G.R. No.
28871 September 19, 1928 that it did not allege facts sufficient to constitute a cause of action, Justo Babiera
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CLEMENTE BABIERA, JUSTO BABIERA and DOMINGA BORES, defendants-
appellants.
Zulueta and Cordova and Jesus Trinidad for appellants.
Office of the Solicitor-General Reyes for appellee.
VILLA-REAL, J.:
This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga Bores from
the judgment of the Court of First Instance of Iloilo finding them guilty of the crime of
murder, the first as principal, and the last two as accomplices, sentencing the former to
life imprisonment with the accessories of article 54 of the Penal Code, and each of the
latter to fourteen years, eight months and one day cadena temporal, with the accessories
of article 54 and 59 of the Penal Code, respectively, and all three to indemnify the family
of the deceased Severino Haro in the sum of P1,000 jointly and severally, and each of
them to pay one-third of the costs of the action in the justice of the peace court and the
Court of First Instance.
The six alleged errors assigned by the accused as committed by the trial court in its
judgment may be shifted down to the following propositions:
1. That the evidence adduced at the trial by the prosecution has not established the guilt
of the defendants-appellants beyond a reasonable doubt.
2. The Exhibit I of the prosecution is not an ante-mortem declaration and is therefore
inadmissible as evidence.
3. That the offended party's quarrelsome disposition can be proved in the trial to
determine who began the attack.
Before discussing the evidence adduced by both parties and determining its weight and
probatory value, it is well to decide the questions raised by the appellants on the
admissibility of evidence.
The first question of this nature refers to the character of the document Exhibit I, which is
a statement made by Severino Haro in Saint Paul's Hospital of Iloilo on the morning after
the crime was committed.
Although said statement in itself is inadmissible as an ante-mortem declaration,
inasmuch as there is nothing to show that at the time he made it Severino Haro knew or
firmly believed that he was at the point of death, nevertheless, having ratified its contents
a week later when he was near death as a result of his wounds, said declaration is
admissible as a part of that which he made ante-mortem "A statement made under
circumstances which would not render it admissible as a dying declaration becomes
admissible as such, it is held, if approved or repeated by the declarant after he had
abandoned all hope of recovery." (30 Corpus Juris, 257.)
Passing now to a consideration of the evidence, the prosecution tried to proved the
following facts:
Justo Babiera was the owner of two parcels of land situated in the municipality of Oton,
Province of Iloilo, Philippine Islands. On October 19, 1922 Justo Babiera executed a
contract of sale with the right of repurchase in favor of Basilio Copreros whereby he sold
the two parcels of land to the latter for the sum of P124 with the condition that if the
vendor did not repurchase them on or before August 1, 1923, the sale would become
absolute and irrevocable (Exhibit F). The period for repurchase having expired, Basilio
Copreros took possession of said two parcels of land, and on March 24, 1927, made
application to the registrar of deeds for the Province of Iloilo for the registration of the
consolidation of his title to said parcels. On the 26th of the said month, Basilio Copreros
leased said parcels to Severino Haro, municipal president of Oton (Exhibit G and G-1). In
view of this, on March 31, 1927, Justo Babiera filed a complaint against Basilio Copreros
in the justice of the peace court of Oton for the recovery of the possession of said two
parcels of land. The complaint having been dismissed on April 19, 1927 on the ground
appealed to the Court of First Instance of Iloilo (Exhibit M). Later on, said Justo Babiera
asked for the dismissal of the complaint for unlawful detainer and filed another one for
the recovery of property (Exhibit F). Inasmuch as Severino Haro was already in
possession of the aforesaid two parcels of land as lessee, he bore all the expenses in the
case of unlawful detainer as well as in that for recovery of the property.
Fermin Bruces was Severino Haro's copartner on shares in said lands. About the month
of May, 1927, Justo Babiera accompanied by his copartner on shares, Rosendo Paycol,
went to where Fermin Bruces was plowing and asked the latter: "Who told you to plow
here?" Fermin Bruces replied: "Severino Haro." Then Justo Babiera asked him: "If this
Severino tells you to kill yourself, will you do it?" "Of course not," answered Fermin
Bruces. After this interchange of words Justo Babiera told Fermin Bruces to stop plowing
and to tell his master, Severino Haro, to come and plow himself. Fermin Bruces informed
Severino Haro of the incident, and in answer the latter only told him not to mind it, but to
go on plowing.
On another occasion while Fermin Bruces was transplanting rice on the same lands,
Clemente Babiera and Rosendo Paycol arrived and told him that if he continued working
they would pull out someone's intestines. Fermin Bruces also informed Severino Haro of
these threats, who as before, told him not to mind them, but to go on sowing.
On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in the barrio of
Bita, which was under the care of Victoriano Randoquile. He was told by the latter that he
lacked palay seeds. At that time, Rosendo Paycol was in his field, Jose Haro and
Victoriano Randoquile approached him and asked him to give them some seeds.
Rosendo Paycol answered that he could not do so because he needed what he had for
his own farms. Haro and Randoquile then asked him: "Which fields do you mean?" "The
fields over which Copreros and Babiera are in litigation," answered Rosendo Paycol.
Surprised at this answer, Jose Haro told Rosendo Paycol that what he said could not be
because the lot in dispute was leased to his brother Severino Haro. Rosendo Paycol
replied that attorney Buenaventura Cordova had told Clemente Babiera and Justo
Babiera that Severino Haro would never be able to reap or enjoy the fruits of the land,
because if they did not win the suit by fair means they would win it by foul.
Ever since he had leased said land Severino Haro visited it rather often, especially during
the months of June and July, which is the sowing season, trying always to return to town
early. To go to the land, which was in the barrio called Bita, there was but a beaten path
that passed by the house of Rosendo Paycol, copartner on shares of Justo Babiera,
where the latter and his family lived.
On August 21, 1927, Severino Haro, as usual, went to visit his land in the barrio of Bita,
accompanied by Gregorio Torrija, Benito Carreon and Pedro Tauro. On arriving there
Fermin Bruces, his copartner on shares, told him that the day before he had found
Clemente Babiera's cow grazing on that land. It happened at that moment Clemente
Babiera and Dominga Bores were passing by. Severino Haro then informed Clemente
Babiera of what his cow had done on the former's land and told him to take better care of
his cow in future and not to let it run loose. He then ordered Fermin Bruces to take the
animal to where the Babiera family lived. Severino Haro was not able to return to town
until almost 7 o'clock in the evening. As it was already dark, he and his companions had
to make use of a torch made out of split bamboo to light them on their way. Severino
Haro went ahead, followed by Pedro Tauro, who carried the torch, some 8 brazas
behind, with Gregorio Torrija and Benito Carreon following. On Coming to a place in the
road near Rosendo Paycol's house, Clemente Babiera suddenly sprang from the cogon
grass, went after Severino Haro and struck him with his bolo in the back. On turning his
head to see who had attacked him Severino Haro received another bolo blow in the
forehead near the right eyebrow. In trying to defend himself with his hand he was
wounded between the index finger and the thumb. He then tried to grasp his assailant
but did not succeed and he fell to the ground. Then Justo Babiera appeared and placing
himself upon Severino Haro's stomach, held the latter's hands. Later, Dominga Bores
appeared on the scene and held both knees of the wounded man. When Justo Babiera
arrived, a voice was heard saying: "Hold him, papa," and at the same time, Severino
Haro's voice was heard saying: "Help! help!" Pedro Tauro wished to come near in order
to help Severino Haro, but Clemente Babiera raised his bolo in the air and kept on
brandishing it to warn everybody off. Pedro Tauro, in fear, stepped back, dropping the
torch he carried. Not far from there were also Buenaventura Gabalfin and Gregorio
Paycol, who threatened to kill Severino Haro's companions if they helped him. After the
torch had been extinguished they heard a voice which they recognized as Severino
Haro's saying: "Uncle Justo, have patience with me, for I have done no wrong." Then
they heard another voice, that of Dominga Bores, which said: "Here is the revolver; let us
return." Before the assailants left two or three revolver shots were heard. When Severino
Haro's companions saw that their assailants had already departed, they drew near to
where Severino lay stretched out to see what had happened to him. Severino Haro told
them not to fear for he did not feel as if he were going to die, and calling his copartner on
shares, Fermin Bruces, directed him to bring a cot and take him to town. Pedro Tauro
and Gregorio Torrija did as Severino Haro wished, and on arriving at the barrio of Santa
Monica, they by chance came upon a truck in which were some policemen. They place
the wounded man in the same truck and took him to Saint Paul's Hospital in the City of
Iloilo. When Severino Haro was taken to the town he did not have his revolver and the
cartridge belt, without the holster, was found by Gregorio Torrija near where the incident
took place.
