of a rape
trial unless the imputation of rape be true.[19]

A.

He was pointing the gun to me telling me to keep quiet.

Q.

You were not able to say anything?

A.

I just kept praying and I was pleading that he should not hurt me.

Q.

As you said that you have just undergone a back operation, that was what you are telling him?

A.

Yes, sir.

Q.

So it took you some time to tell him those things. How much time did you spend to explain to
him that you should not be harmed?

A.

Actually even from the time that he dragged me from the office, I was already telling him.

Q.

To spare you from harm that he intends to do you?

PROSECUTOR LOMARDA TO MAGDALENA VENTURA

A.

Yes, sir.

Q.

When he ordered you to pull out your nightgown and removed your panty, was the second man
already without his pants?

Q.

It did not occur to you to take the gamble of shouting so that help will forthwith come to you?

A.

A.

Not yet, sir.

Q.

Did you obey his command?

With the distance of my house to the place of the other occupants, it would be very impossible
because there were parked vehicles in the garage covering my residence from the other
house.

A.

Yes, sir because he was pointing a gun to me like the other one, sir.

Q.

No amount of shouting would reach the big building even if you shout on top of your voice?

Q.

What happened next, if any?

A.

Yes, sir.[24]

A.

He was the one who pulled my panty because I was hesitant and again he bend my knees and
did the same thing, sir.

Q.

When you said the same thing, what do you men?

A.

He also inserted his penis to my vagina, sir.

Q.

And when he inserted his penis to your vagina, where was his pants?

A.

Pulled down to his knees, sir.

Q.

Was he able to put his penis inside your vagina?

A.

Yes, sir.

Q.

And where was his gun?

A.

The same as the first one, he was pointing the gun on my left temple, sir.

ATTY. AGOSILA TO AILEEN ORODIO

Q.

Did you plead to him?

Q.

After Sonny Carranzo sent out of that room, what else happened?

A.

I did, sir I was pleading to him from the very start when he entered the room and then he said
madali lang ito, huwag ka nang maingay para hindi ka masaktan, sir. [23]

A.

Antonio Marcos entered that same room where my auntie was, sir.

Q.

Where was Sonny Carranzo at that time when Antonio Marcos went inside that room when
Maven Ventura was?

ATTY. LIBROJO TO MAGDALENA VENTURA:

A.

He was with us outside that room, sir.

Q.

You were free then to shout?

Q.

What was he doing with you?

A.

Yes, sir.

A.

He was looking for something in the office, sir.

Q.

You did not shout?

Q.

And for how long did Antonio Marcos stay in that room?

We cannot sustain accused-appellants argument that the prosecution suppressed vital and
material evidence when it failed to present DAZZLE during the trial. The prosecution has discretion to
decide on who to call as witness during trial and its failure to do so did not give rise to the presumption
that evidence willfully suppressed would be adverse if produced [20] since the evidence was merely
corroborative or cumulative and was not proven to be willfully suppressed.[21]
Likewise, accused-appellants claim that Magdalena was not prevented from shouting when she
was allegedly raped deserves scant consideration. The failure of a victim to physically resist does not
negate rape when intimidation is exercised upon the victim and the latter submits herself, against her
will, to the rapists assault because of fear for life and personal safety. [22] In the instant case, the
complainant clearly established how the accused-appellant employed force and intimidation during the
sexual assault as follows:

In her cross-examination, she further explains why she did not shout, to wit:

We are convinced that Magdalena could not have shouted for help even if she wanted to since the
accused-appellant was pointing a gun at her temple while he raped her. We also note that she was
recovering from a spinal operation that limited her movement and that during the time she was raped,
she was aware that Aileen and Arnold were in the adjacent room being guarded at gunpoint by
CARANZO. It is therefore, understandable that she felt that no amount of shouting could save her at
that point.
We find that the testimony of prosecution witness Magdalena established beyond a reasonable
doubt that the accused-appellant committed the crime of robbery with rape. Her testimony is
corroborated by the testimony of Dr. Maximo Reyes who testified on the findings [25] of the medicogenital and physical examination he conducted on Magdalena. He stated in court that the subject had a
trauma or gasgas, not more than twenty four hours old, on the vestibule or outside lining of her hymen
which, under the normal course of events, only a fully erect penis could cause.
In addition, Aileens testimony corroborates not only the charge of robbery but strengthens
Magdalenas accusation of rape:

A.

Also for about twenty (20) minutes, sir.

A.

Yes, maam.

Q.

After 20 minutes what happened?

Q.

Did you go to the police station?

A.

Antonio Marcos and Auntie Maven stepped out of the room, sir.

A.

Yes, maam.

COURT:

Q.

What happened there?

Q.

A.

They showed us the people inside the jail and asked if there are anyone who was the member
of the group who robbed us, maam.

Q.

You mean you were outside the jail but from your place you could see the inmates?

A.

Yes, maam.

Q.

More or less how many were there?

A.

They were many, maam.

Q.

Were you able to point the person who robbed your house?

A.

Yes, maam.

Q.

How many persons?

A.

Three, maam

Q.

Were you able to get their names?

A.

Yes, maam.

Q.

If they or the three were inside the courtroom, will you please point to them?

A.

The other one on the left and the two other on the right, maam.

Will you describe to us the appearance of Magdalena Ventura?

She appeared to be shocked, maam.

Q.

What else?

A.

Her clothes are crumpled, maam.

Q.

How was she dressed that time?

A.

In nightgown, maam.

Q.

Before she went out of that room, were you able to see her outside?

A.

Yes, maam.

Q.

What was her appearance?

A.

Her dress was fold up to her upper thigh, maam.

Q.

On what position?

A.

She was reclining on the bed, maam.[26]

There is no merit in accused-appellants claim that the identification made by Magdalena of the
accused was induced by the police. He premises his argument on a play of words in the phrase napagalaman ko na ang pangalan ay si (I learned that the name is) which she used in her sworn statement
when she identified the accused. The fact that she learned the names of the accused after the incident
will not detract from the fact that she identified MARCOS as the assailant since one need not identify
the accused by name; what is important is that she is positive as to the physical identification of the
accused from her own personal knowledge. At any rate, during her direct examination, she explained
how she identified the accused in the police station as follows:

(Witness again pointing to Antonio Marcos, Pepito Tejero and Edgar Del Monte).
Q.

Did you inquire from the police why these three persons whom you identified as robbers and
who robbed you were inside the jail?

A.

They told us that they were arrested in one of their operations maam.

PROSECUTOR LOMBARDA TO MAGDALENA VENTURA:

Q.

When you said their operation, you are referring to whom?

Q.

You also testified earlier that you were shown some pictures at the police station in fact you
were able to identify Sonny Carranzo, who is still at large, thru his picture, when was that?

A.

Police operation, maam.

A.

In May, 1996, maam.

Q.

You mean aside from your case, these group were arrested in connection with another case, is
that what you mean?

Q.

How did it happen that you saw Sonny Carranzo at the picture at the police station?

A.

Yes, maam that is what they told us.

A.

The police station of San Pedro, Laguna called us and asking us if we could come to identify
of those that were arrested and put to jail so we could at least file our case and identify if
ever they are the one who were involve, maam.

Q.

Did you come to know what particular case where they involved?

A.

No, maam.

Q.

So, in short, the police invited you to go to the police station as they were able to arrest some
suspects?

Q.

Did you not ask the police why they were arrested?

A.

Yes, maam.

A.

They just gave us the copy of the testimony given by the arresting officer, maam.

Q.

And you also said that you were asked to identify some person and tell them if they are the
same person who entered the compound, is that what you mean?

Q.

You said that you were informed that accused were involved with another case, did you come
to know what case is that?

A.

Robbery, maam.[27]

There is nothing in her narration that would support a finding that the identification of the
accused was suggested in any manner to her. On the contrary, her identification was positive, certain
and unequivocal. Besides, two other witnesses, Aileen and Arnold, also positively identified all the
accused at the police station.
Finally, the fact that the fiscal charged six persons in the information when the witnesses only
mentioned four is a defect in the information which could have been cured by an amendment
thereto[28] if brought to the attention of the lower court, and cannot now be raised for the first time on
appeal. Assuming for the sake of argument that said issue was properly raised, we see no reason to fault
the prosecutor for charging six persons in the information. His decision to charge six persons was based
on the sworn statement[29] of Arnold where he stated that they were robbed by six men.
We now come to the imposition of the proper penalty. The crime of robbery with rape is a
special complex crime punishable under Article 294 of the Revised Penal Code as amended by R.A.
7659[30] which reads, insofar as pertinent, as follows:
Art. 294 - Any person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:
1. The penalty of reclusion perpetua to death when by reason or on occasion of the robbery, the crime
of homicide shall have been committed; or when the robbery shall have been accompanied by rape or
intentional mutilation or arson; xxx
In the present case, the aggravating circumstance of band [31] attended the commission of the
crime. All three witnesses testified that the four accused were carrying guns when they committed the
crime. In the crime of robbery with rape, band is an aggravating circumstance.[32]
Moreover, the aggravating circumstance of dwelling was also attendant in the present case since
the robbery was committed in the houses of the victims Aileen, Arnold and Magdalena without
provocation on their part.[33] In robbery with violence and intimidation against persons, dwelling is
aggravating since in this class of robbery, the crime may be committed without the necessity of
trespassing the sanctity of the offended partys house.[34]
Article 63 of the Revised Penal Code states the rule for the application of indivisible penalties. It
provides:
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.
In all cases in which the law prescribes a penalty composed of two indivisible penalties the following
rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance, the greater
penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the
lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the commission of the act, the courts
shall reasonably allow them to offset one another in consideration of their number and importance, for
the purpose of applying the penalty in accordance with the preceding rules, according to the result of
such compensation.
The penalty of reclusion perpetua to death is composed of two indivisible penalties. [35] Applying article
63 of the Revised Penal Code, the penalty that should be imposed is death which is the maximum
provided for by law in the absence of any mitigating circumstance to offset the aggravating
circumstances of dwelling and band. These aggravating circumstances need not be alleged in the
information since they are mere generic aggravating circumstances which have the effect of increasing
the penalty to the maximum period which is death.[36]
We however reduce the award of moral damages to Magdalena Ventura from P100,000.00
to P50,000.00 to conform with current jurisprudence[37]; a conviction for rape carries with it the award of
moral damages to the victim since it is recognized that the victims injury is concomitant with and
necessarily results from the odious crime of rape to warrant per se an award of moral damages.[38]
In addition, the presence of one or more aggravating circumstances justifies the award of
exemplary damages pursuant to Article 2230 of the Civil Code [39] after proof that the offended party is
entitled to moral, temperate and compensatory damages. [40] The amount of P20,000.00 as exemplary
damages is reasonable[41] in view of the presence of the aggravating circumstances of dwelling [42] and
band[43].
Lastly, we modify the order for the reparation of the stolen cash and jewelry. An ordinary
witness cannot establish the value of jewelry[44] and the trial court can only take judicial notice of the
value of goods which are matters of public knowledge or are capable of unquestionable
demonstration[45]. The value of jewelry is not a matter of public knowledge nor is it capable of
unquestionable demonstration and in the absence of receipts or any other competent evidence besides
the self-serving valuation made by the prosecution witnesses, we cannot award the reparation for the
stolen jewelry. The accused-appellant is however ordered to pay Aileen Orodio the amount of P500.00,
Arnold Orodio the amount of P12,000.00, Magdalena Ventura the amount of P5,000.00 and the Orodio
Junk Shop the amount of P80,000.00 representing the amounts of cash stolen from said complainants
respectively. These amounts were established by the prosecution witnesses and were not rebutted by the
defense. Finally, there is no evidence to establish the value of the VHS and the stolen cassette tapes
since no description as to its kind/model was given by the prosecution witnesses.
Four justices of the Court have continued to maintain the unconstitutionality of Republic Act No.
7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to
the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at
bar.
WHEREFORE, the conviction of the accused-appellant is hereby AFFIRMED with the
modification that the award for moral damages is reduced to P50,000.00 and an award of exemplary
damages in the amount ofP20,000.00 is granted. The accused-appellant is further ordered to pay the
amounts of P500.00 to Aileen Orodio, P12,000.00 to Arnold Orodio, P5,000.00 to Magdalena Ventura
and P80,000.00 to the Orodio Junk Shop as reparation for the stolen cash.
Upon finality of this decision, let certified true copies thereof, as well as the records of this case,
be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.
G.R. No. 119641 May 17, 1996
PHILIPPINE AIRLINES, INC., petitioner, vs. COURT OF APPEALS, DR.
JOSEFINO MIRANDA and LUISA MIRANDA, respondents.
REGALADO, J.:p

In this appeal by certiorari, petitioner Philippine Airlines, Inc. (PAL) assails the
decision
of
respondent
Court
of
Appeals
in
CA-G.R.
CV
No.
29147 1 which affirmed the judgment of the trial court finding herein petitioner
liable as follows:
Wherefore, premises considered, judgment is hereby rendered
ordering the defendant, Philippine Airlines or PAL, to pay to the
plaintiffs, Dr. Josefino Miranda and Luisa Miranda, the sum of
P100,000.00 as moral damages; P30,000.00 as exemplary or
corrective damages; P10,000.00 as attorney's fees; and the
costs. 2
The factual antecedents of the present petition reveal that sometime in May, 1988,
Dr. Josefino Miranda and his wife, Luisa, who were residents of Surigao City, went
to the United States of America on a regular flight of Philippine Airlines, Inc. (PAL).
On June 19, 1988, after a stay of over a month there, they obtained confirmed
bookings from PAL's San Francisco Office for PAL Flight PR 101 from San Francisco
to Manila via Honolulu on June 21, 1988; PAL flight PR 851 from Manila to Cebu on
June 24, 1988; and PAL Flight PR 905 from Cebu to Surigao also on June 24, 1988.
Accordingly, on June 21, 1988, private respondents boarded PAL Flight PR 101 in
San Francisco with five (5) pieces of baggage. After a stopover at Honolulu, and
upon arrival in Manila on June 23, 1988, they were told by the PAL personnel that
their baggage consisting of two balikbayan boxes, two pieces of luggage and one
fishing rod case were off-loaded at Honolulu, Hawaii due to weight limitations.
Consequently, private respondents missed their connecting flight from Manila to
Cebu City, as originally scheduled, since they had to wait for their baggage which
arrived the following day, June 24, 1988, after their pre-scheduled connecting
flight had left. They consequently also missed their other scheduled connecting
flight from Cebu City to Surigao City.

be ordered a la carte that they were allowed to do so by PAL provided that they
sign for their orders.
Inasmuch as the shuttle bus had already left by the time private respondents were
ready to go to the hotel, PAL offered them P150.00 to include the fare for the
return trip to the airport. Dr. Miranda asked for P150.00 more as he and his wife,
along with all of their baggage, could not be accommodated in just one taxi, aside
from the need for tipping money for hotel boys. Upon refusal of this simple
request, Dr. Miranda then declared that he would forego the amenities offered by
PAL. Thus, the voucher for P150.00 and the authority for the hotel
accommodations prepared by PAL were voided due to private respondents'
decision not to avail themselves thereof.
To aggravate the muddled situation, when private respondents tried to retrieve
their baggage, they were told this time that the same were loaded on another
earlier PAL flight to Surigao City. Thus, private respondents proceeded to the
hotel sans their baggage and of which they were deprived for the remainder of
their trip. Private respondents were finally able to leave on board the first PAL
flight to Surigao City only on June 26, 1988. Thereafter, they instituted an action
for damages which, after trial as well as on appeal, was decided in their favor.
Petitioner PAL has come to us via the instant petition for review on certiorari,
wherein it challenges the affirmatory decision of respondent Court of Appeals 3 (1)
for applying Articles 2220, 2232 and 2208 of the Civil Code when it sustained the
award of the court a quo for moral and exemplary damages and attorney's fees
despite absence of bad faith on its part; and (2) for not applying the express
provisions of the contract of carriage and pertinent provisions of the Warsaw
Convention limiting its liability to US$20.00 per kilo of baggage.

On June 25, 1988, they departed for Cebu City and therefrom private respondents
had to transfer to PAL Flight 471 for Surigao City. On the way to Surigao City, the
pilot announced that they had to return to Mactan Airport due to some mechanical
problem. While at Mactan Airport, the passengers were provided by PAL with lunch
and were booked for the afternoon flight to Surigao City. However, said flight was
also canceled.

I. Anent the first issue, petitioner argues that there was no bad faith on its part for
while there was admittedly a delay in fulfilling its obligation under the contract of
carriage with respect to the transport of passengers and the delivery of their
baggage, such delay was justified by the paramount consideration of ensuring the
safety of its passengers. It likewise maintains that its employees treated private
respondents fairly and with courtesy to the extent of acceding to most of their
demands in order to mitigate the inconvenience occasioned by the measures
undertaken by the airline to ensure passenger safety. 4

Since there were no more lights for Surigao City that day, private respondents
asked to be billeted at the Cebu Plaza Hotel where they usually stay whenever
they happen to be in Cebu City. They were, however, told by the PAL employees
that they could not be accommodated at said hotel supposedly because it was
fully booked. Contrarily, when Dr. Miranda called the hotel, he was informed that
he and his wife could be accommodated there. Although reluctant at first, PAL
eventually agreed to private respondents' overnight stay at said hotel. Oscar
Jereza, PAL duty manager, approved the corresponding hotel authority with
standard meals. It was only after private respondents' insistence that their meals

It reiterated its position that the off-loading of private respondents' baggage was
due to "weight limitations," as lengthily explained by petitioner from an
aeronautically technical viewpoint, 5 taking into consideration such variable factors
as flight distance, weather, air resistance, runway condition and fuel requirement.
Given the variable weather conditions, it claimed that the weight limitation for
each flight can only be ascertained shortly before take-off. While admittedly there
would be a resulting inconvenience in the accommodations of the passengers and
the handling of their cargo, the same is outweighed by the paramount concern for
the safety of the flight.