When Severino Haro was already in Saint Paul's Hospital he was examined by Dr.
Mariano Arroy, who issued a certificate stating that he found the following wounds: Three
on the right frontal regions; one on the right forehead taking in the soft parts up to the
auditory arch; on the right palmar arch; another on the left arm; a deep one reaching
down to the spinal column on the four slight wounds on the right thigh; the ones on the
forehead and the dorsal region being mortal of necessity. All the wounds were caused, in
the doctor's opinion, by a sharp-edged and pointed weapon, and while the combatants
were on the same plane, except the wounds on the middle of the calf which must have
been caused while the assaulted party was on a lower plane than his assailant, and the
wounds on the right thigh, which must have been inflicted while the assailant was on a
horizontal plane.
On the same morning, August 22, 1927, and in the same hospital, Severino Haro made a
sworn statement before the deputy fiscal, Edmundo S. Piccio (Exhibit I), relating the
occurrence and mentioning the persons who were present. This sworn statement was
ratified by him before the same deputy fiscal on the 27th of the said month and year
when he had given up all hope of recovery.
In this statement, Exhibit I, Severino Haro, among other things, said the following:
"Without warning, I received a slash on the left shoulder. On turning back my face, I saw
Clemente Babiera, and he then gave me another slash on the forehead just above the
right eyebrow. At that moment I also received a cut on the right hand, because on
receiving the blow on the forehead I defended myself with that hand. I then grasped him
because I could no longer support myself due to my two wounds. Then I fell. When I fell,
Clemente Babiera's father placed himself upon my stomach, while his (Clemente's) wife
sat on my feet, while Justo Babiera, Clemente's father, grasped my two hands and said
to me, "There, now draw your revolver" addressing me. I shouted to my companion for
help, for I felt I would die and while they approached, Clemente Babiera turned upon
them, and said: "Do not approach for you have nothing to do with this. Whoever comes
near gets a slash from this bolo." I shammed death and when they left me, and upon
seeing that neither Clemente, nor his father, nor his wife remained, my three companions
came up to me from their hiding places. One Aunario, copartner on shares of Jose
Abada, who lived near there, also came up to me, and later, Fermin."
In his ante-mortem declaration made on the 27th of August, 1927 before the same
deputy fiscal, Severino Haro, among other things, said the following:
"They repeatedly passed their fingers over my upper lip and at the same time see if I still
breathed; they felt and opened my eyelids and then inserted a finger in my pupil,
because they believed that if I was insensible, I was already dead. They knelt on my
stomach and one knelt on my lower limbs, and made a pass with something, which
seems to me was bamboo or a bolo, over the anterior surface of my calf, and Dominga
then took the revolver from me. I got up because I was afraid Dominga would shoot me
and when I attempted to escape Clemente Babiera pursued me and gave me another cut
on the left side of the waist, and I think the blow struck the ammunition belt, and if it had
not been for the belt it would have severed my waist."
The defense tried to prove the following facts:
On the afternoon of August 21, 1927 Clemente Babiera went to a place called Caboloan,
passing by the house of one Oper, located in the barrio of Bita, Oton, Iloilo. While he was
in Oper's house, his father Justo Babiera arrived, and some moments later Severino
Haro also arrived, and at once said to him: "Clemente, why do you leave your cow
loose?" Clemente denied the imputation and said that his cow was tied. Severino Haro
insisted, and added that said animal had damaged his sugar-cane plantation, and
therefore, Fermin Bruces, his copartner on shares caught and tied it, by his order, to a
mango tree. Clemente Babiera answered that he left the case in his hands and that he
could charge him what he would, for the damages occasioned by his cow. As Severino
Haro charged him P2 for the damage, Clemente told him that at the moment he had no
money, but that on the following day he would get money from the town market and pay
him. Severino Haro accepted the promise and left. Clemente Babiera in turn retired to his
house, together with Dominga Bores and his father, and upon reaching a coconut palm
they met Fermin Bruces, copartner on shares with Severino Haro, who told them that he
had already tied up the cow as per his master's order. At about 7 o'clock in the evening
while Clemente Babiera was in his house conversing with his father about the land which
they had in Caboloan, which was attached by the Government, he suddenly heard a
commotion; he went to the porch of the house to see what had happened and saw a
number of persons coming one carrying a light and another leading his cow by rope.
Clemente Babiera told his father what he saw and went out to meet said persons, and
saw Buenaventura Cabalfin leading his cow by the rope and Severino Haro followed by
his companions Pedro Tauro, Gregorio Torrija, Benito Carreon, Margarito Mediavilla and
Fermin Bruces. Clemente Babiera then asked Severino Haro: "Why are you taking my
cow away? Haven't I promised to pay you tomorrow the loss caused by the animal? If
you have no confidence in me, then prepare a receipt showing that tomorrow without fail,
I will pay you." In reply, Severino Haro only said to Buenaventura Cabalfin: "Get on,
proceed." Clemente Babiera took hold of the rope by which the cow was led, and said:
"Buenaventura, stop!" Severino Haro then grasped Clemente Babiera by the hand and
pulled him to one side. Clemente Babiera disengaged himself from Severino Haro's
grasp, but Margarito Mediavilla struck him with a bolo at the base of his little finger.
Feeling himself wounded, Clemente Babiera tried to unsheathe his bolo intending to
return the blow to Margarito Mediavilla but failed to do so, because he heard someone
say: "Shoot him!" Immediately thereafter he saw Severino Haro with revolver
unholstered, and without any loss of time he went up to the latter and at that moment
shots were heard. Clemente Babiera then began to slash blindly right and left without
considering what he was at, catching Severino Haro in the back, as a result of which the
latter fell to the ground on his back. Clemente Babiera threw himself upon him, held him
down so he could not get up, and asked him: "Where is your revolver?" Severino Haro
answered that he did not have it. Then Clemente Babiera raised Severino Haro's hands
and felt his back, but did not find the revolver. Justo Babiera, Clemente's father, then
appeared, and was told by his son: "Papa, hold him, while I search for his revolver."
When Clemente Babiera saw Fermin Bruces he thought that the latter meant to attack
him because he had one hand behind, where he carried his bolo, so Severino turned on
him, but his wife, Dominga Bores, restrained him telling him not to approach. One Nario
also wanted to approach in order to defend Severino Haro but dared not do so in view of
Clemente Babiera's threats. After having made fruitless search for Severino Haro's
revolver, Clemente Babiera, his father, and his wife went back to their house.