Petitioner moreover impugns the Court of Appeal's allegedly improper reliance on

the inaccurate interpretation of the testimony of PAL's baggage service
representative, Edgar Mondejar, * that private respondents' baggage were offloaded to give preference to baggage and/or cargo originating from Honolulu. PAL
argues that Mondejar's knowledge of what transpired in Honolulu was merely
based on the telex report forwarded to PAL's Manila station stating that the offloading was due to weight limitations. 6
Petitioner enumerates the following incidents as indicative of its good faith in
dealing with private respondents: (1) The cancellation of the flight to Surigao City
due to mechanical/engine trouble was to ensure the safety of passengers and
cargo; (2) PAL offered to shoulder private respondents' preferred accommodations,
meals and transportation while in Cebu City with more than the usual amenities
given in cases of flight disruption, and gave them priority in the following day's
flight to Surigao City; (3) PAL employees did not act rudely towards private
respondents and its managerial personnel even gave them special attention; (4) It
was reasonable for PAL to limit the transportation expense to P150.00, considering
that the fare between the airport and the hotel was only P75.00, and they would
be picked up by the shuttle bus from the hotel to the airport, while the request for
money for tips could not be justified; and (5) The inadvertent loading of private
respondents' baggage on the replacement flight to Surigao City was at most
simple and excusable negligence due to the numerous flight disruptions and large
number of baggage on that day.
Petitioner strenuously, and understandably, insists that its employees did not lie to
private respondents regarding the want of accommodations at the latter's hotel of
preference. The only reason why Cebu Plaza Hotel was not initially offered to them
by PAL was because of the earlier advice of the hotel personnel that not all the
stranded PAL passengers could be accommodated therein. It claimed that it was in
accordance with the airline's policy of housing all affected passengers in one
location for easy communication and transportation, which accommodations in this
instance could be provided by Magellan Hotel. However, upon insistence of the
Mirandas on their preference for Cebu Plaza Hotel, Jeremias Tumulak, PAL's
passenger relations officer, told them that they could use the office phone and that
if they could arrange for such accommodation PAL would shoulder the expenses.
This concession, so petitioner avers, negates any malicious intent on its part.
Crucial to the determination of the propriety of the award of damages in this case
is the lower court's findings on the matter of bad faith, which deserves to be
quoted at length:
These claims were reasonable and appeared to be supported by
the evidence. Thus it cannot be denied that plaintiffs had to
undergo some personal inconveniences in Manila for lack of their
baggage. It is also highly probable that plaintiffs' scheduled
return to Surigao City was upset because of their having to wait
for one day for their missing things. Consequently, it was quite

evident that the off-loading of plaintiffs' baggage in Honolulu

was the proximate cause of plaintiffs subsequent inconveniences
for which they claimed to have suffered social humiliation,
wounded feelings, frustration and mental anguish.
xxx xxx xxx
In the present case there was a breach of contract committed in
bad faith by the defendant airlines. As previously noted, plaintiffs
had a confirmed booking on PAL Flight PR 101 from San
Francisco to Manila. Therefore plaintiffs were entitled to an
assured passage not only for themselves but for their baggage
as well. They had a legal right to rely on this.
The evidence showed that plaintiffs' baggage were properly
loaded and stowed in the plane when it left San Francisco for
Honolulu. The off-loading or bumping off by defendant airlines of
plaintiffs' baggage to give way to other passengers or cargo was
an arbitrary and oppressive act which clearly amounted to a
breach of contract committed in bad faith and with malice. In the
aforecited case, the Supreme Court defined bad faith as a breach
of a known duty through some motive of interest or ill will. Selfenrichment or fraternal interest, and not personal ill will, may
have been the motive, but it is malice nevertheless (infra).
As correctly pointed out in the Memorandum for Plaintiffs dated
June 18, 1990 (pp. 4-5), the following excerpt from the testimony
of Edgar Mondejar clearly demonstrated the act of discrimination
perpetrated by defendant on the herein plaintiffs (TSN, Edgar
Mondejar, Feb. 28, 1990, pp. 26-28), thus:
Q Before a plane departs, your office will see to it the plane loads the exact weight
limitation insofar as the cargoes (sic) and passengers are concerned, is that
correct?
A Yes.
Q And so with the PR 101 flight starting mainland USA, it complied with the weight
limitation, passengers and baggages (sic) limitation, is that correct?
A Yes.
Q In other words the trip from the mainland USA started in Hawaii to off-load
cargoes (sic), you complied with the weight limitation and so on?
A Yes.
Q But you are saying upon arriving in Honolulu certain containers were off-loaded?
A Yes.
Q That would be therefore some containers were off-loaded to give way to some
other containers starting from Honolulu towards Manila?
A Yes.
Q In other words Mr. Mondejar, preference was given to cargoes (sic) newly loaded
at Honolulu instead of the cargoes (sic) already from mainland USA, is that
correct?

A Yes.

The aforesaid testimony constituted a clear admission in

defendant's evidence of facts amounting to a breach of contract
in bad faith. This being so, defendant must be held liable in
damages for the consequences of its action. 7 (Corrections
indicated in original text.)

The trial court further found that the situation was aggravated by the following
incidents: the poor treatment of the Mirandas by the PAL employees during the
stopover at Mactan Airport in Cebu; the cavalier and dubious response of
petitioner's personnel to the Miranda spouses' request to be billeted at the Cebu
Plaza Hotel by denying the same allegedly because it was fully booked, which
claim was belied by the fact that Dr. Miranda was easily able to arrange for
accommodations thereat; and, the PAL employees' negligent, almost malicious, act
of sending off the baggage of private respondents to Surigao City, while they were
still in Cebu, without any explanation for this gross oversight. 8
The Court of Appeals affirmed these findings of the trial court by stating that
While we recognize an airline's prerogative to off-load baggag(e)
to conform with weight limitations for the purpose of ensuring
the safety of passengers, We, however, cannot sanction the
motion (sic) and manner it was carried out in this case.
It is uncontroverted that appellees' baggag(e) were properly
weighed and loaded in the plane when it left San Francisco for
Honolulu. When they reached Honolulu, they were not informed
that their baggag(e) would be off-loaded. Ironically, if the
purpose of the off-loading was to conform with the weight
limitations, why were other containers loaded in Honolulu? The
real reason was revealed by Edgar Montejar, baggage service
representative of the appellant. . . . 9
xxx xxx xxx
As earlier noted, the off-loading of appellees' baggag(e) was
done in bad faith because it was not really for the purpose of
complying with weight limitations but to give undue preference
to newly-loaded baggag(e) in Honolulu. This was followed by
another mishandling of said baggag(e) in the twice-cancelled
connecting flight from Cebu to Surigao. Appellees' sad
experience was further aggravated by the misconduct of
appellant's personnel in Cebu, who lied to appellees in denying
their request to be billeted at Cebu Plaza Hotel. 10
The Court has time and again ruled, and it cannot be over-emphasized, that a
contract of air carriage generates a relation attended with a public duty and any

discourteous conduct on the part of a carrier's employee toward a passenger gives

the latter an action for damages and, more so, where there is bad faith. 11
It is settled that bad faith must be duly proved and not merely presumed. The
existence of bad faith, being a factual question, and the Supreme Court not being
a trier of facts, the findings thereon of the trial court as well as of the Court of
Appeals shall not be disturbed on appeal and are entitled to great weight and
respect. 12 Said findings are final and conclusive upon the Supreme Court
except, inter alia, where the findings of the Court of Appeals and the trial court are
contrary to each other. 13
It is evident that the issues raised in this petition are the correctness of the factual
findings of the Court of Appeals of bad faith on the part of petitioner and the award
of damages against it. This Court has consistently held that the findings of the
Court of Appeals and the other lower courts are as a rule binding upon it, subject
to certain exceptions created by case law. As nothing in the record indicates any of
such exceptions, the factual conclusions of the appellate court must be affirmed. 14
It is now firmly settled that moral damages are recoverable in suits predicated on
breach of a contract of carriage where it is proved that the carrier was guilty of
fraud or bad faith. 15 Inattention to and lack of care for the interests of its
passengers who are entitled to its utmost consideration, particularly as to their
convenience, amount to bad faith which entitles the passenger to an award of
moral damages. What the law considers as bad faith which may furnish the ground
for an award of moral damages would be bad faith in securing the contract and in
the execution thereof, as well as in the enforcement of its terms, or any other kind
of deceit. 16 Such unprofessional and proscribed conduct is attributable to
petitioner airline in the case at bar and the adverse doctrinal rule is accordingly
applicable to it.
In Cathay Pacific Airways, Ltd. vs. Court of Appeals, et al., 17 a case which is
virtually on all fours with the present controversy, we stated:
In the case at bar, both the trial court and the appellate court
found that CATHAY was grossly negligent and reckless when it
failed to deliver the luggage of petitioner at the appointed place
and time. We agree. . . . While the mere failure of CATHAY to
deliver respondent's luggage at the agreed place and time did
not ipso facto amount to willful misconduct since the luggage
was eventually delivered to private respondent, albeit belatedly,
We are persuaded that the employees of CATHAY acted in bad
faith, . . .
. . ., if the defendant airline is shown to have acted fraudulently
or in bad faith, the award of moral and exemplary damages is
proper.

It must, of course, be borne in mind that moral damages are not awarded to
penalize the defendant but to compensate the plaintiff for the injuries he may
have suffered. 18 in a contractual or quasi-contractual relationship, exemplary
damages, on the other hand, may be awarded only if the defendant had acted in a
wanton, fraudulent, reckless, oppressive or malevolent manner. 19 Attorney's fees
in the concept of damages may be awarded where there is a finding of bad
faith. 20 The evidence on record amply sustains, and we correspondingly find, that
the awards assessed against petitioner on the aforestated items of damages are
justified and reasonable.
At this juncture, it may also be pointed out that it is PAL's duty to provide
assistance to private respondents and, for that matter, any other passenger
similarly inconvenienced due to delay in the completion of the transport and the
receipt of their baggage. Therefore, its unilateral and voluntary act of providing
cash assistance is deemed part of its obligation as an air carrier, and is hardly
anything to rave about. Likewise, arrangements for and verification of requested
hotel accommodations for private respondents could and should have been done
by PAL employees themselves, and not by Dr. Miranda. It was rather patronizing of
PAL to make much of the fact that they allowed Dr. Miranda to use its office
telephone in order to get a hotel room.
While it may be true that there was no direct evidence on record of blatant
rudeness on the part of PAL employees towards the Mirandas, the fact that private
respondents were practically compelled to haggle for accommodations, a situation
unbefitting persons of their stature, is rather demeaning and it partakes of
discourtesy magnified by PAL's condescending attitude. Moreover, it cannot be
denied that the PAL employees herein concerned were definitely less than candid,
to put it mildly, when they withheld information from private respondents that they
could actually be accommodated in a hotel of their choice.
Indeed, the flamboyant testimony of Oscar Jereza, * as PAL's duty manager,
merely pays lip-service to, without putting into reality, the avowed company policy
of invariably making available and always granting the requests for the kind and
standard of accommodations demanded by and appropriate for its
passengers. 21 Certainly, a more efficient service, and not a lackadaisical and
disorganized system, is expected of the nation's flag carrier, especially on an
international flight.
For, on the picayune matter of transportation expenses, PAL was obviously and
unduly scrimping even on the small amount to be given to the Mirandas. PAL failed
to consider that they were making arrangements for two paying round-trip
passengers, not penny-ante freeloaders, who had been inconvenienced by the
numerous delays in flight services and careless handling of their belongings by
PAL. The niggardly attitude of its personnel in this unfortunate incident, as well as
their hair-splitting attempts at justification, is a disservice to the image which our
national airline seeks to project in its costly advertisements.

We agree with the findings of the lower court that the request of private
respondents for monetary assistance of P300.00 for taxi fare was indeed justified,
considering that there were two of them and they had several pieces of luggage
which had to be ferried between the airport and the hotel. Also, the request for a
small additional sum for tips is equally reasonable since tipping, especially in a
first-rate hotel, is an accepted practice, of which the Court can take judicial notice.
This is aside from the fact that private respondents, having just arrived from an
extended trip abroad, had already run out of Philippine currency, which
predicament was exacerbated by their additional stay in Manila due to the offloading of their baggage. All these inconveniences should have warranted a
commonsensical and more understanding treatment from PAL, considering that
private respondents found themselves in. this unpleasant situation through no
fault of theirs.
2. On its second issue, petitioner avers that the express provisions on private
respondents' tickets stipulating that liability for delay in delivery of baggage shall
be limited to US$20.00 per kilo of baggage delayed, unless the passenger declares
a higher valuation, constitutes the contract of carriage between PAL and private
respondents.
It further contends that these express provisions are in compliance with the
provisions of the Warsaw Convention for the Unification of Rules Relating to
International Carrier by Air, to which the Philippines is a signatory. Thereunder, it is
asserted that PAL flight PR 101 from San Francisco, U.S.A., to Manila, Philippines is
an "international transportation" well within the coverage of the Warsaw
Convention.
Petitioner obstinately insists on the applicability of the provisions of the Warsaw
Convention regarding the carrier's limited liability since the off-loading was
supposedly justified and not attended by bad faith. Neither was there any claim for
loss of baggage as in fact private respondents' baggage were, albeit delayed,
received by them in good condition. 22
The court a quo debunked petitioner's arguments by this holding:
The defense raised by defendant airlines that it can be held
liable only under the terms of the Warsaw Convention (Answer,
Special and Affirmative Defenses, dated October 26, 1988) is of
no moment. For it has also been held that Articles 17, 18 and 19
of the Warsaw Convention of 1929 merely declare the air carriers
liable for damages in the cases enumerated therein, if the
conditions specified are present. Neither the provisions of said
articles nor others regulate or exclude liability for other breaches
of contract by air carriers (Northwest Airlines, Inc. vs. Nicolas
Cuenca, et al., 14 SCRA 1063). 23
This ruling of the trial court was affirmed by respondent Court of Appeals, thus:

We are not persuaded. Appellees do not seek payment for loss of

any baggage. They are claiming damages arising from the
discriminatory off-loading of their baggag(e). That cannot be
limited by the printed conditions in the tickets and baggage
checks. Neither can the Warsaw Convention exclude nor regulate
the liability for other breaches of contract by air carriers. A
recognition of the Warsaw Convention does not preclude the
operation of our Civil Code and related laws in determining the
extent of liability of common carriers in breach of contract of
carriage, particularly for willful misconduct of their employees. 24
The congruent finding of both the trial court and respondent court that there was
discriminatory off-loading being a factual question is, as stated earlier, binding
upon and can no longer be passed upon by this Court, especially in view of and in
deference to the affirmance of the same by respondent appellate court.
There was no error on the part of the Court of Appeals when it refused to apply the
provisions of the Warsaw Convention, for in the words of this Court in the
aforequoted Cathay Pacific case:
. . . although the Warsaw Convention has the force and effect of
law in this country, being a treaty commitment assumed by the
Philippine government, said convention does not operate as an
exclusive enumeration of the instances for declaring a carrier
liable for breach of contract of carriage or as an absolute limit of
the extent of that liability. The Warsaw Convention declares the
carrier liable in the enumerated cases and under certain
limitations. However, it must not be construed to preclude the
operation of the Civil Code and pertinent laws. It does not
regulate, much less exempt, the carrier from liability for
damages for violating the rights of its passengers under the
contract of carriage, especially if willful misconduct on the part
of the carrier's employees is found or established, which is the
case before Us. . . .
ACCORDINGLY, finding no reversible error, the challenged judgment of respondent
Court of Appeals is hereby AFFIRMED in toto.
[G.R. No. 119184. July 21, 1997]
THE HEIRS OF FELICIDAD CANQUE namely: SURVIVING SPOUSE
MARCELINO and children MARIANO, LEONILO, PERFECTA, MEXIQUELA,
EMILIO, MARCELINO JR., ALEJANDRO, the Heirs of JESUS and ADRIANO, all
surnamed CANQUE, petitioners, vs. COURT OF APPEALS, THE RURAL BANK
OF MATANAO (DAVAO DEL SUR), INC, and/or CONRADO
ANTONIO, respondents.
DECISION

PANGANIBAN, J.:
In deciding this appeal, this Court reiterates the dictum that the mortgagor of titled real
estate acquired under the Public Land Act but foreclosed by a rural bank, may redeem said
property within two (2) years from the registration of the sheriffs certificate of sale; and if the
said mortgagor fails to exercise such right, he or his heirs may still repurchase the land
within five years from the expiration of the two-year redemption period. It also finds occasion
to remind lower courts to keep abreast of decisions of this Court and apply them in resolving
identical cases before them.
Statement of the Case
This is a petition for review under Rule 45 seeking annulment of the Decision [1] of the
Court of Appeals[2] promulgated on August 25, 1994 in CA-G.R. CV No. 39807, reversing the
trial courts[3]decision.[4] The latter tribunal disposed:
WHEREFORE, in the light of the foregoing, the court hereby decrees: amending in part the partial
judgment:
1.) Allowing the plaintiff to redeem the mortgaged properties by paying the amount of the purchase
price with interest thereon at the rate of one per centum per month up to the date of her deposit of the
redemption price and ordering the defendant to accept payment from the plaintiff;
2.) Dismissing[5] all the claims and counterclaims that the parties may have against each other in
connection with this case.
SO ORDERED.
The Antecedent Facts
The facts as found by the Respondent Court of Appeals appear undisputed. They are
as follows:
Spouses Marcelino Canque and Felicidad Canque were the registered owners of a parcel of land under
Original Certificate of Title No. P-(20559)-3409, of the Register of Deeds of Davao del Sur issued by
virtue of Free Patent No. 40336, with an area of 2 hectares, 43 ares, and 58 centares. On May 21, 1976,
said spouses sold a portion of the parcel of land to the Iglesia ni Kristo Church to the extent of 750
square meters. A new Transfer of Title No. T-8730 was issued to said spouses by the Register of Deeds
of Davao del Sur. On October 12, 1977, said spouses obtained a loan of Fifteen Thousand (P15,000.00)
from defendant bank secured by a real estate mortgage over the parcel of land under Transfer Certificate
of Title No. T-8730 with an area of 23, 608 square meters.
The spouses loan of P15,000.00 with the defendant bank was duly paid.
On February 2, 1980, Felicidad Canque passed away. More than a month later, on March 7, 1980,
widower Marcelino Canque obtained by himself, another loan with defendant bank in the amount

of P25,000.00 with the same conjugal property under Transfer Certificate of Title No. T-8730 as
collateral. The defendant bank allegedly considered this second loan as an extension of the first loan as
the real estate mortgage of the first loan had remained uncancelled, despite the earlier payment of the
first loan by the said spouses.
For failure of Marcelino Canque to pay the second loan, defendant bank extrajudicially foreclosed the
real estate mortgage and sold the property to itself as the highest bidder in a public sale.
On September 9, 1983, the Sheriffs Certificate of Sale was registered. On October 18, 1985,
defendants executed an affidavit of consolidation of ownership and deed of absolute sale. On December
23, 1985, Transfer Certificate of Title No. T-18357 was issued in the name of defendant bank by the
Register of Deeds of Davao del Sur.
After seven years from the registration of the Sheriffs Certificate of Sale, plaintiffs Marcelino Canque
and his children offered to redeem the property in question but defendant bank refused. Hence, the
complaint filed before the lower court on September 7, 1990.
After hearing on the merits, the lower court first issued a partial judgment on January 8, 1992, the
decretal portion of which reads:
WHEREFORE, partial judgment is hereby rendered:
1. Declaring the real estate mortgage between the plaintiffs and defendants valid; and
2. Allowing the plaintiffs to exercise their right of redemption and/or repurchase pursuant to the
provisions of Sec. 119, of Commonwealth Act 141, otherwise known as the Public Land Act.

In the case of Eastman Chemical Industries, Inc. v. C.A., 174 SCRA 619, the Supreme Court made the
following pronouncement:
In the case of Reyes vs. Noblejas and Santos (G.R. No. L-23691, November 25, 1967, 21 SCRA 1027
at pp. 1029-1030) the Supreme Court upheld the contention of the Land Registration Commission, as
follows:
x x x Section 6 of Act 3135 should be applied to the present case together with: (1) Sections 30 to 35
of Rule 39 of the Revised Rules of Court with regard to redemption; (2) Section 27, Rule 39 of the said
Rules and Section 71 of Act 496 with regard to the filing (registration) of the sheriffs certificate of sale;
and (3) Section 50 of Act 496, with regard to the registration of the certificate of sale so as to consider
the land conveyed and affected under the Land Registration Act.
and that:
x x x. Section 27, Rule 39 of the Revised Rules of Court provides that the certificate of sale executed
by the sheriff in a public auction sale must be filed (registered) in the Office of the Register of Deeds of
the province where the land is situated. This is mandatory requirement. Failure to register the
certificate of sale violates the said provision of law and, construed in relation with Section 50 of the
Land Registration Law (Act 496), shall not take effect as a conveyance or bind the land covered by a
torrens title because the act of registration is the operative act to convey and effect the land. So the
redemption period, for purposes of determining the time when a final deed of sale may be executed or
issued and the ownership of the registered land consolidated in the purchaser at an extrajudicial
foreclosure sale under Act 3135, should be reckoned from the date of registration of the certificate of
sale in the office of the register of deeds concerned and not from the date of the public auction sale. x x
x. (Emphasis Supplied)[6]
The respondent appellate court disagreed with the trial courts decision, viz.:

(p. 5, Partial Dec.;p. 74, Orig. Rec.)

On August 24, 1992, the lower court issued the earlier stated amended decision.
Dissatisfied with the verdict of the lower court plaintiffs appealed to the Court [of Appeals].
The principal issue posed in this appeal is whether or not the lower court erred in ruling that plaintiff
Mario Canques right of redemption as well as that of the other plaintiffs-appellees, heirs of Felicidad
Canque, has not prescribed.
In the case of Achuelo v. IAC, 147 SCRA 434, the Supreme Court reiterated the express provision of
law as follows:
Section 119 of Commonwealth Act 141 states:
Every reconveyance of land acquired under the free patent homestead provisions, when proper, shall be
subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the
date of conveyance.

Clearly, the lower court erred in ruling that plaintiffs-appellees redemption period commenced on
October 18, 1985, date of defendants-appellants execution of an affidavit of consolidation of ownership
and deed of absolute sale. The correct date to reckon with the start of the plaintiffs-appellees
prescriptive period of five years is September 9, 1983, the date of the registration of the Sheriffs
Certificate of Sale. Plaintiffs-appellees instant suit to compel defendants-appellees to allow them to
redeem the property was only filed on September 7, 1990, or almost seven (7) years from the
registration of the Sheriffs certificate of sale, or beyond the five-year prescriptive period as provided
under Sec. 119 of Commonwealth Act 141. Thus, plaintiffs-appellees right of redemption had already
prescribed.
All is not lost, however for the plaintiffs-appellees as heirs of Felicidad Canque for the lost right of
redemption of the parcel of land in question only applies to the conjugal share of 50% of plaintiff
Marcelino Canque considering that at the time the second loan of P25,000.00 was entered by said
plaintiff with defendant bank, his spouse Felicidad Canque, who had a share of the other 50% of the
conjugal property, had already passed away (Art. 185, New Civil Code). Thus, when plaintiff Mario
Canque entered into the said loan agreement with defendant bank giving the parcel of land in question
as security in the form of real estate mortgage, it was only valid insofar as his 50% of the conjugal
property share from the said parcel of land is concerned. Defendant-appellant bank had acquired,

therefore, no right over the other 50% of the conjugal property pertaining to the late Felicidad Canque
which share of 50% automatically passed to her heirs, herein plaintiffs-appellees from the moment of
her (Felicidad Canque) death (Art. 777, New Civil Code).[7]

First Issue: Prescriptive Period to Repurchase

In Rural Bank of Davao City vs. Court of Appeals, [10] this Court, through Mr. Justice
Hilario G. Davide, Jr., explicitly and cogently ruled:

Hence, the Court of Appeals rendered judgment, the decretal portion of which reads:
WHEREFORE, the appealed decision of the lower court in Civil Case No. 2688 is hereby REVERSED
AND SET ASIDE. A new judgment is hereby entered by the Court as follows:
1. Plaintiff-appellee Mario Canques right of redemption insofar as 50% of the property in question has
already prescribed, and defendant-appellant banks title and ownership of the said 50% of the property
are declared incontrovertible by the Court (of Appeals).
2. Declaring the second deed of real estate mortgage over the parcel of land in question insofar as 50%
of it is concerned as void as it pertained to the conjugal share of the late Felicidad Canque which share
of 50% should rightfully pass to her heirs, herein plaintiffs-appellees.
3. Ordering the Register of Deeds of the province of Davao Del Sur to cancel Transfer Certificate of
Title No. T-18357 and to issue two new Transfer Certificates of Title, one to plaintiffs-appellees under
the name Heirs of Felicidad Canque, and another one to the Rural Bank of Matanao, Inc. at 50% each
of the property in question covered by Transfer Certificate of Title No. T-18357.
4. Dismissing all claims and counterclaims of the parties against each other in this case.
5. No costs.
IT IS SO ORDERED.[8]
Not satisfied with the above, petitioner filed this recourse to this Court.
The Issues
Petitioners submit the following assignment of errors:
I --The Court of Appeals committed a serious error of law in holding that the period to
repurchase of foreclosed lands issued thru free patent by Rural Banks is only five (5)
years.
II --The Court of Appeals erred in not passing upon the issue of whether or not the Real
Estate Mortgage is a continuing mortgage so as to also secure future loans by the
husband after the death of the wife.[9]
The Courts Ruling
The petition is meritorious.

x x x If the land is mortgaged to a rural bank under R. A. No. 720, as amended, the mortgagor
may redeem the property within two (2) years from the date of foreclosure or from the
registration of the sheriffs certificate of sale at such foreclosure if the property is not covered or
is covered, respectively, by a Torrens title. If the mortgagor fails to exercise such right, he or his
heirs may still repurchase the property within five (5) years from the expiration of the two (2)
year redemption period pursuant to Sec. 119 of the Public Land Act (C.A. No. 141). If the land
is mortgaged to parties other than rural banks, the mortgagor may redeem the property within
one (1) year from the registration of the certificate of sale pursuant to Act No. 3135. If he fails to
do so, he or his heirs may repurchase the property within five (5) years from the expiration of the
redemption period also pursuant to Sec. 119 of the Public Land Act.
In the case at bar, the Sheriffs Certificate of Sale was registered on September 9,
1983. Thus, based on the foregoing dictum, the petitioners, whose land was mortgaged to
and foreclosed by a rural bank, had a period of two years or until September 9, 1985 to
exercise their right of redemption. And in line with the mandate of Sec. 119 of the Public Land
Act, they had an additional period of five years from the latter date or until September 9, 1990
to exercise their right to repurchase. Thus, the petitioners right to redeem their land had not
expired on September 7, 1990 when they filed suit against private respondent to compel the
latter to allow the former to repurchase their land.
Clearly, the Court of Appeals committed a reversible error because it palpably failed to
consider in its August 25, 1994 Decision the aforementioned ruling of the Supreme Court
promulgated twenty months earlier on January 27, 1993. Unfortunately, this is not the first
time for this Court to come upon such a slip. Peltan Development vs. Court of Appeals[11] ruled
that every court must take cognizance of decisions this Court has rendered because they are
proper subjects of mandatory judicial notice xxx [and] more importantly form part of the legal
system. We stress that members of the bench have a responsibility to know and to apply the
latest holdings of the Supreme Court. The nature of their calling requires no less.
Second Issue: Factual Finding of Continuing Mortgage
Whether the mortgage which the Canque spouses contracted with private respondent
bank was intended by the parties to be a continuing one, a factual issue passed upon subsilencio by the Court of Appeals, had been threshed out by the trial court. Finding that the
parties did contemplate a continuing credit arrangement, the trial court aptly reasoned:
If it were not indeed the intention of the parties that (the property) mortgaged shall serve as a
continuing security not only for the first loan of P15,000.00 but also for subsequent loans, the natural
thing for the mortgagor to have done under the premises was to ask for the return of the title covering
the property mortgaged to the defendant and consequently ask for the discharge and/or cancellation of
the annotation on the title.

These the plaintiff did not do, as then, it was their intention to avail of subsequent loans from
defendants. Besides, the alleged full payment of the first loan of P15,000.00 was not clearly shown to
have caused the discharge and/or cancellation of the real estate mortgage constituted therefor. The (trial
court) believes that the full payment alleged is a situation obtaining in a continuing credit secured by
mortgage whereby the payment on a particular day equalled the amount of the mortgage. In such a
situation, the mortgage is not discharged as long as subsequent loans and/or advancements may be
demanded, as plaintiff actually did in this case by obtaining the second loan of P25,000.00.
The argument of plaintiffs that the surviving spouse, Marcelino Canque cannot mortgage the property to
secure the loan of P25,000.00 because his wife had died and therefore he was not the absolute owner of
the mortgaged property, must fall as it was not convincingly shown that the defendants had knowledge
of the wifes death at the time the loan of P25,000.00 was obtained.
Lastly, it is indeed absurd for the defendant bank, considering the nature of its business, not to require
collateral for the loan of P25,000.00 when it did for the lesser loan of P15,000.00.
The fact is, and this the (trial court) believes, plaintiffs and defendants had agreed to have a continuing
credit arrangement secured by a real estate mortgage. With this arrangement, plaintiffs first secured the
loan of P15,000.00 and after liquidation thereof, they obtained another loan of P25,000.00 with the
same property as collateral.[12]
In this issue, we defer to the well entrenched doctrine that factual findings of the trial
court shall not be disturbed on appeal unless the trial court has overlooked or ignored some
fact or circumstance of sufficient weight or significance which, if considered, would alter the
situation.[13] After a thorough review of this case, the Court finds both lower courts did not
overlook any such fact or circumstance. Hence, their factual finding as to the parties intention
in entering into a real mortgage under a continuing credit/mortgage arrangement is binding
upon this Court. In any event, this issue is really academic in view of our holding on the first
question.
In sum, we rule that the disposition of the Regional Trial Court allowing the redemption is
correct although for a different reason, and that the Court of Appeals erred in failing to add the
two-year redemption period to the five-year repurchase right granted by the Public Land Act.
WHEREFORE, the foregoing premises considered, the petition is GRANTED. The
assailed Decision of the Respondent Court of Appeals is hereby SET ASIDE. The dispositive
portion of the Decision of the Regional Trial Court of Digos, Davao del Sur in Civil Case No.
2688 allowing petitioner to redeem the subject property is hereby REINSTATED.
[G.R. No. 103493. June 19, 1997]
PHILSEC INVESTMENT CORPORATION, BPI-INTERNATIONAL FINANCE LIMITED, and
ATHONA HOLDINGS, N.V., petitioners, vs. THE HONORABLE COURT OF APPEALS,
1488, INC., DRAGO DAIC, VENTURA O. DUCAT, PRECIOSO R. PERLAS, and WILLIAM
H. CRAIG, respondents.
DECISION

MENDOZA, J.:
This case presents for determination the conclusiveness of a foreign judgment upon the
rights of the parties under the same cause of action asserted in a case in our local
court. Petitioners brought this case in the Regional Trial Court of Makati, Branch 56, which, in
view of the pendency at the time of the foreign action, dismissed Civil Case No. 16563 on the
ground of litis pendentia, in addition to forum non conveniens. On appeal, the Court of
Appeals affirmed. Hence this petition for review on certiorari.
The facts are as follows:
On January 15, 1983, private respondent Ventura O. Ducat obtained separate loans
from petitioners Ayala International Finance Limited (hereafter called AYALA) [1] and Philsec
Investment Corporation (hereafter called PHILSEC) in the sum of US$2,500,000.00, secured
by shares of stock owned by Ducat with a market value of P14,088,995.00. In order to
facilitate the payment of the loans, private respondent 1488, Inc., through its president, private
respondent Drago Daic, assumed Ducats obligation under an Agreement, dated January 27,
1983, whereby 1488, Inc. executed a Warranty Deed with Vendors Lien by which it sold to
petitioner Athona Holdings, N.V. (hereafter called ATHONA) a parcel of land in Harris County,
Texas, U.S.A., for US$2,807,209.02, while PHILSEC and AYALA extended a loan to ATHONA
in the amount of US$2,500,000.00 as initial payment of the purchase price. The balance of
US$307,209.02 was to be paid by means of a promissory note executed by ATHONA in favor
of 1488, Inc. Subsequently, upon their receipt of the US$2,500,000.00 from 1488, Inc.,
PHILSEC and AYALA released Ducat from his indebtedness and delivered to 1488, Inc. all the
shares of stock in their possession belonging to Ducat.
As ATHONA failed to pay the interest on the balance of US$307,209.02, the entire
amount covered by the note became due and demandable. Accordingly, on October 17, 1985,
private respondent 1488, Inc. sued petitioners PHILSEC, AYALA, and ATHONA in the United
States for payment of the balance of US$307,209.02 and for damages for breach of contract
and for fraud allegedly perpetrated by petitioners in misrepresenting the marketability of the
shares of stock delivered to 1488, Inc. under the Agreement. Originally instituted in the United
States District Court of Texas, 165th Judicial District, where it was docketed as Case No. 8557746, the venue of the action was later transferred to the United States District Court for the
Southern District of Texas, where 1488, Inc. filed an amended complaint, reiterating its
allegations in the original complaint. ATHONA filed an answer with counterclaim, impleading
private respondents herein as counterdefendants, for allegedly conspiring in selling the
property at a price over its market value. Private respondent Perlas, who had allegedly
appraised the property, was later dropped as counterdefendant. ATHONA sought the recovery
of damages and excess payment allegedly made to 1488, Inc. and, in the alternative, the
rescission of sale of the property. For their part, PHILSEC and AYALA filed a motion to
dismiss on the ground of lack of jurisdiction over their person, but, as their motion was denied,
they later filed a joint answer with counterclaim against private respondents and Edgardo V.
Guevarra, PHILSECs own former president, for the rescission of the sale on the ground that
the property had been overvalued. On March 13, 1990, the United States District Court for the
Southern District of Texas dismissed the counterclaim against Edgardo V. Guevarra on the
ground that it was frivolous and [was] brought against him simply to humiliate and embarrass

him. For this reason, the U.S. court imposed so-called Rule 11 sanctions on PHILSEC and
AYALA and ordered them to pay damages to Guevarra.

service of summons was ineffective. The trial court subsequently lifted the writ of attachment
it had earlier issued against the shares of stocks of 1488, Inc. and Daic.

On April 10, 1987, while Civil Case No. H-86-440 was pending in the United States,
petitioners filed a complaint For Sum of Money with Damages and Writ of Preliminary
Attachment against private respondents in the Regional Trial Court of Makati, where it was
docketed as Civil Case No. 16563. The complaint reiterated the allegation of petitioners in
their respective counterclaims in Civil Action No. H-86-440 of the United States District Court
of Southern Texas that private respondents committed fraud by selling the property at a price
400 percent more than its true value of US$800,000.00. Petitioners claimed that, as a result of
private respondents fraudulent misrepresentations, ATHONA, PHILSEC, and AYALA were
induced to enter into the Agreement and to purchase the Houston property. Petitioners prayed
that private respondents be ordered to return to ATHONA the excess payment of
US$1,700,000.00 and to pay damages. On April 20, 1987, the trial court issued a writ of
preliminary attachment against the real and personal properties of private respondents. [2]

Petitioners appealed to the Court of Appeals, arguing that the trial court erred in applying
the principle of litis pendentia and forum non conveniens and in ruling that it had no jurisdiction
over the defendants, despite the previous attachment of shares of stocks belonging to 1488,
Inc. and Daic.

Private respondent Ducat moved to dismiss Civil Case No. 16563 on the grounds of (1)
litis pendentia, vis-a-vis Civil Action No. H-86-440 filed by 1488, Inc. and Daic in the U.S.,
(2) forum non conveniens, and (3) failure of petitioners PHILSEC and BPI-IFL to state a cause
of action. Ducat contended that the alleged overpricing of the property prejudiced only
petitioner ATHONA, as buyer, but not PHILSEC and BPI-IFL which were not parties to the sale
and whose only participation was to extend financial accommodation to ATHONA under a
separate loan agreement. On the other hand, private respondents 1488, Inc. and its president
Daic filed a joint Special Appearance and Qualified Motion to Dismiss, contending that the
action being in personam, extraterritorial service of summons by publication was ineffectual
and did not vest the court with jurisdiction over 1488, Inc., which is a non-resident foreign
corporation, and Daic, who is a non-resident alien.
On January 26, 1988, the trial court granted Ducats motion to dismiss, stating that the
evidentiary requirements of the controversy may be more suitably tried before the forum of
the litis pendentia in the U.S., under the principle in private international law of forum non
conveniens, even as it noted that Ducat was not a party in the U.S. case.
A separate hearing was held with regard to 1488, Inc. and Daics motion to dismiss. On
March 9, 1988, the trial court[3] granted the motion to dismiss filed by 1488, Inc. and Daic on
the ground of litis pendentia considering that
the main factual element of the cause of action in this case which is the validity of the sale of
real property in the United States between defendant 1488 and plaintiff ATHONA is the subject
matter of the pending case in the United States District Court which, under the doctrine of forum
non conveniens, is the better (if not exclusive) forum to litigate matters needed to determine the
assessment and/or fluctuations of the fair market value of real estate situated in Houston, Texas,
U.S.A. from the date of the transaction in 1983 up to the present and verily, . . . (emphasis by
trial court)
The trial court also held itself without jurisdiction over 1488, Inc. and Daic because they were
non-residents and the action was not an action in rem or quasi in rem, so that extraterritorial

On January 6, 1992, the Court of Appeals[4] affirmed the dismissal of Civil Case No.
16563 against Ducat, 1488, Inc., and Daic on the ground of litis pendentia, thus:
The plaintiffs in the U.S. court are 1488 Inc. and/or Drago Daic, while the defendants are Philsec, the
Ayala International Finance Ltd. (BPI-IFLs former name) and the Athona Holdings, NV. The case at
bar involves the same parties. The transaction sued upon by the parties, in both cases is the Warranty
Deed executed by and between Athona Holdings and 1488 Inc. In the U.S. case, breach of contract and
the promissory note are sued upon by 1488 Inc., which likewise alleges fraud employed by herein
appellants, on the marketability of Ducats securities given in exchange for the Texas property. The
recovery of a sum of money and damages, for fraud purportedly committed by appellees, in overpricing
the Texas land, constitute the action before the Philippine court, which likewise stems from the same
Warranty Deed.
The Court of Appeals also held that Civil Case No. 16563 was an action in personam for the
recovery of a sum of money for alleged tortious acts, so that service of summons by
publication did not vest the trial court with jurisdiction over 1488, Inc. and Drago Daic. The
dismissal of Civil Case No. 16563 on the ground of forum non conveniens was likewise
affirmed by the Court of Appeals on the ground that the case can be better tried and decided
by the U.S. court:
The U.S. case and the case at bar arose from only one main transaction, and involve foreign elements, to
wit: 1) the property subject matter of the sale is situated in Texas, U.S.A.; 2) the seller, 1488 Inc. is a
non-resident foreign corporation; 3) although the buyer, Athona Holdings, a foreign corporation which
does not claim to be doing business in the Philippines, is wholly owned by Philsec, a domestic
corporation, Athona Holdings is also owned by BPI-IFL, also a foreign corporation; 4) the Warranty
Deed was executed in Texas, U.S.A.
In their present appeal, petitioners contend that:
1. THE DOCTRINE OF PENDENCY OF ANOTHER ACTION BETWEEN THE
SAME PARTIES FOR THE SAME CAUSE (LITIS PENDENTIA) RELIED
UPON BY THE COURT OF APPEALS IN AFFIRMING THE TRIAL COURTS
DISMISSAL OF THE CIVIL ACTION IS NOT APPLICABLE.
2. THE PRINCIPLE OF FORUM NON CONVENIENS ALSO RELIED UPON BY
THE COURT OF APPEALS IN AFFIRMING THE DISMISSAL BY THE TRIAL
COURT OF THE CIVIL ACTION IS LIKEWISE NOT APPLICABLE.