After charging Rosendo Paycol with the care of the children, the three went to town and
passed the night in Florencio Mayordomo's house. On the following morning Dominga
Bores went to attorney Buenaventura Cordova's house and informed him of what had
happened. Buenaventura Cordova then went to Florencio Mayordomo's house and told
Dominga Bores to return to the place of the incident in order to look for the revolver and
deliver it to the Constabulary if she found it. Then he accompanied Clemente Babiera to
the office of Captain Gatuslao of the Constabulary at Fort San Pedro, to whom they
delivered the holster of the revolver and the three shells they had picked up on the night
of the incident. Dominga Bores having found the revolver in a furrow near the place of
the crime took it to Iloilo and delivered it to Captain Gatuslao of the Constabulary
between 9 and 10 o'clock in the morning.
Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera's wound
and certified that the same was 2 centimeters long and half a centimeter deep and was
situated at the base of the little finger of the right hand, taking in the cellular tissue of the
skin and the exterior ligament of the wrist.
In rebuttal, the prosecution tried to prove that at about half past five in the morning of
August 22, 1927, Dominga Bores was seen in the ground floor of the provincial
government building of Iloilo, carrying a package under her arm and from there she went
to the public market of Iloilo.
There is no question that Severino Haro had leased from Basilio Copreros two parcels of
land the ownership of which had passed to him due to Justo Babiera's failure to
repurchase them within the stipulated period. Nor is there any question that the latter
tried to recover them, first, by an accion publiciana (action for unlawful detainer), and
then by an action for the recovery of possession. There is likewise no question that
Severino Haro paid the expenses of the defendant Basilio Copreros for the reason that
he was already in possession of said lands as lessee. There is also no question that
Clemente Babiera's cow damaged the plantings of Fermin Bruce, for which reason the
letter caught said cow, tied it, and notified his master of the matter when the latter went to
visit the lands leased by him. Neither is there any question that there was an agreement
between Clemente Babiera and Severino Haro whereby the latter ordered his copartner
on shares Fermin Bruces, to take the cow near Clemente Babiera's house and tie it up
there. In like manner there is no question that at about 7 o'clock in the evening of August
21, 1927, when Severino Haro and his companions were returning to the town of Oton,
and upon their coming near Rosendo Paycol's house, in which were Clemente Babiera,
his father Justo Babiera, and his mistress Dominga Bores, said Severino Haro had an
encounter with Clemente Babiera in which Severino Haro received several wounds in
consequence of which he died a week later in Saint Paul's Hospital of Iloilo.
The only question to determine in the present appeal is whether, as the prosecution
contends, Severino Haro was suddenly and treacherously attacked by Clemente
Babiera, aided by his father and his mistress Dominga Bores; or, as the defense
contends, Severino Haro notwithstanding the agreement between himself and Clemente
Babiera by which the latter was to indemnify him for the damages caused by his cow,
wanted to take the animal to town; that in trying to prevent it, Clemente Babiera was
grasped by the hand by Severino Haro and pulled to one side; that in disengaging
himself Clemente Babiera received a bolo cut from Margarito Mediavilla that wounded
the little finger of his right hand; and that Severino Haro then unsheathed his revolver
and fired several shots, in view of which Clemente Babiera struck right and left with his
bolo, thus causing the former's wounds.
In order to decide the question thus raised, it is necessary to take into account all the
circumstances, previous, coetaneous and subsequently to the incident in question, and
to determine who had, or could have had, motives to assault the other.
We have seen that Justo Babiera sold two parcels of land to Basilio Copreros with the
right of repurchase, and that, having failed to repurchase them within the period
stipulated, the title thereto was consolidated, in the purchaser, who leased them to
Severino Haro, the latter taking possession of them. Justo Babiera restored to every
lawful means to regain possession of said parcels of land, first by an accion publiciana,
which failed, and then by an action for the recovery of possession. Severino Haro paid
the expenses of Basilio Copreros in order to carry on the suits. Such interested
intervention on Severino Haro's part without doubt must have vexed Justo Babiera, for in
the month of May 1927, he went with his copartner on shares, Rosendo Paycol, to where
Fermin Bruces, Severino Haro's copartner, was plowing, and asked him who had
ordered him there, and when Fermin Bruces answered that it was Severino Haro, Justo
asked him whether he would commit suicide if told to do so by said Severino Haro, and
then told him to tell his master to go and plow himself. Later on, Clemente Babiera, Justo
Babiera's son, accompanied by his copartner Rosendo Paycol, seeing that Fermin
Bruces went on working the land, told him that if he continued plowing, Clemente would
pull out someone's intestines. If all these threats are true, as we believe they are, then
Justo Babiera and Clemente Babiera must have borne Severino Haro deep resentment,
doubtless believing that it was due to him that they could not recover their two parcels of
land, and this was sufficient and adequate to move them, upon the failure of lawful
means, to resort to violence.
It has been contended by the defense that the defendant-appellant, Clemente Babiera,
only acted in defense of his life and property, having been obliged to resort to arms on
seeing his life endangered, contending that the provocation consisted in that after
Severino Haro had agreed to an indemnity of P2 for the damage caused, the latter
wanted to take Clemente Babiera's cow to the town, and that the attack consisted in that
Margarito Mediavilla gave him a bolo blow on the little finger of the right hand, and that
Severino Haro threatened him with his revolver and fired several shots at him.
Examined in the light of the ordinary conduct of men, Severino Haro's alleged attitude, in
having tried to take Clemente Babiera's cow after having agreed to accept P2 for the
damages, and having ordered that the animal be returned to its owner, is highly illogical,
and not a scintilla of evidence has been presented to explain this change of
determination, as unexpected as it is unreasonable.
With respect to the allegation that Margarito Mediavilla and Severino Haro began the
attack, inasmuch as it has not been proved that they were the instigators, it cannot be
conceived that they committed said unlawful aggression, for he who has no reason to
provoke, has no reason to attack unlawfully.
The defense also attempted to prove that Severino Haro was of a quarrelsome
disposition, provoking, irascible, and fond of starting quarrels in the municipality of Oton,
but the trial judge would not permit it.
While it is true that when the defense of the accused is that he acted in self-defense, he
may prove the deceased to have been of a quarrelsome, provoking and irascible
disposition, the proof must be of his general reputation in the community and not of
isolated and specific acts (Underhill Criminal Evidence, par. 325, p.570), such as the
accused Clemente Babiera tried to prove, and hence the lower court did not err in not
admitting such proof. But even if it had been proved by competent evidence that the
deceased was of such a disposition, nevertheless, it would not have been sufficient to
overthrow the conclusive proof that it was the said accused who treacherously attacked
the deceased.
Another circumstance which shows the falsity of the theory of the defense is that of
having made Buenaventura Cabalfin take part as the person whom Severino Haro
employed to lead Clemente Babiera's cow. If Severino Haro's copartner, Fermin Bruces,
whom he had told to return said cow to Clemente Babiera was with his master on that
night, together with other companions, what need was there of said Severino Haro's
employing the services of another person and one not belonging to his group? The plan
of the defense necessitated a provocation and to that end they conceived the idea of the
breach of the supposed agreement on the return of the animal through the payment of an
indemnity of P2, making use as an instrument of one on whom the defense could depend
to serve as witness, and there was no one better suited for such a purpose than
Buenaventura Cabalfin who according to the witnesses for the prosecution, was at the
place of the crime with Gregorio Paycol threatening the deceased's friends if they offered
to help him.
To rebut the evidence of the prosecution that Dominga Bores was the one who by order
of Clemente Babiera took Severino Haro's revolver from him on the night in question, the
defense tried to prove that on the following morning attorney Buenaventura Cordova, a
relative of the Babieras, told Dominga Bores to return to the place of the incident and
look for said weapon, and that she found it in a furrow near the place and took it to the
office of the Constabulary in Iloilo between 9 and 10 o'clock in the morning. But the
rebuttal evidence of the prosecution disproved this contention and showed that Dominga
Bores did not have to look for the revolver in the field, since at half past five in the
morning she was already in the provincial building of Iloilo carrying a package under her
arm.
With regard to the small wound at the base of the little finger of the right hand which
Clemente Babiera showed to the Constabulary physician as having been caused by
Margarito Mediavilla, we are convinced that the latter was not in the company of
Severino Haro on the night in question and could not have inflicted such a wound.
Bearing in mind the plan of the defense, it may safely be said that in order to cast an
appearance of reality on the concocted plea of an unlawful attack and self-defense,
Clemente Babiera inflicted on himself the slight wound; since, if in order to escape
military service there were men who mutilated themselves, who would not wound himself
slightly in order to escape a life penalty?
The facts related above have been proven beyond a reasonable doubt and constitute the
crime of murder defined in article 403 of the Penal Code, there being present at the
commission of the crime, the qualifying circumstance of treachery, consisting in the
accused Clemente Babiera having attacked Severino Haro suddenly while the latter had
his back turned, inflicting various wounds on his body as a result of which he died a week
later, said Clemente Babiera being criminally liable as principal by direct participation.
Justo Babiera and Dominga Bores are also liable but as accomplices, because, while
they did not take a direct part in the infliction of the wounds that caused Severino Haro's
death, or cooperated by acts without which they could not have been inflicted, or induced
Clemente Babiera to inflict them, yet they took part in the commission of the crime by
simultaneous acts consisting in the former having mounted Severino Haro's body and
held down his hands, while the latter sat on his knees while he lay stretched out on the
ground in order to allow Clemente Babiera to search the body for his revolver, Justo
Babiera and Dominga Bores cannot be held as accomplices of the crime of murder,
inasmuch as it does not appear to have been proven that they knew the manner in which
Clemente Babiera was going to assault Severino Haro, in accordance with the provision
of article 79 of the Penal Code, to the effect that the circumstances which consist in the
material execution of the act, or in the means employed to accomplish it, shall serve to
aggravate or mitigate the liability of those persons only who had knowledge of them at
the time of the act or their cooperation therein. Although in the instant case the treachery
is not considered a generic aggravating, but a qualifying circumstance, nevertheless, it
does not fail to produce a special aggravation.
To graduate the penalty, we are not to consider any modifying circumstance of the
criminal liability, for while it is true that Clemente Babiera took advantage of the darkness
of nighttime, this circumstance is included in treachery, inasmuch as, considering the fact
that Severino Haro was followed by several companions, the accused would not have
been able to conceal himself in the cogon grass nor attack the deceased from behind
without being seen in time and prevented from executing his criminal purpose had not
been for the darkness of the night.
The penalty provided by law for the crime of murder namely, that of cadena temporal in
its maximum degree to death must therefore be imposed upon Clemente Babiera in its
medium degree, that is, life imprisonment.
The penalty provided for in article 404 of the Penal Code for the crime of homicide
is reclusion temporal in its full extent, and the one next lower is prision mayor in its full
extent, which is the penalty that must be imposed on Justo Babiera and Dominga Bores
as accomplices in the crime of homicide (art. 67, Penal Code). In graduating the penalty,
the aggravating circumstances of nocturnity must be taken into consideration, without
any extenuating circumstances to offset it, and therefore said penalty of prision
mayor must be imposed in its maximum degree, that is, ten years and 1 day.
As there are three persons civilly liable, one as principal in the crime of murder and two
as accomplices in that of homicide, we must fix the share, for which each must answer,
of the P1,000 fixed by the trial court, in accordance with the provision of article 124 of the
Penal Code, that is, P600 for Clemente Babiera and P400 for Justo Babiera and
Dominga Bores, each of the latter being liable solidarily between themselves for their
share, and subsidiarily liable for the share of the former and the former for the share of
the latter, according to the provision of article 125 of the same Code.
By virtue whereof, the appealed judgment is hereby modified, and it is held that Justo
Babiera and Dominga Bores are guilty of the crime of homicide as accomplices and each
sentenced to ten years and 1 day prision mayor, and to pay the sum of P400 jointly and
severally, and Clemente Babiera to pay the sum of P600, the former to be subsidiarily
liable for the latter's share, and the latter for the former's share, payment to be made to
the heirs of the deceased Severino Haro, the appealed judgment being affirmed in all
other respects with the proportional costs against each. So ordered.
Avancena, C.J., Johnson, Street, Malcolm, Villamor, Ostrand and Romualdez,
JJ., concur.
G.R. No. L-9723 June 28, 1957
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GERONIMO SOLIMAN Y BUENAVENTURA alias EMONG and SOFRONIO PALIN Y
PAZ alias POLONIO,defendants-appellants.
Office of the Solicitor General Ambrosio Padilla and Solicitor Federico V. Sian for
appellee.
Cipriano Azada and Buenaventura Evangelista for appellants.
BAUTISTA ANGELO, J.:
Appellants were charged with murder before the Court of First Instance of Manila and
were sentenced each to suffer the extreme penalty of death, to indemnify the heirs of the
deceased in the sum of P6,000, and to pay the costs. By operation of law, the case was
brought before this Court for review.
In the morning of April 29, 1955, at about 2 o'clock, while Ernesto Basa was sleeping in a
pushcart placed along the sidewalk of Sto. Cristo Street near the southeast corner of that
street and Azcarraga, Manila, and Ernesto Balaktaw was also sleeping on a box situated
near the pushcart, with their heads opposite each other, Balaktaw was awakened when
someone kicked his hand. Upon awakening, Balaktaw saw Sofronio Palin proceed
toward the head of Ernesto Basa and hold the latter by the shoulder at which moment his
companion Geronimo, Soliman approached Ernesto Basa and stabbed him many times
with a balisong. Thereafter, the assailants ran away.
Balaktaw took Basa to a calesa and proceeded to a police outpost at the corner of
Azcarraga and Elcano Streets and reported the incident to Patrolman Tolentino. The
patrolman boarded the calesa and directed the driver to proceed to Mary Johnston
Hospital. From there, the three transferred to an ambulance and proceeded to the North
General Hospital where Basa was treated, but he expired in the morning of the same
day. At 4 o'clock in the afternoon, Dr. Mariano Lara, Chief Medical Examiner of the
Manila Police Department, made an autopsy of the deceased and found that the cause of
death is as follows: "Profuse exsanguinating hemorrhage (only 850 cc. recovered) and
shock due to multiple (7) stab wounds, two (2) being fatal, piercing the pyloric portion of
the stomach, duodenum, jejunum, hepatic flexure of colon and right kidney."