3. AS A COROLLARY TO THE FIRST TWO GROUNDS, THE COURT OF

APPEALS ERRED IN NOT HOLDING THAT PHILIPPINE PUBLIC POLICY
REQUIRED THE ASSUMPTION, NOT THE RELINQUISHMENT, BY THE
TRIAL COURT OF ITS RIGHTFUL JURISDICTION IN THE CIVIL ACTION
FOR THERE IS EVERY REASON TO PROTECT AND VINDICATE
PETITIONERS RIGHTS FOR TORTIOUS OR WRONGFUL ACTS OR
CONDUCT PRIVATE RESPONDENTS (WHO ARE MOSTLY NONRESIDENT ALIENS) INFLICTED UPON THEM HERE IN THE PHILIPPINES.
We will deal with these contentions in the order in which they are made.
First. It is important to note in connection with the first point that while the present case
was pending in the Court of Appeals, the United States District Court for the Southern District
of Texas rendered judgment[5] in the case before it. The judgment, which was in favor of
private respondents, was affirmed on appeal by the Circuit Court of Appeals. [6] Thus, the
principal issue to be resolved in this case is whether Civil Case No. 16536 is barred by the
judgment of the U.S. court.
Private respondents contend that for a foreign judgment to be pleaded as res judicata, a
judgment admitting the foreign decision is not necessary. On the other hand, petitioners argue
that the foreign judgment cannot be given the effect of res judicata without giving them an
opportunity to impeach it on grounds stated in Rule 39, 50 of the Rules of Court, to wit: want
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
Petitioners contention is meritorious. While this Court has given the effect of res
judicata to foreign judgments in several cases, [7] it was after the parties opposed to the
judgment had been given ample opportunity to repel them on grounds allowed under the law.
[8]
It is not necessary for this purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that there is opportunity to challenge
the foreign judgment, in order for the court to properly determine its efficacy. This is because
in this jurisdiction, with respect to actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party
and, as such, is subject to proof to the contrary.[9] Rule 39, 50 provides:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title; but the judgment may be repelled by
evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law
or fact.
Thus, in the case of General Corporation of the Philippines v. Union Insurance Society
of Canton, Ltd.,[10] which private respondents invoke for claiming conclusive effect for the
foreign judgment in their favor, the foreign judgment was considered res judicata because this

Court found from the evidence as well as from appellants own pleadings [11] that the foreign
court did not make a clear mistake of law or fact or that its judgment was void for want of
jurisdiction or because of fraud or collusion by the defendants. Trial had been previously held
in the lower court and only afterward was a decision rendered, declaring the judgment of the
Supreme Court of the State of Washington to have the effect of res judicata in the case before
the lower court. In the same vein, in Philippine International Shipping Corp. v. Court of
Appeals,[12] this Court held that the foreign judgment was valid and enforceable in the
Philippines there being no showing that it was vitiated by want of notice to the party, collusion,
fraud or clear mistake of law or fact. The prima facie presumption under the Rule had not
been rebutted.
In the case at bar, it cannot be said that petitioners were given the opportunity to
challenge the judgment of the U.S. court as basis for declaring it res judicata or conclusive of
the rights of private respondents. The proceedings in the trial court were summary. Neither
the trial court nor the appellate court was even furnished copies of the pleadings in the U.S.
court or apprised of the evidence presented thereat, to assure a proper determination of
whether the issues then being litigated in the U.S. court were exactly the issues raised in this
case such that the judgment that might be rendered would constitute res judicata. As the trial
court stated in its disputed order dated March 9, 1988:
On the plaintiffs claim in its Opposition that the causes of action of this case and the
pending case in the United States are not identical, precisely the Order of January 26, 1988
never found that the causes of action of this case and the case pending before the USA Court,
were identical. (emphasis added)
It was error therefore for the Court of Appeals to summarily rule that petitioners action is
barred by the principle of res judicata. Petitioners in fact questioned the jurisdiction of the U.S.
court over their persons, but their claim was brushed aside by both the trial court and the
Court of Appeals.[13]
Moreover, the Court notes that on April 22, 1992, 1488, Inc. and Daic filed a petition for
the enforcement of judgment in the Regional Trial Court of Makati, where it was docketed as
Civil Case No. 92-1070 and assigned to Branch 134, although the proceedings were
suspended because of the pendency of this case. To sustain the appellate courts ruling that
the foreign judgment constitutes res judicataand is a bar to the claim of petitioners would
effectively preclude petitioners from repelling the judgment in the case for enforcement. An
absurdity could then arise: a foreign judgment is not subject to challenge by the plaintiff
against whom it is invoked, if it is pleaded to resist a claim as in this case, but it may be
opposed by the defendant if the foreign judgment is sought to be enforced against him in a
separate proceeding. This is plainly untenable. It has been held therefore that:
[A] foreign judgment may not be enforced if it is not recognized in the jurisdiction where affirmative
relief is being sought. Hence, in the interest of justice, the complaint should be considered as a
petition for the recognition of the Hongkong judgment under Section 50 (b), Rule 39 of the Rules of
Court in order that the defendant, private respondent herein, may present evidence of lack of
jurisdiction, notice, collusion, fraud or clear mistake of fact and law, if applicable.[14]

Accordingly, to insure the orderly administration of justice, this case and Civil Case No.
92-1070 should be consolidated.[15] After all, the two have been filed in the Regional Trial Court
of Makati, albeit in different salas, this case being assigned to Branch 56 (Judge Fernando V.
Gorospe), while Civil Case No. 92-1070 is pending in Branch 134 of Judge Ignacio
Capulong. In such proceedings, petitioners should have the burden of impeaching the foreign
judgment and only in the event they succeed in doing so may they proceed with their action
against private respondents.
Second. Nor is the trial courts refusal to take cognizance of the case justifiable under
the principle of forum non conveniens. First, a motion to dismiss is limited to the grounds
under Rule 16, 1, which does not include forum non conveniens.[16] The propriety of
dismissing a case based on this principle requires a factual determination, hence, it is more
properly considered a matter of defense. Second, while it is within the discretion of the trial
court to abstain from assuming jurisdiction on this ground, it should do so only after vital facts
are established, to determine whether special circumstances require the courts desistance.[17]
In this case, the trial court abstained from taking jurisdiction solely on the basis of the
pleadings filed by private respondents in connection with the motion to dismiss. It failed to
consider that one of the plaintiffs (PHILSEC) is a domestic corporation and one of the
defendants (Ventura Ducat) is a Filipino, and that it was the extinguishment of the latters debt
which was the object of the transaction under litigation. The trial court arbitrarily dismissed the
case even after finding that Ducat was not a party in the U.S. case.
Third. It was error we think for the Court of Appeals and the trial court to hold that
jurisdiction over 1488, Inc. and Daic could not be obtained because this is an action
in personam and summons were served by extraterritorial service. Rule 14, 17 on
extraterritorial service provides that service of summons on a non-resident defendant may be
effected out of the Philippines by leave of Court where, among others, the property of the
defendant has been attached within the Philippines. [18] It is not disputed that the properties,
real and personal, of the private respondents had been attached prior to service of summons
under the Order of the trial court dated April 20, 1987.[19]
Fourth. As for the temporary restraining order issued by the Court on June 29, 1994, to
suspend the proceedings in Civil Case No. 92-1445 filed by Edgardo V. Guevarra to enforce
so-called Rule 11 sanctions imposed on the petitioners by the U.S. court, the Court finds that
the judgment sought to be enforced is severable from the main judgment under consideration
in Civil Case No. 16563. The separability of Guevarras claim is not only admitted by
petitioners,[20] it appears from the pleadings that petitioners only belatedly impleaded Guevarra
as defendant in Civil Case No. 16563.[21] Hence, the TRO should be lifted and Civil Case
No. 92-1445 allowed to proceed.
WHEREFORE, the decision of the Court of Appeals is REVERSED and Civil Case No.
16563 is REMANDED to the Regional Trial Court of Makati for consolidation with Civil Case
No. 92-1070 and for further proceedings in accordance with this decision. The temporary
restraining order issued on June 29, 1994 is hereby LIFTED.
[G.R. No. 119850. June 20, 1996]

MANDARIN VILLA, INC., petitioner, vs. COURT OF APPEALS and CLODUALDO DE

JESUS, respondents.
RESOLUTION
FRANCISCO, J.:
With ample evidentiary support are the following antecedent facts:
In the evening of October 19, 1989, private respondent, Clodualdo de Jesus, a
practicing lawyer and businessman, hosted a dinner for his friends at the petitioner's
restaurant the Mandarin Villa Seafoods Village, Greenhills, Mandaluyong City. After dinner the
waiter handed to him the bill in the amount of P2,658.50. Private respondent offered to pay
the bill through his credit card issued by Philippine Commercial Credit Card Inc.
(BANKARD). This card was accepted by the waiter who immediately proceeded to the
restaurant's cashier for card verification. Ten minutes later, however, the waiter returned and
audibly informed private respondent that his credit card had expired. [1] Private respondent
remonstrated that said credit card had yet to expire on September 1990, as embossed on its
face.[2] The waiter was unmoved, thus, private respondent and two of his guests approached
the restaurant's cashier who again passed the credit card over the verification computer. The
same information was produced, i.e., CARD EXPIRED. Private respondent and his guests
returned to their table and at this juncture, Professor Lirag, another guest, uttered the following
remarks: "Clody [referring to Clodualdo de Jesus], may problema ba? Baka kailangang
maghugas na kami ng pinggan?"[3] Thereupon, private respondent left the restaurant and got
his BPI Express Credit Card from his car and offered it to pay their bill. This was accepted and
honored by the cashier after verification.[4] Petitioner and his companions left afterwards.
The incident triggered the filing of a suit for damages by private respondent. Following a
full-dress trial, judgment was rendered directing the petitioner and BANKARD to pay jointly
and severally the private respondent: (a) moral damages in the amount of P250,000.00; (b)
exemplary damages in the amount of P100,000.00; and (c) attorney's fees and litigation
expenses in the amount of P50,000.00.
Both the petitioner and BANKARD appealed to the respondent Court of Appeals which
rendered a decision, thus:
"WHEREFORE, the decision appealed from is hereby MODIFIED by:
1. Finding appellant MANDARIN solely responsible for damages in favor of appellee;
2. Absolving appellant BANKARD of any responsibility for damages;
3. Reducing moral damages awarded to appellee to TWENTY FIVE THOUSAND and 00/100
(P25,000.00) PESOS;

4. Reducing exemplary damages awarded to appellee to TEN THOUSAND and 00/100 (P10,000.00)
PESOS;

thereon. Petitioner, therefore, cannot disclaim its obligation to accept private respondent's
BANKARD credit card without violating the equitable principle of estoppel.[10]

5. Reversing and setting aside the award of P50,000.00 for attorney's fees as well as interest awarded;
and

Anent the second issue, petitioner insists that it is not negligent. In support thereof,
petitioner cites its good faith in checking, not just once but twice, the validity of the
aforementioned credit card prior to its dishonor. It argues that since the verification machine
flashed an information that the credit card has expired, petitioner could not be expected to
honor the same much less be adjudged negligent for dishonoring it. Further, petitioner
asseverates that it only followed the guidelines and instructions issued by BANKARD in
dishonoring the aforementioned credit card. The argument is untenable.

6. AFFIRMING the dismissal of all counterclaims and cross-claims.

Costs against appellant Mandarin.
SO ORDERED."[5]
Mandarin Villa, thus, interposed this present petition, faulting the respondent court with
six (6) assigned errors which may be reduced to the following issues, to wit: (1) whether or
not petitioner is bound to accept payment by means of credit card; (2) whether or not petitioner
is negligent under the circumstances obtaining in this case; and (3) if negligent, whether or not
such negligence is the proximate cause of the private respondent's damage.
Petitioner contends that it cannot be faulted for its cashier's refusal to accept private
respondent's BANKARD credit card, the same not being a legal tender. It argues that private
respondent's offer to pay by means of credit card partook of the nature of a proposal to novate
an existing obligation for which petitioner, as creditor, must first give its consent otherwise
there will be no binding contract between them. Petitioner cannot seek refuge behind this
averment.

The test for determining the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use the reasonable care and
caution which an ordinary prudent person would have used in the same situation? If not, then
he is guilty of negligence.[11] The Point of Sale (POS) Guidelines which outlined the steps that
petitioner must follow under the circumstances provides:
"x x x

xxx
"CARD EXPIRED

a.

Check expiry date on card.

b.

If unexpired, refer to CB.

We note that Mandarin Villa Seafood Village is affiliated with BANKARD. In fact, an
"Agreement"[6] entered into by petitioner and BANKARD dated June 23, 1989, provides inter
alia:

b.1.

If valid, honor up to maximum of SPL only.

b.2.

If in CB as Lost, do procedures 2a to 2e.,

"The MERCHANT shall honor validly issued PCCCI credit cards presented by their corresponding
holders in the purchase of goods and/or services supplied by it provided that the card expiration date has
not elapsed and the card number does not appear on the latest cancellation bulletin of lost, suspended
and cancelled PCCCI credit cards and, no signs of tampering, alterations or irregularities appear on the
face of the credit card."[7]

b.3.

If in CB as Suspended/Cancelled, do not honor card.

While private respondent may not be a party to the said agreement, the above-quoted
stipulation conferred a favor upon the private respondent, a holder of credit card validly issued
by BANKARD. This stipulation is a stipulation pour autri and under Article 1311 of the Civil
Code private respondent may demand its fulfillment provided he communicated his
acceptance to the petitioner before its revocation.[8] In this case, private respondent's offer to
pay by means of his BANKARD credit card constitutes not only an acceptance of the said
stipulation but also an explicit communication of his acceptance to the obligor.
In addition, the record shows that petitioner posted a logo inside Mandarin Villa Seafood
Village stating that "Bankard is accepted here." [9] This representation is conclusive upon the
petitioner which it cannot deny or disprove as against the private respondent, the party relying

xxx

c.

If expired, do not honor card."[12]

A cursory reading of said rule reveals that whenever the words CARD EXPIRED flashes
on the screen of the verification machine, petitioner should check the credit card's expiry date
embossed on the card itself. If unexpired, petitioner should honor the card provided it is not
invalid, cancelled or otherwise suspended. But if expired, petitioner should not honor the
card. In this case, private respondent's BANKARD credit card has an embossed expiry date
of September 1990.[13] Clearly, it has not yet expired on October 19,1989, when the same was
wrongfully dishonored by the petitioner. Hence, petitioner did not use the reasonable care and
caution which an ordinary prudent person would have used in the same situation and as such
petitioner is guilty of negligence. In this connection, we quote with approval the following
observations of the respondent Court.
"Mandarin argues that based on the POS Guidelines (supra), it has three options in
case the verification machine flashes 'CARD EXPIRED.' It chose to exercise option (c) by not

honoring appellee's credit card. However, appellant apparently intentionally glossed over
option '(a) Check expiry date on card" (id.) which would have shown without any shadow of
doubt that the expiry date embossed on the BANKARD was 'SEP 90.' (Exhibit "D".) A cursory
look at the appellee's BANKARD would also reveal that appellee had been as of that date a
cardholder since 1982, a fact which would have entitled the customer the courtesy of better
treatment."[14]

PENECILLA, a minor, four years of age, choking her with his right hand,
succeeded in having carnal knowledge with her and as a result thereof
she suffered asphyxia by strangulation fractured cervical vertebra and
lacerations of the vaginal and rectal openings causing profuse
hemorrhages and other injuries which are necessarily fatal and which
were the direct cause of her death.

Petitioner, however, argues that private respondent's own negligence in not bringing with
him sufficient cash was the proximate cause of his damage. It likewise sought exculpation by
contending that the remark of Professor Lirag[15] is a supervening event and at the same time
the proximate cause of private respondent's injury.

CONTRARY TO LAW.

We find this contention also devoid of merit. While it is true that private respondent did
not have sufficient cash on hand when he hosted a dinner at petitioner's restaurant, this fact
alone does not constitute negligence on his part. Neither can it be claimed that the same was
the proximate cause of private respondent's damage. We take judicial notice[16] of the current
practice among major establishments, petitioner included, to accept payment by means of
credit cards in lieu of cash. Thus, petitioner accepted private respondent's BPI Express Credit
Card after verifying its validity,[17] a fact which all the more refutes petitioner's imputation of
negligence on the private respondent.
Neither can we conclude that the remark of Professor Lirag was a supervening event
and the proximate cause of private respondent's injury. The humiliation and embarrassment of
the private respondent was brought about not by such a remark of Professor Lirag but by the
fact of dishonor by the petitioner of private respondent's valid BANKARD credit card. If at all,
the remark of Professor Lirag served only to aggravate the embarrassment then felt by private
respondent, albeit silently within himself.
WHEREFORE, the instant petition is hereby DISMISSED.
G.R. No. 117487 December 12, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALICANDO y
BRIONES, accused-appellant.
PUNO, J.:
The case at bar involves the imposition of the death penalty. With all our frailties, we are
asked to play the role of an infallible God by exercising the divine right to give or take away
life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse, our
error can result in the worst of crimes murder by the judiciary.
The records reveal that appellant Arnel Alicando was charged with the crime of rape with
homicide 1 in an Information which reads:
That on or about the 12th day of June 1994 in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force, violence and
intimidation to wit: by then and there pinning down one KHAZIE MAE

On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of
the PAO, Department of Justice. Appellant pleaded guilty.
After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It
also set the case for reception of evidence for the appellant, if he so desired. 2
The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla,
father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and
Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant
joined them but every now and then would take leave and return. Appellant was living in his
uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m.,
Penecilla's group stopped drinking and left.
Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's
length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the
window of appellant's house. She offered to buy her "yemas" but appellant closed the window.
Soon she heard the victim crying. She approached appellant's house and peeped through an
opening between its floor and door. The sight shocked her appellant was naked, on top of the
victim, his left hand choking her neck. She retreated to her house in fright. She gathered her
children together and informed her compadre, Ricardo Lagrana, then in her house, about what
she saw. Lagrana was also overcome with fear and hastily left.
Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae.
He and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless.
Rebada was aware that the Penecillas were looking for their daughter but did not tell them
what she knew. Instead, Relada called out appellant from her window and asked him the time
Khazie Mae left his house. Appellant replied he was drunk and did not know.
As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to
answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her
parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of
heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the
crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally
confessed his guilt without the assistance of counsel. On the basis of his uncounselled verbal
confession and follow up interrogations, the police came to know and recovered from
appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained
pillow and a stained T-shirt all of which were presented as evidence for the prosecution.