Appellant Soliman testified that prior to the present incident, or on April 21, 1955, the
deceased tried to borrow his pushcart and, as he was not able to lend it to him, the
deceased boxed him and as a consequence, he suffered physical injuries; that incident
was settled amicably on the same day by the companions of the deceased; that on
another occasion the beat up Soliman with an iron pipe and the latter had to undergo
medical treatment; that in the night of April 29, 1955, after he had eaten in Folgueras St.,
he proceeded to a truck by the United Bus Line of which he was a watchman; that while
he was passing Sto. Cristo Street, the deceased called him and asked for a drink; that he
told the deceased he had no money, but the deceased forced him to give him money and
even boxed him; that because the deceased had three companions, he pulled out his
knife and upon seeing this, the three companions ran away; that he and the deceased
fought in the course of which he stabbed him; that while they were fighting, one Sofronio
Palin came and separated them; and that when they were separated Palin advised him
to surrender to the police, so he went home and asked his brothers to accompany him to
the Meisic Station.
Appellant Palin merely corroborated the testimony of his co-accused by declaring that
while he was eating at a restaurant at the corner of Sto. Cristo and Azcarraga Streets in
the morning in question, he saw Soliman and the deceased grappling with each other;
that he tried to separate them and succeeded in doing so; that after the two were
separated, he asked Soliman to surrender and the latter heeded his advice.
The two appellants are charged with a very serious crime as in fact they were sentenced
to the extreme penalty of death. It is therefore important that we scrutinize carefully the
evidence on which the conviction is made to depend. In this case, we notice that the
conviction is mainly predicated on the testimony of one eyewitness supported by some
circumstantial evidence. This witness is Ernesto Balaktaw. Whether this witness has told
the truth or not in narrating the aggression which led to the death of the victim, much
depends upon the degree of his credibility. As usual, this is the function of the trial court.
Because of its opportunity to observe the conduct, demeanor and manner of testifying of
the witness, the trial court is in a better position to pass upon and gauge their credibility.
In this respect, we notice that the trial court has been most careful in taking notice not
only of the conduct of the witness during the trial, but of other extraneous matters that
may help in reaching a correct conclusion. The Court found the testimony of Balaktaw
worthy of credence not only because it is in part corroborated by the testimony of
appellant Soliman himself who admitted having inflicted the wounds that caused the
death of the victim, (although by way of self-defense) but also because it is supported by
the nature of the wounds as found by Dr. Lara in his autopsy. Thus, in brushing aside the
defense of appellant Soliman because the same runs counter to the nature and character
of the wounds inflicted on the deceased, the court said:
The contention of the defense that the wounds were inflicted while the
deceased Ernesto Basa was struggling or grappling with Geronimo is believed
by the testimony of the medical examiner and by the nature and character of the
wounds on the body of the deceased, as may be seen in Exhibits D, D-1, D-2
and D-3. An examination of the pictures of the deceased as appears in Exhibits
D-1 and D-2, especially the wound that appears a little above the duodenum,
shows clearly that the wounds were inflicted when the deceased was in a lying
position as testified to by witness for the prosecution, Ernesto Balaktaw. The
wounds that may be seen under the left armpit of the deceased could not have
been possibly inflicted if the deceased was in lying position with his hand
extended upwards in self-defense.
On the other hand, the trial court made also careful observation of the conduct and
demeanor of the two accused during the trial and in this respect made the following
observation:
During the course of the hearing, in order to give every iota of evidence its
proper probatory value, the Court had paid special attention to the manner in
which the accused and the witnesses testified, as well as their general
appearance. The accused Soliman is a well-built man, robust and apparently
strong. The accused Palin is a little bigger than the other accused and of
stronger physique. The deceased, as it appears from the pictures, while he may
be slightly higher in stature than the accused Soliman, has a thinner constitution
and much smaller than the accused Palin. Judging these two accused from the
manner they testified in court, their apparent indifference to all the court
proceedings in spite of the seriousness of the crime charged against them, and
the manner of testifying in short, curt and confused manner, convinced this
Court that they gave little importance to the case against them and to the
proceeding in court.
The defense, however, claims that the testimony of Ernesto Balaktaw should not be
given credit because it is self-contradictory and inconsistent with the testimony of Pat.
Tolentino and Det. Senen. But, aside from the fact that the alleged contradictions refer to
unimportant details or circumstances, they can be explained and reconciled. This was
done by the Solicitor General in his brief. After going over the explanation and
reconciliation made by this official, we are satisfied that the alleged contradictions or
inconsistencies cannot destroy the credibility of the witness.
An important flaw pointed out by the defense refers to the manner the witness identified
the two defendants. It is claimed that when this witness was made to identify accused
Soliman he pointed to accused Palin and when he was asked to identify the latter, he
pointed to the former. And he also committed a mistake in designating the nicknames of
the two accused.
While it is true that at the start of his testimony this witness was confused in identifying
the accused by their names, however, when he was asked by the court immediately
thereafter to put his hands on each of them, he was able to identify them correctly. The
court then made the following observation:
Witness identified both accused. At the time when he pointed to the accused he
apparently made a mistake may be due to the fact that the accused were both
seated together and when he pointed to the accused he might have been out of
big sense of direction. (pp. 2-3, t.s.n., Lloren.)
The defense also claims that the trial court erred in not granting its motion for new trial
based on newly discovered evidence which consists of the criminal record of prosecution
witness Ernesto Balaktaw. This claim is untenable. In the first place, the criminal record
of Balaktaw cannot be considered as newly discovered evidence because the same was
available to the defense much prior to the trial of this Case. It appears that said record
can be obtained from the Criminal Identification Section of the Manila Police Department
for, with the exception of one conviction rendered on September 1, 1955, all the other
convictions and charges date as far back as January 19, 1955, months prior to the trial of
the instant case. In the second place, the fact that a person has been previously
convicted of a crime does not necessarily disqualify him as a witness for he may still
prove to be a truthful one..
The claim that the trial court also erred in not allowing the defense to prove that the
deceased had a violent, quarrelsome or provocative character cannot also deserved
consideration. While good or bad character may be availed of as an aid to determine the
probability or improbability of the commission of an offense (Section 15, Rule 123), such
is not necessary in crime of murder where the killing is committed through treachery
premeditation. The proof of such character may only be allowed in homicide cases to
show "that it has produced a reasonable belief of imminent danger in the mind of the
accused and a justifiable conviction that a prompt defensive action was necessary."
(Moran Comments on the Rules of Court, 1952 ed, Vol. 3, 126.) This rule does not apply
to cases of murder.
While the Court is the opinion that the evidence is sufficient to convict both appellants of
the crime charged, some members however expressed doubt as to propriety of imposing
the extreme penalty and so, for lack of the necessary number of votes, the Court has
resolved to impose upon them the penalty of reclusion perpetua.
WHEREFORE, the decision appealed from is modified in the sense of imposing upon
appellants merely the penalty of reclusion perpetua, affirming the decisions in all other
respects, with costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Labrador, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ., concur.
[G.R. No. 120158-59. September 15, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELESEO CHENG,
ALEJANDRO MALUBAY, and SALVADOR SIOCO, accused. ELESEO
CHENG, accused-appellant.
DECISION
MELO, J.:
Convicted on two counts of murder are appellant Eleseo Cheng and co-accused
Salvador Sioco (who later escaped from detention) in a judgment, the dispositive portion
of which reads:
WHEREFORE, in the light of the foregoing considerations, the Court finds
1. In Criminal Case No. 89-73804 the accused, ELESEO CHENG and SALVADOR
SIOCO, guilty beyond reasonable doubt of the crime of MURDER, as defined and
penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the
aforequoted information and, accordingly, hereby sentences each of them to suffer the
penalty of reclusion perpetua with the accessory penalties provided by law, both to pay,
subsidiarily and jointly; to the heirs of Esperanza Viterbo represented by her mother,
Esperanza Viterbo, Sr., the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil
indemnification and the additional amount of TEN THOUSAND PESOS (P10,000.00) as
moral damages, without subsidiary imprisonment in case of insolvency; and each to pay
one-third (1/3) of the costs.
2. In Criminal Case No. 89-73805 the accused, ELESEO CHENG and SALVADOR
SIOCO, guilty beyond reasonable doubt of the crime of MURDER, as defined and
penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the
aforequoted information and, accordingly, hereby sentences each of them to suffer the
penalty of reclusion perpetua with the accessory penalties provided by law and each to
pay one-third (1/3) of the costs.
Because no heir/relative of the deceased, Yehia Aburawash Mohammed was presented
to testify on the civil aspect of the case, the Court reserves to his heirs the right to file suit
for civil indemnification and/or damages.
Finally, in the service of their sentences, the two accused aforenamed shall be credited
with the full time during which they underwent preventive imprisonment provided they
voluntarily agreed in writing to abide by the same disciplinary rules imposed upon
convicted prisoners; otherwise, they shall be credited to only four-fifths (4/5) thereof
(Article 29, Revised Penal Code, as amended by Republic Act No. 6127).
3. In both Criminal Cases Nos. 89-73804 & 89-73805 the Court finds the accused,
ALEJANDRO MALUBAY, NOT GUILTY of the crime of MURDER, as defined and
penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the
aforequoted two informations and, accordingly, hereby ACQUITS him thereof for
insufficiency of evidence, with one-third (1/3) costs de oficio in these two cases.
The Prison Officer, City Jail of Manila is ordered immediately upon receipt of a copy of
this Decision, to release from his custody the person of accused Alejandro Malubay
unless there is other legal ground or cause for his further detention.
SO ORDERED.
(pp. 68-68a, Rollo.)
The herein criminal cases were commenced with the filing of two Informations for
the crime of murder against herein accused-appellant Eleseo Cheng, Alejandro Malubay,
and Salvador Sioco, pertinently reading as follows:
Criminal Case No. 89-73804
That on or about February 21, 1989, in the City of Manila, Philippines, the said accused
conspiring and confederating together and helping one another did then and there
willfully, unlawfully and feloniously with intent to kill and with treachery and evident
premeditation, and with the use of superior strength on the victim who was alone and
unarmed, attack, assault and use personal violence upon one Esperanza Viterbo, by
then and there shooting her three (3) times with an unknown caliber thereby inflicting
upon her mortal and fatal gunshots wounds, which were the direct and immediate cause
of her death thereafter.
Contrary to law.
(p. 2, Rollo.)
Criminal Case No. 89-73805
That on or about February 21, 1989, in the City of Manila, Philippines, the said accused
conspiring and confederating together and helping one another did then and there
willfully, unlawfully and feloniously with intent to kill and with treachery and evident
premeditation, and with the use of superior strength on the victim who was alone and
unarmed, attack, assault and use personal violence upon one Yehia Abu Rawack
Mohamad an Egyptian national, by then and there shooting the latter three (3) times,
hitting him in the head with an unknown caliber thereby inflicting upon him mortal and
fatal gunshots wounds, which were the direct and immediate cause of his death
thereafter.
Contrary to law.
(p. 3, Rollo.)
At the arraignment on August 11, 1989, accused-appellant and his co-accused
Salvador Sioco, then assisted by their counsel de parte, Atty. Arsenio de Leon, entered a
plea of "not guilty" to the charges against them. Similarly, accused Alejandro Malubay,
then assisted by counsel de parte, Atty. Augusto Jimenez, pleaded "not guilty".
Thereafter, trial on the merits ensued, following which, judgment was rendered
convicting accused-appellant and Salvador Sioco, and acquitting co-accused Alejandro
Malubay for insufficiency of evidence.
Accused-appellant and Salvador Sioco filed separate motions for reconsideration of
said decision, with the former raising the following grounds: (1) that because he was a
member of the Integrated National Police on his tour of duty on the date and time of the
incident as charged, jurisdiction over the offense and authority to hear, try, and decide
the case against him is conferred on a court martial, not a civil court, and (2) in the
alternative, that assuming ex gratia that the court has jurisdiction, the prosecution
evidence engendered reasonable doubt in many aspects, thus, his conviction is
erroneous. The motion, as well as its supplement, were denied by the trial court in its
order dated November 7, 1994.
On December 8, 1994, accused-appellant seasonably filed a notice of
appeal. Much earlier, however, on January 1, 1993, convicted felon Salvador Sioco
escaped from Camp General Ricardo G. Papa, Sr., Bicutan, Taguig, Metro Manila. For
this reason, and also because his notice of appeal was filed four days late, the trial court
denied his appeal.
Now, to the background facts as supported by the record:
 On February 20, 1989, jail guards Edwin Ramos and Redentor Lamiao were in the
night shift at Gate 1 of the Manila City Jail, their tour of duty commencing at 7 P.M. and
ending at 7 A.M. the following day. Early in the morning of February 21, 1989, Ramos
allowed Yehia Aburawash, an Egyptian national who had been previously detained in the
city jail, to enter the premises together with a female companion. Before 4 A.M.,
Aburawash and his companion went out of the jail and some time thereafter, or at about
4 A.M., accused-appellant who was then on duty on the night shift escorted out co-
accused and then a detainee in the said city jail, Patrolman Alex Malubay, without any
authorization from the desk officer or platoon commander on duty. Jail Guard Ramos
asked accused-appellant to secure the approval of the desk officer but accused-appellant
simply ignored Ramos and continued on his way out.
At about 4:30 oclock that same morning, Emma Ruth Ilocso and her companions
Catalina Balboa, and Marivic Policarpio, having just come from a disco joint, were at the
corner of Claro M. Recto Avenue and Quezon Boulevard, right outside the vicinity of
Manila City Jail. Ilocso decided to pass by the city jail to see her brother who was
detained thereat. She, however, stopped at a nearby Burger Machine stand to have
the P100.00 she intended to give her brother broken to smaller denominations.
It was while she was at the burger stand that Ilocso witnessed the commission of
the crime. Ilocso saw the Egyptian national, Yehia Aburawash, at the center island of
Quezon Boulevard. She recognized him because she had previously seen him while the
latter was detained at the same city jail for swindling. She also saw Aburawashs female
companion who was later identified to be Esperanza Viterbo. Ilocso observed that
Aburawash and Viterbo were then engaged in an argument with accused-appellant,
Sioco, and a third man. Thereupon, she heard the first gunfire from accused-appellant
which caused Aburawash to fall to the ground. Two shots then quickly followed, one from
Sioco, and another from accused-appellant. Afterwards, accused-appellant and Sioco
went after Viterbo who ran towards the burger stand. Accused-appellant and Sioco told
Viterbo that she would be brought to a waiting cab. However, when the two were already
beside her, they both shot her, after which the two ran towards the direction of the
Central Market.
At about 5:20 that morning, Patrolman Nelson Sarsonas, an investigator of the
Homicide Section of the Western Police District, received a report from PC/Sgt. Alejandro
Lopez of the Criminal Investigation Service that there were two dead bodies found near
Quezon Boulevard and Claro M. Recto Avenue. After notifying several other concerned
agencies, Pat. Sarsonas proceeded to the scene of the crime to investigate.