The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His
autopsy report reveals the following injuries sustained by the victim:

a) Lacerated wound, from the fourchette up to the

dome of the rectum..

HEAD & NECK/THORACO-ABDOMINAL REGIONS:

b) Hematoma, from the fourchette up to the rectum.

1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right
anterior neck, down to the medial portion of the left and right
infraclavicular area.

c) Lacerated wound, lateral wall of the vagina up to

the level of the promontory of the sacrum with a
length of 8 centimeters.

2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest
wall.

d) A cylinder with a diameter of 2 cms., easily passes

the vaginal and anal openings.

3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right
antero- inferior chest wall.

CAUSE OF DEATH:
A) ASPHYXIA BY STRANGULATION.

4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch.

B) FRACTURED, 2nd CERVICAL VERTEBRA.
5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac
crest.
ON OPENING THE
ABDOMINAL CAVITIES:

SKULL

C) HEMORRHAGE, 2nd DEGREE TO LACERATED

VAGINAL & RECTAL OPENINGS.

THORACOAppellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove
that the proximate cause of Khazie Mae's death was asphyxia by strangulation.

a) Fractured, 2nd cervical vertebra.

On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz:
b) Fractured, crecoid cartilage.
c) Both lungs, expanded with multiple petechial
hemorrhages.
d) Other internal organs, congested.
EXTREMITIES:
1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior
aspect, lower 3rd, left forearm.
2) Old wound, 2 x 1.5 cm., in dia., posterior middle
3rd, left forearm.

WHEREFORE, the court hereby finds the accused, Arnel Alicando,

GUILTY beyond reasonable doubt for (sic) the Crime of Rape with
Homicide penalized under Article 335 of the Revised Penal Code as
amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No.
7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of death
and to indemnify the heirs of the offended party, Khazie Mae D. Penecilla,
the sum of P50,000.00.
The death sentence shall be executed by putting the person under
sentence to death by electrocution (electric chair). As soon as facilities are
provided by the Bureau of Prisons, the method of carrying out his
sentence shall be changed by gas poisoning (sic).
Here ends Khazie Mae's quest for justice. Her tormentor must suffer for
the grievous offense he had committed. He deserves no mercy.

3) Old wound, 1.5 x 1 cm., in dia., antero-lateral

aspect, middle 3rd, right forearm.

Cost against the accused.

VAGINAL FINDINGS/ANAL FINDINGS:

SO ORDERED.

The case is before us on automatic review considering the death penalty imposed by the trial
court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant
assails the decision of the trial court as a travesty of justice.
We find that the Decision of the trial court sentencing the appellant to death is shot full of
errors, both substantive and procedural. The conviction is on an amalgam of inadmissible and
incredible evidence and supported by scoliotic logic.
First. The arraignment of the appellant is null and void. The trial judge failed to follow section
(1) (a) of Rule 116 on arraignment. Said section provides:
xxx xxx xxx
Sec. 1. Arraignment and plea; how made.
(a) The accused must be arraigned before the court where the complaint
or information has been filed or assigned for trial. The arraignment must
be made in open court by the judge or clerk by furnishing the accused a
copy of the complaint or information with the list of witnesses, reading the
same in the language or dialect known to him and asking him whether he
pleads guilty or not guilty. The prosecutor may, however, call at the trial
witnesses other than those named in the complaint or information.
The reading of the complaint or information to the appellant in the language or
dialect known to him is a new requirement imposed by the 1985 Rules on Criminal
Procedure. It implements the constitutional right of an appellant ". . . to be informed
of the nature and cause of the accusation against him." 3 The new rule also
responds to the reality that the Philippines is a country divided by dialects and
Pilipino as a national language is still in the process of evolution. 4 Judicial notice
can be taken of the fact that many Filipinos have limited understanding either of the
Pilipino or English language, our official languages for purposes of communication
and instruction. 5 The importance of reading the complaint or information to the
appellant in the language or dialect known to him cannot thus be understated.
In the case at bar, the records do not reveal that the Information against the appellant was
read in the language or dialect known to him. The Information against the appellant is written
in the English language. It is unbeknown whether the appellant knows the English language.
Neither is it known what dialect is understood by the appellant. Nor is there any showing that
the Information couched in English was translated to the appellant in his own dialect before his
plea of guilt. The scanty transcript during his arraignment, reads: 6
xxx xxx xxx
Prosecutor Edwin Fama Appearing as public prosecutor

Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for
arraignment.
Interpreter (Reading the information to the accused for arraignment
and pre-trial.)
Note: (After reading the information to the accused, accused pleads
guilty)
One need not draw a picture to show that the arraignment of the appellant is a
nullity. It violated section 1(a) of Rule 116, the rule implementing the constitutional
right of the appellant to be informed of the nature and cause of the accusation
against him. It also denied appellant his constitutional right to due process of law. 7It
is urged that we must presume that the arraignment of the appellant was regularly
conducted. When life is at stake, we cannot lean on this rebuttable presumption. We
cannot assume. We must be sure.
Second. The plea of guilt made by the appellant is likewise null and void. The trial court
violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section
provides:
Sec. 3. Plea of guilty to capital offense; reception of evidence.
When the accused pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness and full comprehension
of the consequences of his plea and require the prosecution to prove his
guilt and the precise degree of culpability. The accused may also present
evidence in his behalf.
The records reveal how the trial judge inadequately discharged this duty of
conducting a "searching inquiry." In the hearing of June 28, 1994, the transcripts
reveal the following: 8
Note
(After
reading
the
information to the accused,
accused pleads guilty.)
Court Question (sic) of the court
to the accused.
Q Considering that this is a crime
and under the amended law is a
heinous crime, because of your
plea of guilty without the consent
or even against the discretion of
the court, the court will give you a

mandatory
death
penalty
because of the crime charged, do
you understand?

Court If you will plead guilty, that

plea of guilty has no use because
there will be a mandatory death
penalty, do you still insist on your
plea of guilty?

Accused Yes, Your Honor.

Accused Yes, Your Honor.

Q Did you enter a plea of guilty

on your own voluntary will or
without any force or intimidation
from any one or whatever?

Court If you plead guilty to the

crime charged there will be some
effects on your civil rights hut not
until the decision will be affirmed
by the Supreme Court.

Accused None, Your Honor.

Q Are you sure?

Accused Yes, Your Honor.

Accused Yes, Your Honor.

Q Or maybe because you were
manhandled or maltreated by
anyone and that will just be the
consideration for you to plead
guilty?

Note (See Order dated June 28,

1994 attached to the records of
this case.)
In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9
xxx xxx xxx

Accused No, Your Honor.

Court Were you not manhandled,
please let us see your body?
Note (Accused raised his prison
uniform or shirt and showed to
the court his body from waist up.)
Accused No, Your Honor.
Court You were not maltreated in
the jail?
Accused No, Your Honor.
Court Please let us see whether
you have bruises so that you will
be examined by a physician to
the order of the court?
Accused No, Your Honor.

Fiscal Fama: Appearing as the

public prosecutor, ready, Your
Honor.
Our first witness is Dr. Tito
Doromal, Your Honor.
Atty. Antiquiera: For the accused,
Your Honor.
Court Before the court will
proceed with the reception of
evidence by the prosecution
Arnel Alicando, please come
here. (at this juncture, Arnel
Alicando, come near to the court)
The court is warning you again
that this is reception of evidence
by the prosecution after you
plead guilty to the crime charged
at, do you understand?

A Yes.
Q Do you still affirm and confirm
to your plea of guilty of rape with
homicide?

arrested, who arrested him, how and where he was interrogated, whether he was medically
examined before and after his interrogation, etc. It limited its efforts trying to discover late body
marks of maltreatment as if involuntariness is caused by physical abuse alone. Regretfully, it
even turned a blind eye on the following damning entry on the June 13, 1994 Record of
Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by
inmates while in jail and had suffered hematoma, viz:

A Yes, Your Honor.

Q Do you still insist that your plea
of guilty is voluntary without
force,
intimidation
or
whatsoever?
A Yes.
Q The court is warning you that
after reception of evidence, the
imposable penalty is mandatory
death?
A Yes, Your Honor.
Q Despite of that, you still insist
on your plea of guilty?
A Yes, Your Honor.
Court Okey, proceed.
Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated
the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of
cases. 11 The bottom line of the rule is that the plea of guilt must be based on a free and
informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the
voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The
questions of the trial court failed to show the voluntariness of the plea of guilt of the appellant
nor did the questions demonstrate appellant's full comprehension of the consequences of his
plea. The records do not reveal any information about the personality profile of the appellant
which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt.
The age, socio-economic status, and educational background of the appellant were not
plumbed by the trial court. The questions were framed in English yet there is no inkling that
appellant has a nodding acquaintance of English. It will be noted too that the trial court did not
bother to explain to the appellant the essential elements of the crime of rape with homicide.
A cursory examination of the questions of the trial court to establish the voluntariness of
appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired if
appellant had physical marks of maltreatment. It did not ask the appellant when he was

c-0262-94
INFORMATION
2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP
MFC, informed this office thru SPO1 W. Garcera alleging that at about
9:00 AM this date when the suspect ARNEL ALICANDO Y BRIONES, 24
yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and
mobbed by the irrate residents of Zone II Rizal, Palapala, GP, in
connection of the Rape with Homicide case wherein the victim KHAZIE
MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who
was discovered dead under the house thereat. Suspect when turned over
to this office and put on lock up cell was also mobbed by the angry
inmates thus causing upon him hematoma contusion on different parts of
his body.
Likewise, the trial court's effort to determine whether appellant had full comprehension of the
consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory
death penalty without explaining the meaning of "mandatory" It did not inform the appellant of
the indemnity he has to pay for the death of the victim. It cautioned appellant there ". . . will be
some effects on your civil rights" without telling the appellant what those "effects" are and what
"civil rights" of his are involved.
Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We
stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot
rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea
of guilt, the trial court must require the prosecution to prove the guilt of the appellant and the
precise degree of his culpability beyond reasonable doubt. This rule modifies prior
jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction
charged in the information without need of further proof. The change is salutary for it enhances
one of the goals of the criminal process which is to minimize erroneous conviction. We share
the stance that "it is a fundamental value determination of our system that it is far worse to
convict an innocent person than let a guilty man go free. 12
Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant,
were inadmissible, yet, were considered by the trial court in convicting the appellant.
Thus, the trial court gave full faith and credit to the physical evidence presented by the
prosecution. To quote its Decision, 13 viz:

xxx xxx xxx

Q And who was that person who

informed you of the suspect?

Further, there are physical evidence to prove Khazie was raped. These
consists of a pillow with bloodstains in its center 14 and the T-shirt 15 of the
accused colored white with bloodstains on its bottom. These physical
evidence are evidence of the highest order. They strongly corroborate the
testimony of Luisa Rebada that the victim was raped.
These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the
Iloilo
City
PNP
as
a
result
of
custodial
interrogation
where appellant verbally confessed to the crime without the benefit of counsel. PO3
Tan admitted under cross-examination, viz: 16
xxx xxx xxx
CROSS-EXAMINATION
BY ATTY. ANTIQUIERA:
Q Mr. Witness, when for the first
time did you see Arnel Alicando?
A June 13, 1994, when I arrested
him.
Q Previous to that you have
never seen him?

A Luisa Rebada.
Q Mrs. Rebada who is the
witness in this case?
A Yes, sir.
Q And you started investigating
Arnel Alicando in the morning of
June 13, 1994?
A Yes, sir.
Q How long did you interrogate
Arnel Alicando in the morning of
June 13, 1994?
A I cannot remember the length
of time I investigated him.
Q Did it take you the whole
morning of June 13, 1994 in
interrogating and investigating
Arnel Alicando?

A Yes, sir.
A Yes, sir.
Q When for the first time did you
start
investigating
Arnel
Alicando?
A After I finished investigating the
body of the victim, Khazie Mae
Penecilla.
Q And that was also after you
were
informed
that
Arnel
Alicando was a suspect in the
raping of Khazie Mae Penecilla?
A Yes, sir
Atty. Antiquiera:

Q And the investigation you

conducted continued in the
afternoon of the same date?
A Yes, sir.
Q The following day, June 14,
1994, you still investigated and
interrogated Arnel Alicando.
A Yes, sir.
Q And when did you stop, finally,
investigating and interrogating
Arnel Alicando?

A After I finished recovering all

the exhibits in relation to this
case.

Q On what hour did you inform

him?
A After the witness identified him.

Q What date did you stop your

investigation?

Q What constitutional rights did

you inform Alicando of?

A June 14, 1994, when I finished

recovering the white T-shirt and
pair of earring.

A The right to remain silent, and

right to get his lawyer and I have
interpreted in Visayan language.

Atty. Antiquiera:
Q And during your investigation
for almost two (2) days the
accused was never represented
by counsel, is that correct?

Q You testified in this case, Mr.

Witness, you never informed the
court that you apprised the
accused of his constitutional
rights, is that correct?

A Yes, sir.

A I apprised him.

Atty. Antiquiera:

Q My question is, during your

testimony before this court under
the direct examination of the
prosecution you never informed
the court that you apprised the
accused of his constitutional
rights?

Q Are you aware of the law that

enjoins a public officer to inform
the person of his constitutional
rights?

Pros. Fama:

That is all, Your Honor.

I did not ask him that question.

How will he answer?
Court:
Sustained.
Atty. Antiquiera:
Q When did you inform, the date
when you informed Alicando of
his Constitutional rights?

A Yes, sir.

It is now familiar learning that the Constitution has stigmatized

as inadmissible evidence uncounselledconfession or admission. Section 12
paragraphs (1) and (3) of Article III of the Constitution provides:
xxx xxx xxx
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice.
If the person cannot afford the services of counsel, he must be provided
with one.These rights cannot be waived except in writing and in the
presence of counsel.
xxx xxx xxx

A On June 13.

(3) Any confession or admission obtained in violation of this or the

preceding section shall be inadmissible against him.

Q You mean to say to conceal the crime?

A Yes, sir.

In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important
confession of the appellant in writing. Neither did he present any writing showing that appellant
waived his right to silence and to have competent and independent counsel despite the blatant
violation of appellant's constitutional right, the trial court allowed his uncounselled confession
to flow into the records and illicitly used it in sentencing him to death.
It is not only the uncounselled confession that is condemned as inadmissible, but also
evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were
evidence derived from the uncounselled confession illegally extracted by the police from the
appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17
xxx xxx xxx
Q Did the accused Arnel Alicando accompany you to
the place of the incident?

Q What else aside from this fish basin, what else did
you recover?
A At around 7 o'clock in the evening he further
pointed to us the old mat and the pillowwherein he
layed the victim Khazie Mae Penecilla
Q You mean to say that you returned back to the
scene of the incident that time?
A It was already night time and it was only Kagawad
Rodolfo Ignacio, my companion, who went to the
place of the incident.

A Yes, sir.

Q You mean to say you were verbally instructed by

the accused?

Q When you arrived at the place of the incident what

did you do?

A Yes, sir.

A He pointed to the fish basin.

Q In what particular place did you recover those

things?

Q Can you identify this fish basin which you said

pointed to you by Arnel Alicando?

A Inside the room where he raped the child.

A Yes, sir.
Q Please point?
A (Witness pointing to the fish basin already marked
as Exhibit "H".)
Q Did you ask the accused what he did with this fish
basin?
A I asked the accused what he did with the fish basin
and he answered that he used the fish basin to cover
Khazie Mae Penecilla when she was already dead.

Q Whose house is that?

A The house of Imelda Alicando.
Q The wife of Romeo Alicando?
A Yes, sir.
Q In what particular place is that situated?
A Inside the room where the accused was sleeping at
Rizal-Palapala.
Pros. Fama:

Pros. Fama:

Q You mean to say inside that room the victim was

raped by the accused?
A Yes, sir.

Pros. Fama:
Q You mean to say you returned back on June 14,
you recovered the items accompanied by the
accused?

Q Can you point that pillow which you said you

recovered inside the room of Imelda Alicando?

A No more, I only followed his direction.

A Yes, sir.

Q He made verbal direction to you?

Q And the mat?

A Yes, sir.

A (Witness taking out from the fish basin the mat and
pillow.)

Q Can you please show us the white t-shirt?

Q Did you find something on the pillow?

A (Witness taking out a white t-shirt from the fish

basin.)

A The pillow have bloodstain in the middle.

Q Please examine that white t-shirt?

. . This was already marked as Exhibit "J", Your

Honor and the mat as Exhibit "I".

A The t-shirt have a bloodstain.

Q Aside from this what did you recover from the place
of incident?
A On June 14, 1994, at about 10:00 o'clock in the
morning the accused Arnel Alicando further informed
me that he kept the gold earring of the victim and her
clothes inside the room of the house of Imelda
Alicando.
Q Where?
A I saw the clothes of Khazie Mae Penecilla inside
the room where the rape took place hanged on the
clothes line. And I found the pair of earring at the
bamboo post of the fence.
Court:
Q Where is that bamboo post of the fence situated?
A Around the fence of Imelda Alicando situated at the
from gate on the right side.

We have not only constitutionalized the Miranda warnings in our jurisdiction. We

have also adopted the libertarian exclusionary rule known as the "fruit of the
poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated
case of Nardone v. United States. 18 According to this rule, once the primary source
(the "tree") is shown to have been unlawfully obtained, any secondary or derivative
evidence (the " fruit " ) derived from it is also inadmissible. 19 Stated otherwise,
illegally seized evidence is obtained as a direct result of the illegal act, whereas
the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit
of the poisonous tree" is at least once removed from the illegally seized evidence,
but it is equally inadmissible. The rule is based on the principle that evidence
illegally obtained by the State should not be used to gain other evidence because
the originally illegally obtained evidence taints all evidence subsequently
obtained. 20 We applied this exclusionary rule in the recent case of People
vs.Salanga, et al., 21 a ponencia of Mr. Justice Regalado. Salanga was the appellant
in the rape and killing of a 15-year old barrio lass. He was, however, illegally
arrested. Soldiers took him into custody. They gave him a body search which
yielded a lady's underwear. The underwear was later identified as that of the victim.
We acquitted Salanga. Among other reasons , we ruled that "the underwear
allegedly taken from the appellant is inadmissible in evidence, being a socalled "fruit of the poisonous tree." 22
But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the
trial court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that
the victim was raped." For one, there was no basis for the trial court to conclude that the stains
on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were not examined

by any expert. To hold that they were human bloodstains is guesswork. For another, there was
no testimony that the stains were caused by either the blood of the appellant or the victim. In
addition, there was no testimony that the t-shirt was the one worn by the appellant when he
allegedly committed the crime. It must also be noted that it is not unnatural for appellant to
have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself, the
father of the victim, testified he knows the appellant "becausehe used to accompany me
during butchering of animals." 23
The burden to prove that an accused waived his right to remain silent and the right to counsel
before making a confession under custodial interrogation rests with the prosecution. It is also
the burden of the prosecution to show that the evidence derived from confession is not tainted
as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing
evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode
of waiver the waiver must be in writing and in the presence of counsel. In the case at bar,
the records show that the prosecution utterly failed to discharge this burden. It matters not that
in the course of the hearing, the appellant failed to make a timely objection to the introduction
of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy
burden of proof that rested on the prosecution.
There is no and there ought not to be any disagreement on basic principles. The Court should
be concerned with the heinousness of the crime at bar and its despicable perpetration against
a 4-year old girl, an impersonation of innocence itself. The Court should also be concerned
with the multiplication of malevolence in our midst for there is no right to be evil, and there are
no ifs and buts about the imposition of the death penalty as long as it remains unchallenged as
part of the laws of our land. These concerns are permanent, norms hewn in stone, and they
transcend the transitoriness of time.