The two dead bodies were brought to the National Bureau of Investigation for
autopsy. Dr. Maximo Reyes, who performed the examination, testified during the trial that
the three gunshot wounds on Aburawash were all fatal as they involved the brain. He
likewise testified that the gunshot wounds of Viterbo at the neck, face, and head were all
fatal because they involved vital organs. He also observed that the sizes of the wounds
concerned were different, prompting him to opine that at least two firearms were used,
and that it was possible that more than one assailant was involved.
In the appeal now before us, accused-appellant raises as his first issue the question
of jurisdiction. He contends that by virtue of Section 1 of Presidential Decree No. 1850,
the trial court had no jurisdiction to hear, try, and decide the cases against him. He
argues that on the date of the commission of the crimes on February 21, 1989, he was
still an active member of the Integrated National Police and assigned as jail guard at the
Manila City Jail. He assails the trial courts finding that he was already dismissed from
service when the two Informations against him were filed in court on June 6, 1989,
claiming that he received the copy of the special order on his dismissal only on June 7,
1989.Besides, he claims that this order of dismissal is still pending appeal before the
Office of the Judge Advocate. For want of jurisdiction, he implores that this Court dismiss
the cases and declare the judgment of the court a quo to be null and void.
We find the argument devoid of merit.
While it is true that jurisdiction over the subject matter of a case cannot be waived
and may be assailed at any stage in the proceedings, even for the first time on appeal,
this ruling presupposes that the factual basis for determining such want of jurisdiction is
extant in the record of the case and is borne by the evidence.
Should there be nothing on record which may indicate lack of jurisdiction, this Court
will sustain the existence thereof.
Accused-appellant invokes Section 1, of Presidential Decree No. 1850, as
amended, which provides:
Section 1. Court-Martial Jurisdiction over Integrated National Police and Members of the
Armed Forces. Any provision of law to the contrary notwithstanding - (a) uniformed
members of Integrated National Police who commit any crime or offense cognizable by
the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in
accordance with Commonwealth Act No. 408, as amended, otherwise known as the
Articles of War; (b) all persons subject to military law under Article 2 of the aforecited
Articles of War who commit any crime or offense shall be exclusively tried by courts-
martial or their case disposed under the said Articles of War. Provided, that, in either of
the aforementioned situations, the case shall be disposed of or tried by the proper civil or
judicial authorities when court martial jurisdiction over the offense has prescribed under
Article 38 of Commonwealth Act Numbered 48, as amended, or court-martial jurisdiction
over the person of the accused military or Integrated National Police personnel can no
longer be exercised by virtue of their separation from the active service without
jurisdiction having duly attached beforehand unless otherwise provided by law. Provided,
further, that the president may in the interest of justice, order or direct, at any time before
arraignment, that a particular case be tried by the appropriate civil court.
The record reveals that on February 21, 1989, when the crimes charged were
committed, accused-appellant was undoubtedly in active service. Under Paragraph (a) of
the above-quoted provision, exclusive jurisdiction over accused-appellant and the
offense should have pertained to the courts martial save only in the following exceptions,
namely: (1) when court martial jurisdiction over the offense has prescribed under Article
38 of Commonwealth Act No. 48, as amended, or (2) court-martial jurisdiction over the
person of the accused military or Integrated National Police personnel can no longer be
exercised by virtue of his separation from active service without jurisdiction having duly
attached beforehand unless otherwise provided by law; or (3) the president, in the
interest of justice, orders or directs at any time before arraignment, that the particular
case be tried by the appropriate civil court.
The evidence on record shows that the cases at bench fall under the second
exception. During the hearing conducted on February 15, 1990 when accused-appellant
was presented as defense witness, he stated his personal circumstances as follows:
Pat. Eleseo Cheng y Bello, 36 years old, married, as of now jobless but before I was with
the Western Police District, residing at 870-C Norte Street, Sta. Cruz, Manila.
(p. 8, tsn, Feb. 15, 1990)
And when the direct examination by his counsel de parte, Atty. Arsenio de Leon,
proceeded, the following questions and answers were taken:
Q: Mr. Eleseo Cruz. I heard you said that you are now in jobless?
A: Yes, sir.
Q: Since when?
A: May 20, 1989, sir.
(Ibid.)
There is here an express judicial admission by accused-appellant that as of May
20, 1989, he was already separated from active service in the INP. When accused-
appellant raised the issue of jurisdiction for the first time in his motion for reconsideration
of the judgment of conviction, he presented no further evidence. In fact, it was the
prosecution, during the hearing conducted on June 7, 1991 of said motion for
reconsideration, which presented a copy of Special Order No. 65-P to prove that
accused-appellant was dismissed from the police service with prejudice to future re-entry
into the INP effective as of May 18, 1989 (See: Exh. A-Opposition, p. 417, Record). It
was only then that accused-appellant began claiming that he received a copy of the
special order only on June 7, 1989, or a day after the filing of the Informations in the
instant cases. Verily, we find such posture by accused-appellant, who at that stage had
already replaced Atty. de Leon with Atty. Renato T. Paguio, as a mere after-thought, to
which the trial court correctly accorded no weight.
It must be stressed that the burden of proving lack of jurisdiction is upon him who
claims such. The Court significantly notes that accused-appellant presented no
competent and admissible evidence to show that as of June 6, 1989, the date of the filing
of the Informations, he was still in active service with the INP. Accused-appellants claim
that he received his copy of Special Order No. 65-P relative to his summary dismissal
only on June 7, 1989 simply remained an allegation. We have consistently ruled that
mere allegation is not evidence (Lagasca vs. De Vera, 79 Phil. 376 [1947]), and such
unproved allegation may not be given any favorable consideration whatsoever. On the
contrary, we have reason to believe that accused-appellant received the copy of said
Special Order No. 65-P on May 20, 1989 as he admitted in his direct testimony.
In a similar manner, accused-appellants claim that he appealed the order of
dismissal to the Judge Advocate General has remained unsupported by any proof. He
claimed in his supplemental motion for reconsideration that he wrote the Judge Advocate
General asking for certification as to the status of his appeal. No proof was ever
presented to show that said letter, if any, was in fact sent to and received by the Judge
Advocate General. More significantly, he claimed that the Judge Advocate General sent
a reply-letter dated June 5, 1991 to his counsel, Atty. Paguio (See: p. 5 Supplemental
Motion for Reconsideration; p. 430, Record) but the entire record is bereft of any copy of
the said alleged reply- letter. This being so, accused-appellants claim that his dismissal
effective May 18, 1989 had not yet attained finality when the Informations were filed on
June 6, 1989 deserves scant consideration. It appears to be another after-thought on the
part of accused-appellant.
Thus, just like in the case of People vs. Dulos (237 SCRA 141 [1994]) this issue of
jurisdiction may be disposed of by stating that while it is true that Section 1, Presidential
Decree No. 1850, as amended, vests exclusive jurisdiction upon courts martial to try
criminal offenses committed by members of the INP, whether or not done in the actual
performance of their official duties, accused-appellants case falls under the second
exception contained in the proviso of the section which confers upon civil courts
jurisdiction over the person of the accused where he was discharged from active service
without military jurisdiction having duly attached over him before his separation. The
court, a quo, therefore had jurisdiction over accused-appellant for the offenses charged.
Accused-appellant also assails the credibility of Emma Ruth Ilocso who rendered
an eyewitness account of the killing of Esperanza Viterbo and Yehia Aburawash
Mohammed. Accused-appellant claims that there appear in the record some facts or
circumstances of weight and influence which were misappreciated by the trial court. One
is the alleged loose morals of Emma Ruth Ilocso. Another such factor would refer to the
supposed inconsistencies in some of the details between her declarations during the
administrative proceedings and the trial of the criminal case.