August 28, 1995

G.R. No. 111386
METAL FORMING CORPORATION, petitioner, vs. OFFICE OF THE PRESIDENT,
represented by the EXECUTIVE SECRETARY, VIRGILIO M. DEL ROSARIO and
CORAZON PAREDES-DEL ROSARIO, respondents.

DECISION
BELLOSILLO, J.:On 21 November 1990 the private respondents, spouses Virgilio M.
del Rosario and Corazon Paredes-del Rosario, filed a letter-complaint with the
Department of Trade and Industry (DTI) charging petitioner METAL FORMING
CORPORATION with violation of Sec. 3 of Act No. 3740, An Act to Penalize
Fraudulent Advertising, Mislabeling or Misbranding of any Product, Stocks, Bonds,
Etc. Specifically it provides:

Bellosillo, J.:

On 21 November 1990 the private respondents, spouses Virgilio M. del Rosario and
Corazon Paredes-del Rosario, filed a letter-complaint with the Department of Trade
and Industry (DTI) charging petitioner METAL FORMING CORPORATION with
violation of Sec. 3 of Act No. 3740, An Act to Penalize Fraudulent Advertising,
Mislabeling or Misbranding of any Product, Stocks, Bonds, Etc. Specifically it

Be that as it may, our commitment to the criminal justice system is not only to convict and
punish violators of our laws. We are equally committed to the ideal that the process of
detection, apprehension, conviction and incarceration of criminals should be accomplished
with fairness, and without impinging on the dignity of the individual. In a death penalty case,
the Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction
will leave a lasting stain in our escutcheon of justice.

provides:

Sec. 3. It shall be unlawful for any person, firm or corporation, either as principal or
agent, in any handbill, billboard, sign, pamphlet, circular, projected lantern slides,
or any other form of advertising whatsoever printed, displayed, or circulated in the

In sum, the Court cannot send the appellant to die in the electric chair on the basis of the
procedural irregularities committed by, and the inadmissible evidence considered by the trial
court. In Binabay vs. People, et al., 24ponencia of Mr. Chief Justice R. Concepcion, this Court
held that no valid judgment can be rendered upon an invalid arraignment. Since in the case at
bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness
to the appellant, and in justice to the victim, the case has to be remanded to the trial court. for
further proceedings. There is no philosophy of punishment that allows the State to kill without
any semblance of fairness and justice.
IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel
Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of death
is annulled and set aside and the case is remanded to the trial court for further proceedings.
No costs.

Philippine Islands, to misrepresent the character, value, properties or condition of

any article offered or exposed for sale, barter, or exchange, or of the materials of
which the article is composed.

The spouses alleged, among other things, that in selling to the public roofing
materials known as Banawe shingles, petitioner made representations on the
durability of the product and the sturdiness of its installation. Aside from massive
advertisements in print media and television, it also distributed brochures to its
prospective customers containing the same representations.

The alleged advertisements were not submitted in evidence at the DTI except a

also misrepresented that its product was strong when there (was) wind and storm

copy of a brochure which was among those distributed by petitioner to prospective

pressure for the reason that -

customers and which prompted private respondents to buy the Banawe shingles
and had them installed at their residence. On the first page of the brochure

A careful reading of the pertinent portion of the brochure, supra, readily reveals

appears the following: STRUCTURALLY SAFE AND STRONG

that what (petitioner) represented is that its (product) acts as a single unit
against wind and strong (storm?) pressure due to the strong hook (action) on its

. . . The BANAWE METAL TILE structure acts as a single unit against wind and storm

overlaps.

pressure due to the strong hook action on its overlaps. 2 Barely two (2) months
after completion of the installation, portions of the roof of private respondents

Nowhere is it mentioned in the brochure that the structure is strong when there is

were blown away by strong winds brought about by typhoon Ruping.

wind and storm pressure.

On 29 May 1991 the DTI rendered a decision ordering petitioner to pay an

As correctly pointed out by (petitioner), this is already misinterpretation or a

administrative fine of P10,000.00, otherwise, for failure to do so within ten (10)

strained interpretation, to say the least. While the term strong is indeed found in

days from finality of the decision, the business name registration of petitioner, if

said brochure, it was there mentioned only to describe the hooks action on the

any, would be deemed suspended and its establishment closed until the fine was

overlaps. 7

fully paid. 3 Its decision was based on the finding that petitioner misrepresented
that (a) the Banawe metal tile structure was strong against wind and storm

Petitioner raises as an issue whether the statement in its brochure that the

pressure, and (b) it acted as a single unit against wind and storm pressure.

Banawe metal tile acts as a single unit against wind and storm pressure due to the

According to the DTI, letter (a) was a misrepresentation as far as the metal tile

strong hook action on its overlaps is a misrepresentation within the contemplation

structure installed at the residence of private respondents was concerned because

of Sec. 3 of Act No. 3740 simply because a section or portion of the roof of private

as the records showed, strong winds blew off part of the structure/roof; and letter

respondents was blown away by a strong typhoon.

(b) was likewise a misrepresentation as far as the structure installed at the

residence of private respondents was concerned because the records showed that
the structure acted in parts when strong winds blew. A part remained while
another part was blown off. Therefore petitioner misrepresented the character of
the merchandise offered. 4

Petitioner asseverates that under Art. 1174 of the Civil Code it should not be made
responsible for the adverse consequences of a fortuitous event such as typhoon
Ruping which, as admitted by private respondents, caused the blowing away of a
section or portion of their roof. Besides, its product acts as a single unit specifically
against storm pressure. A cursory examination of the questioned statement in the

On 9 January 1992 the motion to reconsider the decision was denied. 5

brochure shows that even without availing of said provision there could not have
been any misrepresentation under Sec. 3 of Act No. 3740. What appears to be

On 30 April 1993, on appeal to respondent Office of the President, the decision of

emphasized in the brochure is the strong hook action on the overlaps of the tiles.

the DTI was affirmed 6 in toto. On 18 June 1993 the motion for its reconsideration

There is no evidence whatsoever that single panels of the tiles from the same

was denied. On 2 August 1993 the second motion for reconsideration was likewise

section or portion were blown away while other panels in the same section or

denied except that public respondent reversed its previous finding that petitioner

portion remained; or that individual panels from different sections or portions were
blown away. It is common knowledge in the trade that roofs are not monolithically

constructed but are made up of sections. A section can be entirely blown off

Contrary to petitioners pretension, the phrase against wind and storm pressure

without affecting the others. Consequently even if only one section or portion was

is not couched in specific terms because as correctly pointed out by the Office of

blown away, it can still be reasonably concluded that the tiles in that section acted

the Solicitor General -

as a single unit.
. . . . in deciding whether or not to buy the subject roof tiles being advertised by
The claim of petitioner that roofs are made up of sections such that even if only

petitioner, it is reasonable to assume that buyers, like private respondents, would

one section or portion is blown away the tiles in that section can be said to have

consider (said) phrase . . . as referring to all kinds of weather disturbances being

acted as a single unit, may appear to be a sound argument. Nevertheless, it is a

experienced in our country during the rainy season, be it a mere tropical

defense that should have been established at the administrative level. We take

depression, a storm or even a typhoon. 10

into account the finding of the DTI, that a part of the roof was blown away while a
part remained. There was no reference to a section or distinct portion of the roof

In this regard, public respondent opined, which we sustain, that -

that was blown away nor to a section or distinct portion that remained. Public
respondent arrived at the same finding. Whether the part that was blown away

(Petitioner) cannot place undue reliance on the distinction between or among the

and that which remained constitute sections is a question of fact that we will not

terms storm, typhoon or cyclone because it itself had caused the

determine here. This Court is not a trier of facts. Moreover, we agree with the

misrepresentations to be couched in general terms. Also, considering the weather

observation of the Solicitor General that -

situation in the country where storms and typhoons are not a rare or unusual
occurrence, these terms ought to, as they should only be, understood as

Petitioner (gives) a restricted interpretation of its statement that the structure of

comprehending and referring practically to the same thing, at least insofar as the

its roof tiles has the capacity to act as a single unit . . . Surely, in buying the

jural effects of misrepresentations (petitioners) are concerned. 11

subject roof tiles, the private respondents correctly relied on petitioners

representations as it would be commonly and reasonably interpreted by the

On a different angle, petitioner avers that under Art. 1174 of the Civil Code it

buying public, viz., that since its structure acts as a single unit, wind and storm

should not be made responsible for the adverse consequences of a fortuitous

pressure would not be able to blow away any part or portion thereof. 8

event such as the typhoon which caused the section or portion of private
respondents roof to be blown away.

Petitioner harps on the distinction between a tropical storm and a typhoon.

According to the Philippine Atmospheric, Geophysical and Astronomical Services

Article 1174 provides that subject to certain exceptional, no person shall be for

Administration, the maximum winds about the center of the disturbance (tropical

those events which could not be foreseen, or which though foreseen were

storm) range from 64 to 117 kilometers per hour (kph) or 18 to 32 meters per

inevitable. A fortuitous event presents the following characteristics: (a) the cause

second (mps) or 34 to 64 knots, while the maximum winds about the center of the

of the unforeseen and unexpected occurrence, or the failure of the debtor to

disturbance (typhoon) are 118 kilometers per hour or 33 meters per second or 65

comply with his obligations, must be independent of the human will; (b) it must be

knots or more. 9

impossible to foresee the event which constitutes the caso fortuito, or if it can be
foreseen, it must be imposible, to avoid; (c) the occurrence must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner; and,

(d) the obligor must be free from any participation in the aggravation of the injury

By reason of the special knowledge and expertise of the DTI and public respondent

resulting to the creditor.

over matters falling under their jurisdiction, they are in a better position to pass
judgment thereon and their findings of fact in that regard are generally accorded

Based on the foregoing, in order that a fortuitous event may exempt a person from

respect, if not with finality, by the courts. 15 Furthermore, petitioner failed to show

liability, it is necessary that he be free from negligence. An act of God cannot be

any grave abuse of discretion on the part of public respondent in affirming the

urged for the protection of a person who has been guilty of gross negligence in not

ruling of the DTI. There is no reason indeed to rule otherwise.

trying to avert its results. When the negligence of a person concurs with an act of
God in producing a loss, such person is not exempt from liability by showing that

We therefore uphold the finding of the DTI and public respondent that petitioner

the immediate cause of the damage was the act of God. 12

misrepresented the character of its product which is prohibited under Sec. 3 of Act.
No. 3740. The Banawe Metal Tile structure did not act as a single unit against wind

As correctly viewed by public respondent, although the occurrence of a typhoon is

and storm pressure due to the weak hook action on its overlaps. However we note

a fortuitous event which by itself might have exempted petitioner from liability to

that Sec. 6 of said Act, as amended by C.A. 46, provides the penalty of fine of not

private respondents -

less than P200.00 and not more than P5,000.00. Conformably therewith, we have
no choice but to reduce the fine imposed on petitioner from P10,000.00 to

. . . . it cannot efface the fundamental fact that (petitioner) acted in bad faith

P5,000.00.

and/or with gross negligence in failing to deliver the necessary accessories for the
proper installation of the structure . . . . and actually installed inferior roofing

WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of

materials at (private respondents) residence, in violation of the proper installation

jurisdiction, the petition is DISMISSED. The decision dated 30 April 1993, the order

procedure expressly specified in the formers brochures and advertisements for

dated 18 June 1993, and the resolution dated 2 August 1993 of public respondent

installation, i.e., the metal tile attached to the roof panels should be by two (2)

are AFFIRMED except as to the fine of P10,000.00 which is reduced to P5,000.00.

self-drilling screws for one (1) metal cleat. However, instead of conforming with
this procedure, (petitioner) attached some of the metal cleats with only one (1)inch ordinary nail each and others were fastened with only one (1) wood screw

[G.R. No. 129058. March 29, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PAULINO
SEVILLENO Y VILLANUEVA alias TAMAYO, accused-appellant.

each. 13

To a large extent, the capacity of petitioners roof tiles to act as a single unit

DECISION
BELLOSILLO, J.:

depends on the strong hook action on the overlaps of the individual parts which
comprise the whole structure. However, as inferred by the Solicitor General -

. . . . there can only be a strong hook action if the subject roof tiles were properly
installed by petitioner complete with all the necessary accessories thereto . . . . 14

As it turned out, the tiles were improperly installed thus contributing to the
damage to private respondents roof.

By pleading guilty to the rape and killing of a 9-year old girl a death sentence would seem
inevitable. But a mere plea of guilt is not sufficient for conviction as the court must first assure itself
that the accused fully understood the consequences of his plea. In the instant case, the trial court failed
to conduct a searching inquiry into the voluntariness of his admission of guilt and that he fully
comprehended the implications thereof. As the court a quo inadequately discharged its duty of
conducting a searching inquiry, the plea of guilt to a capital offense therefore inevitably became null and
void.[1]
On 22 July 1995, at around 10:00 o'clock in the morning, Paulino Sevilleno y Villanueva
alias Tamayo went to Barangay Guadalupe, San Carlos City. He brought with him bread and ice candy

for his 9-year old and 8-year old nieces, Virginia and Norma, both surnamed Baquia. He then invited
Virginia to accompany him to Sitio Guindali-an "to see (a) beta show." [2] To reach the place, Paulino and
Virginia passed through the sugarcane fields.

Atty. Agravante: Respectfully appearing for the accused, ready, you Honor.

At around 11:00 o'clock that same morning, Rogelio Baquia, father of Virginia and Norma,
arrived. Not seeing Virginia in their house, Rogelio asked Norma where her sister was. After learning
from her that Virginia had gone with accused Paulino to Sitio Guindali-an, Rogelio immediately set out
to look for them.

Stenographer's Observation: Accused was arraigned in a Cebuano language duly known and
understood by him, pleaded GUILTY.

Rogelio failed to find his daughter upon reaching Sitio Guindali-an; instead, he bumped into the
accused. When asked about Virginia the accused denied knowing where she was. However, Rogelio
noticed that the accused had nail scratches on his neck and a wound on his left cheek.

Court: Arraign the accused.

COURT (to accused): Do you understand your plea of guilty?

Accused: Yes, sir.
Q. Do you know that your plea of guilty could bring death penalty?

Rogelio continued his search. He was accompanied by Eugenio Tiongson, a relative of the
accused. The next day they met the accused at the house of the former barangay captain of Sitio
Guindali-an, Paeng Lopez. Eugenio asked Paulino where Virginia was. This time the accused replied
that she was in a sugarcane field known as "Campo 9," still a part of Guadalupe, like Sitio Guindalian. Accompanied by some police officers, Rogelio and Eugenio proceeded to "Campo 9." There they
found Virginia covered with dried leaves, her dress raised to her armpits; the lower portion of her torso
was naked; her legs were spread apart. She had wounds on various parts of her body. She was dead.[3]
Dr. Arnel Laurence Q. Portuguez, City Health Officer of San Carlos City, autopsied the body of
Virginia. His postmortem examination showed these findings: linear abrasion over hematoma, 3.0 x 2.0
cm., right superior anterior neck; linear abrasion over hematoma, 2.5 x 3.0 cm., left superior anterior
neck; hematoma 9.0 x 4.0 cm., right inguinal area; hematoma 9.0 x 5.0 cm., left inguinal area;
superficial hymenal laceration 0.5 cm., at 12 o'clock position, with clot formation at intuitus; abrasion
5.5 x 4.0 cm., left superior gluteal area; abrasion 5.0 x 3.0 cm., right superior gluteal area; abrasion 6.0 x
2.0 cm., right inferior lateral gluteal area; vaginal smear showing absence of sperm cells except pus
cells and epithelial cells. Cause of death: asphyxia secondary to strangulation. [4] Based on his findings,
Dr. Portuguez concluded that Virginia was raped and then strangled to death.
When news of the gruesome rape and killing spread around the community, the local residents
immediately arrested the accused Paulino Sevilleno and turned him over to the police
authorities. Thereafter, on 25 July 1995, the accused was charged with rape with homicide for having
carnal knowledge of Virginia Baquia, a minor, 9 years of age, by means of force, violence and
intimidation and against her will, and after ravishing her, with intent to hide his identity and to prevent
discovery thereof, with intent to kill, strangled her which directly caused her death.[5]
The arraignment where the accused was represented by Atty. Vic Agravante of the Public
Attorney's Office proceeded thus Court: Call the case x x x x
Interpreter: Appearances?.
Pros. Tabinas: Appearing for the government, ready for arraignment.

A. Yes, sir.
Court (to Pros. Tabinas): You still have to present your evidence.
Pros. Tabinas: Yes, your honor.[6]
The hearing for the presentation of the evidence for the prosecution was scheduled on 31 August
1995. It was however reset several times. On 10 October 1995 the accused manifested that he had no
counsel. Thus, the trial court ordered the Public Attorney's Office to provide a counsel de oficio for
him. The next hearing was set on 21 November 1995.[7]
On 28 October 1995, taking advantage of typhoon "Pepang" that struck the island of Negros, the
accused escaped from detention, of which the Presiding judge was accordingly informed.
The records show that Atty. Vic Agravante assisted the accused during the arraignment only. In
the succeeding hearings, Atty. Danilo Pabalinas, another lawyer of PAO, represented the accused. But
after the escape Atty. Pabalinas sought permission from the court to be released from his duty to assist
the accused. The court then directed that the accused be tried in absentia and counsel was relieved from
his responsibility to his client and the court.[8]
The prosecution presented the examining physician as well as Maria Lariosa and Norma
Baquia. Notably, these witnesses were not cross-examined because, as already adverted to,
Atty. Pabalinas earlier excused himself from the case. Neither did the court appoint another counsel for
the accused.
The next hearing was set on 30 January 1996. However, for various reasons, the hearing was
reset to 13 March 1996, 21 April 1996, 18 June 1996 and 17 July 1996.
Meanwhile, on 10 July 1996 the Jail Warden of San Carlos City reported to the court that the
accused had been recaptured.[9]

Atty. Florentino Saldavia, also of PAO, was appointed counsel de oficio for the accused. On 17
July 1996 the prosecution presented Rogelio Baquia as its last witness. Atty. Saldavia cross-examined
Rogelio but his questions were only considered token, and even irrelevant. Then the prosecution rested.

On 6 March 1997 the Regional Trial Court-Br. 57, San Carlos City, rendered its decision finding
the accused guilty of rape with homicide and sentencing him to death and to pay the heirs of Virginia
Baquia -P50,000.00 plus costs.[11]

On 28 August 1996, the date set for the presentation of the evidence for the defense,
Atty. Saldavia moved that the hearing be reset as he was not feeling well. On 19 November 1996, Atty.
Saldavia again moved for postponement and the hearing was reset to 3 December 1996 on which date,
instead of presenting evidence, Atty. Saldavia manifested that he was submitting the case for decision
but invoking the plea of guilt of the accused as a mitigating circumstance. As recorded, the hearing
proceeded thus -

This case is now on automatic review. The defense contends that the court a quo erred in
convicting the accused and imposing upon him the penalty of death as it failed to observe the required
procedure for cases where the accused pleads guilty to a capital offense when arraigned. [12] The defense
also argues that the arraignment conducted by the trial court was null and void as it did not conduct a
"searching inquiry" before accepting the plea of guilt and sentencing the accused to death. It concludes
that since the arraignment was fatally defective and not in accordance with law, the case must be
remanded to the court of origin for the proper arraignment of the accused before the capital punishment
may be imposed.

Court: Call the case x x x x

Interpreter: Appearances.
Pros. Tabinas: Appearing for the government.
Atty. Saldavia: For the accused. Your honor please, this is already the turn of the defense to
present evidence. He already pleaded GUILTY. We have no mitigating circumstance to
prove except the plea of guilty. I believe there is no need of presenting evidence, he already
pleaded guilty.
Court: (to Atty. Saldavia): You will rest the case?
Atty. Saldavia: Yes, your honor.
Pros. Tabinas: You will invoke the mitigating circumstance of plea of guilty?
Atty. Saldavia: Yes.
Pros. Tabinas: We have no objection to that.
Court: Order.
When this case was called for the presentation of evidence for the accused, counsel for the accused
manifested that he had no evidence to present in favor of the accused except the plea of GUILTY made
in open court.
In view thereof, the above-entitled case is hereby submitted for decision based on the evidence
presented by the prosecution without the accused presenting evidence in his behalf except the plea of
GUILTY which is admitted by the prosecution.
WHEREFORE, the above-entitled case is hereby submitted for decision.
SO ORDERED.[10]

We sustain the defense. Under Sec. 3, Rule 116, of the Revised Rules on Criminal Procedure,
when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the
voluntariness and full comprehension of the consequences of his plea. It must also require the
prosecution to prove his guilt and the precise degree of his culpability. If the accused so desires he may
also present evidence in his behalf. This procedure is mandatory and a judge who fails to observe it
commits grave abuse of discretion.[13]
The questions propounded by the trial judge during arraignment hardly satisfied the requisite
searching inquiry. Regrettably, there were only two (2) questions propounded to the accused: First. Do
you understand your plea of guilt? Second. Do you know that your plea of guilt could bring death
penalty? In every case where the accused enters a plea of guilty to a capital offense, especially where
he is an ignorant person with little or no education, the proper and prudent course to follow is to take
such evidence as are available and necessary in support of the material allegations of the information,
including the aggravating circumstances therein enumerated, not only to satisfy the trial judge himself
but also to aid the Supreme Court in determining whether the accused really and truly understood and
comprehended the meaning, full significance and consequences of his plea.[14]
In the instant case, the trial court did not bother to explain the essential elements of the crime of
rape with homicide with which the accused was charged. On the same note, the trial judge also failed to
inform the accused the certainty by which the death penalty would be imposed on him and the fact that
he would also be made to indemnify the heirs of his victim. As a result, the accused was not properly
accorded his fundamental right to be informed of the precise nature of the accusation leveled against
him.[15] Thus, it is with apprehension that ruling for the affirmance of the decision in this case will
prejudice the due observance of the fundamental requirements of fairness and due process. [16] The
constitutional rights of the accused are for the protection of the guilty and of the innocent alike. Only
with the assurance that even the guilty shall be given the benefit of every constitutional guaranty can the
innocent be secure in the same rights.[17]
Trial courts must exercise meticulous care in accepting a plea of guilty in a capital
offense. Judges are duty-bound to be extra solicitous in seeing to it that when an accused pleads guilty
he understands fully the meaning of his plea and the import of his inevitable conviction. [18] Courts must
proceed with more care where the possible punishment is in its severest form - death - for the reason
that the execution of such a sentence is irrevocable. Experience has shown that innocent persons have
at times pleaded guilty.[19] Only a clear, definite and unconditional plea of guilty by the accused must be
accepted by trial courts.[20] There is no such rule which provides that simply because the accused

pleaded guilty to the charge that his conviction should automatically follow. [21] A judge should always
be an embodiment of competence.[22] As an administrator of justice, it is imperative that the trial judge
carry out his duties ably and competently so as not to erode public confidence in the judiciary.
It is quite unfortunate that Attys. Vic Agravante, Danilo Pabalinas and Florentino Saldavia, all of
PAO, were remiss in their duties as defenders of the accused. Atty. Agravante did not take time to
explain to his client the nature of the crime of which he was charged and the gravity of the
consequences of his plea. Instead, he readily agreed to the accused pleading guilty to a capital
offense. In the succeeding hearings, Atty. Pabalinas was supposed to assist the accused ably but
miserably failed. When the case was called and appearances noted, the trial judge informed the parties
that the accused had escaped from detention. It was then that the prosecution and the defense, including
the trial court, agreed that the accused would be tried in absentia. Then, at this juncture,
Atty. Pabalinas sought to be relieved of his responsibilities as counsel de oficio which, unfortunately,
the court also granted. The court proceeded with the presentation of three (3) prosecution witnesses
who testified but were never cross-examined because Atty. Pabalinas already left the courtroom,
apparently with the consent of the trial court. Nobody was assigned to replace
Atty. Pabalinas. Consequently, not only was the accused tried in absentia, he was also tried without the
assistance of counsel.
When the prosecution rested its case, Atty. Saldavia of the PAO asked for the postponement of
the succeeding hearings not only once but thrice allegedly because he was not feeling
well. Interestingly, when the time came for him to adduce evidence in behalf of the accused, he
manifested that since his client had already pleaded guilty he would no longer present any evidence. He
only invoked the mitigating circumstance of plea of guilty.
The plea of guilty as a mitigating circumstance is misplaced. Not under any circumstance would
any admission of guilt affect or reduce the death sentence.[23] Art. 335 of the Revised Penal Code
prescribes the penalty of death when by reason or on the occasion of the rape, a homicide is
committed. Death is a single indivisible penalty and corollary to Art. 63 of the Revised Penal Code, in
all cases in which a single indivisible penalty is prescribed, it shall be applied by the courts regardless of
any mitigating or aggravating circumstance that may have attended the commission of the offense.
The court below also erred in disregarding the testimony of Norma Baquia "for the reason that
her testimony failed to establish that the incident happened within the territorial jurisdiction of this
court."[24] The court did not consider her testimony purportedly because she only testified that her sister
Virginia went with the accused to Guindali-an without specifying as to what municipality or city it was
part of.[25] Again, this is error. Section 1, Rule 129 of the Rules of Court requires courts to take judicial
notice, without the introduction of evidence, of the existence and geographical divisions of our
country. There is only one Sitio Guindali-an, Brgy. Guadalupe, San Carlos City (Negros Occidental).
We cannot right finis to this discussion without making known our displeasure over the manner
by which the PAO lawyers dispensed with their duties. All three (3) of them displayed manifest
disinterest on the plight of their client. They lacked vigor and dedication to their work. Atty. Agravante
did not explain to the accused the nature of the crime of which he was charged and the consequences of
his plea. Atty. Pabalinas, instead of assisting the accused, hastily left the courtroom after obtaining
leave while the prosecution was presenting its three (3) witnesses. Resultingly, all three (3) witnesses
were never cross-examined. On the other hand, Atty. Saldavia moved for the postponement of the
scheduled hearings during which he was supposed to present evidence for the defense; worse, on the

last scheduled hearing he submitted the case for decision without presenting evidence. In short, no
evidence was ever presented for the defense. And, as if to compound his deficiency with ignorance,
Atty. Saldavia relied on his client's plea of guilt in the mistaken belief that it would modify and reduce
to reclusion perpetua the imposable penalty of death.
Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client
with utmost dedication, competence and diligence. He must not neglect a legal matter entrusted to him,
and his negligence in this regard renders him administratively liable. [26] Obviously, in the instant case,
the aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the
accused. Instead, they haphazardly performed their function as counsel de oficio to the detriment and
prejudice of the accused Sevilleno, however guilty he might have been found to be after
trial. Inevitably, this Court must advise Attys. Agravante, Pabalinas and Saldavia to adhere closely and
faithfully to the tenets espoused in the Code of Professional Responsibility; otherwise, commission of
any similar act in the future will be severely sanctioned.
WHEREFORE, the 6 March 1997 Decision of the Regional Trial Court-Br. 57, San Carlos City
(Negros Occidental), in Crim. Case No. 129058, convicting the accused PAULINO SEVILLENO Y
VILLANUEVA aliasTamayo of Rape with Homicide and sentencing him to DEATH is
ANNULLED and SET ASIDE and the case is REMANDED to the court of origin for the proper
arraignment and trial of the accused until terminated.
[G.R. No. 120466. May 17, 1999]
COCA COLA BOTTLERS PHILS., INC., petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and RAMON B. CANONICATO, respondents.
DECISION
BELLOSILLO, J.:
This petition for certiorari under Rule 65 of the Revised Rules of Court assails the 3 January
1995 decision[1] of the National Labor Relations Commission (NLRC) holding that private respondent
Ramon B. Canonicato is a regular employee of petitioner Coca Cola Bottlers Phils. Inc. (COCA COLA)
entitled to reinstatement and back wages. The NLRC reversed the decision of the Labor Arbiter of 28
April 1994[2] which declared that no employer-employee relationship existed between COCA COLA and
Canonicato thereby foreclosing entitlement to reinstatement and back wages.
On 7 April 1986 COCA COLA entered into a contract of janitorial services with Bacolod
Janitorial Services (BJS) stipulating[3] among others That the First Party (COCA COLA) desires to engage the services of the Second Party (BJS), as an
Independent Contractor, to perform and provide for the maintenance, sanitation and cleaning services
for the areas hereinbelow mentioned, all located within the aforesaid building of the First Party x x x x
1. The scope of work of the Second Party includes all floors, walls, doors, vertical and horizontal areas,
ceiling, all windows, glass surfaces, partitions, furniture, fixtures and other interiors within the
aforestated covered areas.

2. Except holidays which are rest days, the Second Party will undertake daily the following: 1)
Sweeping, damp-mopping, spot scrubbing and polishing of floors; 2) Cleaning, sanitizing and
disinfecting agents to be used on commodes, urinals and washbasins, water spots on chrome and other
fixtures to be checked; 3) Cleaning of glass surfaces, windows and glass partitions that require daily
attention; 4) Cleaning and dusting of horizontal and vertical surfaces; 5) Cleaning of fixtures, counters,
panels and sills; 6) Clean, pick-up cigarette butts from sandburns and ashtrays and trash receptacles; 7)
Trash and rubbish disposal and burning.
In addition, the Second Party will also do the following once a week, to wit: 1) Cleaning, waxing and
polishing of lobbies and offices; 2) Washing of windows, glasses that require cleaning; 3) Thorough
disinfecting and cleaning of toilets and washrooms.
3. The Second Party shall supply the necessary utensils, equipment and supervision, and it shall only
employ the services of fifteen (15) honest, reliable, carefully screened, cooperative and trained
personnel, who are in good faith, in the performance of its herein undertaking x x x x
4. The Second Party hereby guarantees against unsatisfactory workmanship. Minor repair of comfort
rooms are free of charge provided the First Party will supply the necessary materials for such repairs at
its expense. As may be necessary, the Second Party shall also report on such part or areas of the
premises covered by this contract which may require repairs from time to time x x x (italics supplied).
Every year thereafter a service contract was entered into between the parties under similar terms
and conditions until about May 1994.[4]
On 26 October 1989 COCA COLA hired private respondent Ramon Canonicato as a casual
employee and assigned him to the bottling crew as a substitute for absent employees. In April 1990
COCA COLA terminated Canonicato's casual employment. Later that year COCA COLA availed of
Canonicato's services, this time as a painter in contractual projects which lasted from fifteen (15) to
thirty (30) days.[5]
On 1 April 1991 Canonicato was hired as a janitor by BJS [6] which assigned him to COCA COLA
considering his familiarity with its premises. On 5 and 7 March 1992 Canonicato started painting the
facilities of COCA COLA and continued doing so several months thereafter or so for a few days every
time until 6 to 25 June 1993.[7]
Goaded by information that COCA COLA employed previous BJS employees who filed a
complaint against the company for regularization pursuant to a compromise agreement, [8] Canonicato
submitted a similar complaint against COCA COLA to the Labor Arbiter on 8 June 1993. [9] The
complaint was docketed as RAB Case No. 06-06-10337-93.
Without notifying BJS, Canonicato no longer reported to his COCA COLA assignment starting
29 June 1993. On 15 July 1993 he sent his sister Rowena to collect his salary from BJS. [10] BJS released
his salary but advised Rowena to tell Canonicato to report for work. Claiming that he was barred from
entering the premises of COCA COLA on either 14 or 15 July 1993, Canonicato met with the
proprietress of BJS, Gloria Lacson, who offered him assignments in other firms which he however
refused.[11]

On 23 July 1993 Canonicato amended his complaint against COCA COLA by citing instead as
grounds therefor illegal dismissal and underpayment of wages. He included BJS therein as a corespondent.[12] On 28 September 1993 BJS sent him a letter advising him to report for work within three
(3) days from receipt, otherwise, he would be considered to have abandoned his job. [13]
On 28 April 1994 the Labor Arbiter ruled that: (a) there was no employer-employee relationship
between COCA COLA and Ramon Canonicato because BJS was Canonicato's real employer; (b) BJS
was a legitimate job contractor, hence, any liability of COCA COLA as to Canonicato's salary or wage
differentials was solidary with BJS in accordance with pars. 1 and 2 of Art. 106, Labor Code; (c) COCA
COLA and BJS must jointly and severally pay Canonicato his wage differentials amounting
to P2,776.80 and his 13th month salary of P1,068.00, including ten (10%) percent attorney's fees in the
sum of P384.48. The Labor Arbiter also ordered that all other claims by Canonicato against COCA
COLA be dismissed for lack of employer-employee relationship; that the complaint for illegal dismissal
as well as all the other claims be likewise dismissed for lack of merit; and that COCA COLA and BJS
deposit P4,429.28 with the Department of Labor Regional Arbitration Branch Office within ten (10)
days from receipt of the decision.[14]
The NLRC rejected on appeal the decision of the Labor Arbiter on the ground that the janitorial
services of Canonicato were found to be necessary or desirable in the usual business or trade of COCA
COLA. The NLRC accepted Canonicato's proposition that his work with the BJS was the same as what
he did while still a casual employee of COCA COLA. In so holding the NLRC applied Art. 280 of the
Labor Code and declared that Canonicato was a regular employee of COCA COLA and entitled to
reinstatement and payment of P18,105.10 in back wages.[15]
On 26 May 1995 the NLRC denied COCA COLA's motion for reconsideration for lack of merit.
Hence, this petition, assigning as errors: (a) NLRC's finding that janitorial services were necessary
and desirable in COCA COLA's trade and business; (b) NLRC's application of Art. 280 of the Labor
Code in resolving the issue of whether an employment relationship existed between the parties; (c)
NLRC's ruling that there was an employer-employee relationship between petitioner and Canonicato
despite its virtual affirmance that BJS was a legitimate job contractor; (d) NLRC's declaration that
Canonicato was a regular employee of petitioner although he had rendered the company only five (5)
months of casual employment; and, (e) NLRC's order directing the reinstatement of Canonicato and the
payment to him of six (6) months back wages.[17]
[16]

We find good cause to sustain petitioner. Findings of fact of administrative offices are generally
accorded respect by us and no longer reviewed for the reason that such factual findings are considered
to be within their field of expertise. Exception however is made, as in this case, when the NLRC and
the Labor Arbiter made contradictory findings.
We perceive at the outset the disposition of the NLRC that janitorial services are necessary and
desirable to the trade or business of petitioner COCA COLA. But this is inconsistent with our
pronouncement in Kimberly Independent Labor Union v. Drilon [18] where the Court took judicial notice
of the practice adopted in several government and private institutions and industries of hiring janitorial
services on an "independent contractor basis." In this respect, although janitorial services may be
considered directly related to the principal business of an employer, as with every business, we deemed
them unnecessary in the conduct of the employer's principal business. [19]

This judicial notice, of course, rests on the assumption that the independent contractor is a
legitimate job contractor so that there can be no doubt as to the existence of an employer-employee
relationship between contractor and the worker. In this situation, the only pertinent question that may
arise will no longer deal with whether there exists an employment bond but whether the employee may
be considered regular or casual as to deserve the application of Art. 280 of the Labor Code.
It is an altogether different matter when the very existence of an employment relationship is in
question. This was the issue generated by Canonicato's application for regularization of his
employment with COCA COLA and the subsequent denial by the latter of an employer-employee
relationship with the applicant. It was error therefore for the NLRC to apply Art. 280 of the Labor Code
in determining the existence of an employment relationship of the parties herein, especially in light of
our explicit holding in Singer Sewing Machine Company v. Drilon[20] that x x x x [t]he definition that regular employees are those who perform activities which are desirable and
necessary for the business of the employer is not determinative in this case. Any agreement may
provide that one party shall render services for and in behalf of another for a consideration (no matter
how necessary for the latter's business) even without being hired as an employee. This is precisely true
in the case of an independent contractorship as well as in an agency agreement. The Court agrees with
the petitioner's argument that Article 280 is not the yardstick for determining the existence of an
employment relationship because it merely distinguishes between two kinds of employees, i.e., regular
employees and casual employees, for purposes of determining the right of an employee to certain
benefits, to join or form a union, or to security of tenure. Article 280 does not apply where the
existence of an employment relationship is in dispute.
In determining the existence of an employer-employee relationship it is necessary to determine
whether the following factors are present: (a) the selection and engagement of the employee; (b) the
payment of wages; (c) the power to dismiss; and, (d) the power to control the employee's conduct.
[21]
Notably, these are all found in the relationship between BJS and Canonicato and not between
Canonicato and petitioner COCA COLA. As the Solicitor-General manifested[22]In the instant case, the selection and engagement of the janitors for petitioner were done by BJS. The
application form and letter submitted by private respondent (Canonicato) to BJS show that he
acknowledged the fact that it was BJS who did the hiring and not petitioner x x x x
BJS paid the wages of private respondent, as evidenced by the fact that on July 15, 1993, private
respondent sent his sister to BJS with a note authorizing her to receive his pay.
Power of dismissal is also exercised by BJS and not petitioner. BJS is the one that assigns the janitors
to its clients and transfers them when it sees fit. Since BJS is the one who engages their services, then it
only follows that it also has the power to dismiss them when justified under the circumstances.
Lastly, BJS has the power to control the conduct of the janitors. The supervisors of petitioner, being
interested in the result of the work of the janitors, also gives suggestions as to the performance of the
janitors, but this does not mean that BJS has no control over them. The interest of petitioner is only
with respect to the result of their work. On the other hand, BJS oversees the totality of their
performance.

The power of the employer to control the work of the employee is said to be the most the most
significant determinant. Canonicato disputed this power of BJS over him by asserting that his
employment with COCA COLA was not interrupted by his application with BJS since his duties before
and after he applied for regularization were the same, involving as they did, working in the maintenance
department and doing painting tasks within its facilities. Canonicato cited the Labor Utilization Reports
of COCA COLA showing his painting assignments. These reports, however, are not expressive of the
true nature of the relationship between Canonicato and COCA COLA; neither do they detract from the
fact that BJS exercised real authority over Canonicato as its employee.
Moreover, a closer scrutiny of the reports reveals that the painting jobs were performed by
Canonicato sporadically, either in a few days within a month and only for a few months in a year.
[23]
This infrequency or irregularity of assignments countervails Canonicatos submission that he was
assigned specifically to undertake the task of painting the whole year round. If anything, it hews closely
to the assertion of BJS that it assigned Canonicato to these jobs to maintain and sanitize the premises of
petitioner COCA COLA pursuant to its contract of services with the company.[24]
It is clear from these established circumstances that NLRC should have recognized BJS as the
employer of Canonicato and not COCA COLA. This is demanded by the fact that it did not disturb, and
therefore it upheld, the finding of the Labor Arbiter that BJS was truly a legitimate job-contractor and
could by itself hire its own employees. The Commission could not have reached any other legitimate
conclusion considering that BJS satisfied all the requirements of a job-contractor under the law, namely,
(a) the ability to carry on an independent business and undertake the contract work on its own account
under its own responsibility according to its manner and method, free from the control and direction of
its principal or client in all matters connected with the performance of the work except as to the results
thereof; and, (b) the substantial capital or investment in the form of tools, equipment, machinery, work
premises, and other materials which are necessary in the conduct of its business.[25]
It is to be noted that COCA COLA is not the only client of BJS which has its roster of clients like
San Miguel Corporation, Distileria Bago Incorporated, University of Negros Occidental-Recolletos,
University of St. La Salle, Riverside College, College Assurance Plan Phil., Inc., and Negros
Consolidated Farmers Association, Inc.[26] This is proof enough that BJS has the capability to carry on
its business of janitorial services with big establishments aside from petitioner and has sufficient capital
or materials necessary therefor.[27] All told, there being no employer-employee relationship between
Canonicato and COCA COLA, the latter cannot be validly ordered to reinstate the former and pay him
back wages.
WHEREFORE, the petition is GRANTED. The NLRC decision of 3 January 1995 declaring
Ramon B. Canonicato a regular employee of petitioner Coca Cola Bottlers Phils., Inc., entitled to
reinstatement and back wages is REVERSED and SET ASIDE. The decision of the Labor Arbiter of 28
April 1994 finding no employer-employee relationship between petitioner and private respondent but
directing petitioner Coca Cola Bottlers Phils., Inc., instead and Bacolod Janitorial Services to pay jointly
and severally Ramon B. Canonicato P2,776.80 as wage differentials, P1,068.00 as 13th month pay
and P384.48 as attorney's fees, is REINSTATED.
[G.R. No. 130547. October 3, 2000]
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and KRISTINE, all
surnamed REYES, represented by their mother, LEAH ALESNA

REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL, SISTER ROSE PALACIO, DR.
MARVIE BLANES, and DR. MARLYN RICO, respondents.
DECISION

Blanes re-applied the emergency measures taken before and, in addition, valium was
administered. Jorge, however, did not respond to the treatment and slipped into cyanosis, a
bluish or purplish discoloration of the skin or mucous membrane due to deficient oxygenation
of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his death
was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.

MENDOZA, J.:
[1]

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No.
36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City which dismissed
a complaint for damages filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners,
namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their
children. Five days before his death on January 8, 1987, Jorge had been suffering from a
recurring fever with chills. After he failed to get relief from some home medication he was
taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was
attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty,
who gave Jorge a physical examination and took his medical history. She noted that at the
time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with
respiratory distress.[2] Typhoid fever was then prevalent in the locality, as the clinic had been
getting from 15 to 20 cases of typhoid per month. [3] Suspecting that Jorge could be suffering
from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be
performed on Jorge. Blood count, routine urinalysis, stool examination, and malarial smear
were also made.[4] After about an hour, the medical technician submitted the results of the test
from which Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only
up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges
history and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had
typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a
compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a dose of triglobe. As
she did not observe any adverse reaction by the patient to chloromycetin, Dr. Blanes ordered
the first five hundred milligrams of said antibiotic to be administered on Jorge at around 9:00
p.m. A second dose was administered on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature
rose to 41C. The patient also experienced chills and exhibited respiratory distress, nausea,
vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction machine, and
administered hydrocortisone, temporarily easing the patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment
or had suffered from chest pains in the past. Jorge replied he did not. [5] After about 15 minutes,
however, Jorge again started to vomit, showed restlessness, and his convulsions returned. Dr.

On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a
complaint[6]for damages against respondents Sisters of Mercy, Sister Rose Palacio, Dr. Marvie
Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24, 1987, petitioners
amended their complaint to implead respondent Mercy Community Clinic as additional
defendant and to drop the name of Josephine Pagente as defendant since she was no longer
connected with respondent hospital. Their principal contention was that Jorge did not die of
typhoid fever.[7] Instead, his death was due to the wrongful administration of
chloromycetin. They contended that had respondent doctors exercised due care and diligence,
they would not have recommended and rushed the performance of the Widal Test, hastily
concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without
first conducting sufficient tests on the patients compatibility with said drug. They charged
respondent clinic and its directress, Sister Rose Palacio, with negligence in failing to provide
adequate facilities and in hiring negligent doctors and nurses.[8]
Respondents denied the charges. During the pre-trial conference, the parties agreed to
limit the issues on the following: (1) whether the death of Jorge Reyes was due to or caused
by the negligence, carelessness, imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community Clinic was negligent in the hiring of its
employees; and (3) whether either party was entitled to damages. The case was then heard
by the trial court during which, in addition to the testimonies of the parties, the testimonies of
doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the
Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr.
Vacalares performed an autopsy on Jorge Reyes to determine the cause of his
death. However, he did not open the skull to examine the brain. His findings[9] showed that the
gastro-intestinal tract was normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated that he
had not seen a patient die of typhoid fever within five days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra
Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is microbiology and
infectious diseases.He is also a consultant at the Cebu City Medical Center and an associate
professor of medicine at the South Western University College of Medicine in Cebu City. He
had treated over a thousand cases of typhoid patients. According to Dr. Gotiong, the patients
history and positive Widal Test results ratio of 1:320 would make him suspect that the patient
had typhoid fever. As to Dr. Vacalares observation regarding the absence of ulceration in
Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in the intestines of a
typhoid victim may be microscopic. He noted that since the toxic effect of typhoid fever may
lead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain. [10]

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of
Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the
Philippine Society of Pathologist, associate professor of the Cebu Institute of Medicine, and
chief pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated
that although he was partial to the use of the culture test for its greater reliability in the
diagnosis of typhoid fever, the Widal Test may also be used. Like Dr. Gotiong, he agreed that
the 1:320 ratio in Jorges case was already the maximum by which a conclusion of typhoid
fever may be made. No additional information may be deduced from a higher dilution. [11] He
said that Dr. Vacalares autopsy on Jorge was incomplete and thus inconclusive.

In the present case, there is no doubt that a physician-patient relationship existed

between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at
least the same level of care that any reasonably competent doctor would use to treat a
condition under the same circumstances. It is breach of this duty which constitutes actionable
malpractice.[14] As to this aspect of medical malpractice, the determination of the reasonable
level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of
the injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the
conclusion as to causation.[15]

On September 12, 1991, the trial court rendered its decision absolving respondents from
the charges of negligence and dismissing petitioners action for damages. The trial court
likewise dismissed respondents counterclaim, holding that, in seeking damages from
respondents, petitioners were impelled by the honest belief that Jorges death was due to the
latters negligence.

Res Ipsa Loquitur

Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of
Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA
LOQUITUR IS NOT APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE
LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF
DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT
APPRECIATE[D] NO DOCTORS NEGLIGENCE IN THE TREATMENT OF
JORGE REYES.
Petitioners action is for medical malpractice. This is a particular form of negligence
which consists in the failure of a physician or surgeon to apply to his practice of medicine that
degree of care and skill which is ordinarily employed by the profession generally, under similar
conditions, and in like surrounding circumstances. [12] In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed to do something which a
reasonably prudent physician or surgeon would have done, or that he or she did something
that a reasonably prudent physician or surgeon would not have done, and that the failure or
action caused injury to the patient.[13] There are thus four elements involved in medical
negligence cases, namely: duty, breach, injury, and proximate causation.

There is a case when expert testimony may be dispensed with, and that is under the
doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:[16]
Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted
to find a physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper standard of
care. Where common knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there
is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a
foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment, removal of the wrong part of the body when
another part was intended, knocking out a tooth while a patients jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the patient was under the influence of anesthetic, during
or following an operation for appendicitis, among others.[17]
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies
to the present case because Jorge Reyes was merely experiencing fever and chills for five

days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he
died after only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa loquitur were
present, namely: (1) the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person in charge; and (3) the injury suffered must not have been due
to any voluntary action or contribution of the person injured.[18]
The contention is without merit. We agree with the ruling of the Court of Appeals. In
the Ramos case, the question was whether a surgeon, an anesthesiologist, and a hospital
should be made liable for the comatose condition of a patient scheduled for cholecystectomy.
[19]
In that case, the patient was given anesthesia prior to her operation. Noting that the patient
was neurologically sound at the time of her operation, the Court applied the doctrine of res
ipsa loquitur as mental brain damage does not normally occur in a gallblader operation in the
absence of negligence of the anesthesiologist. Taking judicial notice that anesthesia
procedures had become so common that even an ordinary person could tell if it was
administered properly, we allowed the testimony of a witness who was not an expert. In this
case, while it is true that the patient died just a few hours after professional medical assistance
was rendered, there is really nothing unusual or extraordinary about his death. Prior to his
admission, the patient already had recurring fevers and chills for five days unrelieved by the
analgesic, antipyretic, and antibiotics given him by his wife. This shows that he had been
suffering from a serious illness and professional medical help came too late for him.
Respondents alleged failure to observe due care was not immediately apparent to a
layman so as to justify application of res ipsa loquitur. The question required expert opinion on
the alleged breach by respondents of the standard of care required by the
circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption
of negligence can be applied to Dr. Marlyn Rico. As held inRamos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations
in malpractice cases where a layman is able to say, as a matter of common knowledge and observation,
that the consequences of professional care were not as such as would ordinarily have followed if due
care had been exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a physician or a surgeon which
involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at
his peril to explain why any particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result.[20]

We turn to the question whether petitioners have established specific acts of negligence
allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the
Widal test, diagnosed Jorges illness as typhoid fever, and immediately prescribed the
administration of the antibiotic chloromycetin;[21] and (2) Dr. Marvie Blanes erred in ordering the
administration of the second dose of 500 milligrams of chloromycetin barely three hours after
the first was given.[22] Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief
Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed
an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings
during the autopsy, Jorge Reyes did not die of typhoid fever but of shock undetermined, which
could be due to allergic reaction or chloromycetin overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do
not find him to be so as he is not a specialist on infectious diseases like typhoid
fever. Furthermore, although he may have had extensive experience in performing autopsies,
he admitted that he had yet to do one on the body of a typhoid victim at the time he conducted
the postmortem on Jorge Reyes. It is also plain from his testimony that he has treated only
about three cases of typhoid fever. Thus, he testified that:[23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of
typhoid fever?
A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within
five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice of
medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid fever
is like this and like that. And the widal test does not specify the time of the typhoid
fever.

Specific Acts of Negligence

Q The question is: how many typhoid fever cases had you seen in your general practice
regardless of the cases now you practice?

A I had only seen three cases.

A Drug of choice of chloramphenical.

Q And that was way back in 1964?

A Way back after my training in UP.

Q Doctor, if given the same patient and after you have administered chloramphenical
about 3 1/2 hours later, the patient associated with chills, temperature - 41 oC, what
could possibly come to your mind?

Q Clinically?

A Well, when it is change in the clinical finding, you have to think of complication.

A Way back before my training.

Q And what will you consider on the complication of typhoid?

He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both lower courts
were therefore correct in discarding his testimony, which is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to prove that
brain injury was due to oxygen deprivation after the patient had bronchospasms [24] triggered by
her allergic response to a drug, [25] and not due to faulty intubation by the anesthesiologist. As
the issue was whether the intubation was properly performed by an anesthesiologist, we
rejected the opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice, procedure, and their
complications; nor (2) an allergologist who could properly advance expert opinion on allergic
mediated processes; nor (3) a pharmacologist who could explain the pharmacologic and toxic
effects of the drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly were
experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr.
Peter Gotiong, a diplomate whose specialization is infectious diseases and microbiology and
an associate professor at the Southwestern University College of Medicine and the Gullas
College of Medicine, testified that he has already treated over a thousand cases of typhoid
fever.[26] According to him, when a case of typhoid fever is suspected, the Widal test is
normally used,[27] and if the 1:320 results of the Widal test on Jorge Reyes had been presented
to him along with the patients history, his impression would also be that the patient was
suffering from typhoid fever.[28] As to the treatment of the disease, he stated that chloromycetin
was the drug of choice.[29] He also explained that despite the measures taken by respondent
doctors and the intravenous administration of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as follows:[30]

A One must first understand that typhoid fever is toximia. The problem is complications
are caused by toxins produced by the bacteria . . . whether you have suffered
complications to think of -- heart toxic myocardities; then you can consider a toxic
meningitis and other complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of 500
milligrams intravenous, after the skin test, and received a second dose of
chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in
temperature to 41oC, and then about 40 minutes later the temperature rose to 100 oF,
cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating,
with seizures: what significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic meningitis
because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium, became
conscious and coherent about 20 minutes later, have seizure and cyanosis and
rolling of eyeballs and vomitting . . . and death: what significance would you attach
to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem
examination?

ATTY. PASCUAL:

A No, the finding would be more on the meninges or covering of the brain.

Q If with that count with the test of positive for 1 is to 320, what treatment if any would be
given?

Q And in order to see those changes would it require opening the skull?
A Yes.

A If those are the findings that would be presented to me, the first thing I would consider
would be typhoid fever.
Q And presently what are the treatments commonly used?

As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract
was normal, Dr. Rico explained that, while hyperplasia[31] in the payers patches or layers of the
small intestines is present in typhoid fever, the same may not always be grossly visible and a
microscope was needed to see the texture of the cells.[32]

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of
the Philippine and American Board of Pathology, an examiner of the Philippine Board of
Pathology, and chief pathologist at the MetroCebu Community Hospital, Perpetual Succor
Hospital, and the Andres Soriano Jr. Memorial Medical Center. He stated that, as a clinical
pathologist, he recognized that the Widal test is used for typhoid patients, although he did not
encourage its use because a single test would only give a presumption necessitating that the
test be repeated, becoming more conclusive at the second and third weeks of the disease.
[33]
He corroborated Dr. Gotiongs testimony that the danger with typhoid fever is really the
possible complications which could develop like perforation, hemorrhage, as well as liver and
cerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge Reyes, Dr.
Panopio stated that no additional information could be obtained from a higher ratio. [35] He also
agreed with Dr. Gotiong that hyperplasia in the payers patches may be microscopic.[36]
Indeed, the standard contemplated is not what is actually the average merit among all
known practitioners from the best to the worst and from the most to the least experienced, but
the reasonable average merit among the ordinarily good physicians. [37] Here, Dr. Marlyn Rico
did not depart from the reasonable standard recommended by the experts as she in fact
observed the due care required under the circumstances. Though the Widal test is not
conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case,
greater accuracy through repeated testing was rendered unobtainable by the early death of
the patient. The results of the Widal test and the patients history of fever with chills for five
days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the
clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any
doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug
chloromycetin, the drug of choice for typhoid fever. The burden of proving that Jorge Reyes
was suffering from any other illness rested with the petitioners. As they failed to present expert
opinion on this, preponderant evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr.
Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams
of chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyes
died of anaphylactic shock[38] or possibly from overdose as the second dose should have been
administered five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by the
Court of Appeals, however:

That chloromycetin was likewise a proper prescription is best established by medical authority. Wilson,
et. al., in Harrisons Principle of Internal Medicine, 12th ed. write that chlorampenicol (which is the
generic of chloromycetin) is the drug of choice for typhoid fever and that no drug has yet proven better
in promoting a favorable clinical response. Chlorampenicol (Chloromycetin) is specifically indicated
for bacterial meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS Annual,
1994, p. 211) The dosage likewise including the first administration of five hundred milligrams (500
mg.) at around nine oclock in the evening and the second dose at around 11:30 the same night was still
within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every
six (6) hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on
Therapeutics and Toxicology, 1996). The intravenous route is likewise correct. (Mansser, ONick,
Pharmacology and Therapeutics) Even if the test was not administered by the physician-on-duty, the
evidence introduced that it was Dra. Blanes who interpreted the results remain uncontroverted.
(Decision, pp. 16-17) Once more, this Court rejects any claim of professional negligence in this regard.
....
As regards anaphylactic shock, the usual way of guarding against it prior to the administration of a drug,
is the skin test of which, however, it has been observed: Skin testing with haptenic drugs is generally
not reliable. Certain drugs cause nonspecific histamine release, producing a weal-and-flare reaction in
normal individuals. Immunologic activation of mast cells requires a polyvalent allergen, so a negative
skin test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug. (Terr,
Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all this means legally is
that even if the deceased suffered from an anaphylactic shock, this, of itself, would not yet establish the
negligence of the appellee-physicians for all that the law requires of them is that they perform the
standard tests and perform standard procedures. The law cannot require them to predict every possible
reaction to all drugs administered. The onus probandi was on the appellants to establish, before the trial
court, that the appellee-physicians ignored standard medical procedure, prescribed and administered
medication with recklessness and exhibited an absence of the competence and skills expected of general
practitioners similarly situated.[39]
Fourth. Petitioners correctly observe that the medical profession is one which, like the
business of a common carrier, is affected with public interest. Moreover, they assert that since
the law imposes upon common carriers the duty of observing extraordinary diligence in the
vigilance over the goods and for the safety of the passengers, [40] physicians and surgeons
should have the same duty toward their patients. [41] They also contend that the Court of
Appeals erred when it allegedly assumed that the level of medical practice is lower in Iligan
City, thereby reducing the standard of care and degree of diligence required from physicians
and surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common carriers. The Civil Code
provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to the circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is a

right earned through years of education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any time and for cause, be
revoked by the government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which
doctors have imposed upon themselves in recognition and acceptance of their great
responsibility to society. Given these safeguards, there is no need to expressly require of
doctors the observance of extraordinary diligence. As it is now, the practice of medicine is
already conditioned upon the highest degree of diligence. And, as we have already noted, the
standard contemplated for doctors is simply the reasonable average merit among ordinarily
good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it,
the reasonable skill and competence . . . that a physician in the same or similar locality . . .
should apply.
WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals
is AFFIRMED.