Accused-appellants efforts to discredit Emma Ruth Ilocso are futile.
We stress that in this jurisdiction, loose morals per se is not a ground to discredit a
witness. There must be clear indications militating against her credibility other than her
being a person of ill repute. Otherwise stated, even a prostitute may be a competent
witness to the extent that even with her sole testimony an accused may be duly
convicted, provided that such witness is not coached and her testimony is not rehearsed
and on all other counts worthy of credence beyond reasonable doubt.
The all too sweeping contention in accused-appellants motion for reconsideration
that it is improbable that Ilocso will tell the exact truth where there is the slightest motive
for testifying falsely as she would probably be willing to bring her evidence to market as
she was ready to offer her person for sale, presents a cynical and too dark an outlook of
a human person for acceptance. In the first place, Ilocso has not been shown to be a
person of ill repute. Then too, the reputation of this witness is not germane to the case.
To further discredit Emma Ruth Ilocso, accused-appellant capitalizes on the
supposed discrepancies in her answers as to exactly where she and her companions
came from before they came to the city jail, or who her companions were. He also points
out her supposed lie concerning her personal circumstances such as her educational
background. Ilocso was forthright enough to say that some of her statements in the
administrative case are not correct and true. But she ascribes, which reason we believe,
the same to her constant fear as she was threatened by accused-appellant, a policeman
whom she knows could kill as he did kill the herein victims. In any event, the supposed
untrue statements do not deal with Ilocsos positive identification of accused-appellant
and his companion, Sioco, both of whom Ilocso had known 2 years previous to the
incident.
Under the foregoing consideration, there is no cogent reason for the Court to depart
from the well established doctrine that on questions of credibility of witnesses, this Court
will hold with high respect the factual findings of the trial judge who actually observed the
demeanor of the witnesses at the witness stand.
Accused-appellants argument that conspiracy has not been established in the
instant case with the same quantum of evidence required for conviction does not
persuade us. The unity of purpose of accused-appellant and co-accused Sioco was
clearly established by the plain and clear testimony of witness Ilocso. She saw the two
co-accused engaged in an argument with Aburawash before both accused shot the
latter. Immediately thereafter, both accused went after a defenseless woman, Viterbo,
who ran towards the burger stand and there they shot her too. There is no indication
whatsoever that either of them desisted from executing all the overt acts necessary to
perpetrate the two crimes of murder. Clearly, there was conspiracy.
Finally, on the last issue involving the existence of the qualifying circumstances, we
agree with the Solicitor General that treachery attended the commission of the crime,
qualifying the crimes to murder.
As correctly pointed out by the Solicitor General:
. . . There is treachery when the offender commits any of the crimes against the person
employing means, methods and forms in the execution thereof which tend directly and
specially to insure its execution without the risk to himself arising from the defense which
the offended party might make (Article 14, paragraph 16, Revised Penal Code). For the
said circumstance to be present, two conditions must concur, to wit: (a) the employment
of a manner of execution which would insure the offenders safety from any defensive or
retaliatory act by the offended party such that no opportunity is given the latter to defend
himself or retaliate and (b) such means of execution was deliberately or consciously
adopted (People vs. Crisostomo, 222 SCRA 93).
Where the victim was without any opportunity to repel the aggression or to escape,
treachery can be appreciated to qualify the killing to murder (People vs. Maestro, 222
SCRA 538). In treachery, what is decisive is that the attack was executed in such a
manner as to make it impossible for the victim to retaliate (People vs. Buela, 227 SCRA
534).
(pp. 37-38, Appellees Brief.)
However, the trial court was in error when it took into consideration evident
premeditation and abuse of superior strength.
Evident premeditation was not proved by the evidence. The trial court erroneously
surmised that when accused-appellant followed Aburawash and Viterbo coming from
inside the premises of the city jail, co-accused Sioco was already outside waiting for
them. From this the court a quo concluded that the act of shooting Aburawash in the
head three times and forcibly bringing out Viterbo from the burger stand where she
sought refuge, telling her that she will be brought to a waiting taxicab, but instead
coldbloodedly shooting her to death, confirmed that their assassinations were well
planned. Hence, the conclusion that there was evident premeditation (p. 34 Decision; p.
344, Record).
We do not agree. There was no evidence directly showing any preconceived plan to
liquidate or kill the victims. What appears on record was that the accused-appellant and
Aburawash engaged in a heated argument before the crime was committed. There is the
possibility that the decision to shoot the victims was made only there and then. This
consideration should at least cast reasonable doubt as to the existence of a plan to kill
the victims. For evident premeditation to be appreciated against an accused, the
prosecution must prove the following: (1) the time when the offender determined to
commit the crime; (2) an act manifestly indicating that the culprit has clung to his
determination, and (3) sufficient lapse of time between the determination and execution
to allow him to reflect upon the consequences of his act (Par. 13, Art. 14, Revised Penal
Code; People vs. Cordero, 217 SCRA 1[1993]). These elements have not been shown in
the instant case.
The trial court likewise erred in separately appreciating abuse of superior strength
which is already absorbed in the qualifying circumstance of alevosia or treachery (People
vs. Villanueva, 225 SCRA 353 [1993]; People vs. Borja, 91 SCRA 340 [1979]; People vs.
Pasilan, 14 SCRA 694 [1965]; People vs. Escalona, 1 SCRA 891 [1961]).
In sum, the killings in the instant case were qualified to murder by treachery. The
penalty imposed under Article 248 of the Revised Penal Code is reclusion temporal in its
maximum period to death. There being no aggravating circumstances present, the
imposable penalty is the medium thereof which is reclusion perpetua.
The trial court awarded civil indemnity payable jointly and severally by accused-
appellant and convicted felon Salvador Sioco to the heirs of Esperanza Viterbo in the
amount of P50,000.00 for her death, and the additional amount of P10,000.00 as moral
damages. The Court sustains the award of P50,000.00. However, finding no justification
for the additional amount of P10,000.00 from the judgment under review, the Court is
inclined to delete the same.
WHEREFORE, premises considered, the conviction of accused-appellant by the
trial court and the corresponding penalties imposed are hereby AFFIRMED with the
MODIFICATION that the award of moral damages is deleted, with no special
pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Francisco and Panganiban, JJ., concur.
[G.R. No. 132164. October 19, 2004]
CIVIL SERVICE COMMISSION, petitioner, vs. ALLYSON BELAGAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
When the credibility of a witness is sought to be impeached by proof of his
reputation, it is necessary that the reputation shown should be that which existed before
the occurrence of the circumstances out of which the litigation arose, [1] or at the time of
the trial and prior thereto, but not at a period remote from the commencement of the
suit.[2]This is because a person of derogatory character or reputation can still change or
reform himself.
For our resolution is the petition for review on certiorari of the Court of Appeals
Decision[3] dated January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive portion of
which reads:
WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No.
972423 dated April 11, 1997 of the respondent Civil Service Commission are hereby set
aside. The complaint against petitioner Allyson Belagan filed by Magdalena Gapuz is
hereby DISMISSED.
The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately
reinstated to his position without loss of seniority, retirement, backwages and other rights
and benefits.
SO ORDERED.
The instant case stemmed from two (2) separate complaints filed respectively by
Magdalena Gapuz, founder/directress of the Mother and Child Learning Center, and
Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School, against
respondent Dr. Allyson Belagan, Superintendent of the Department of Education, Culture
and Sports (DECS), all from Baguio City. Magdalena charged respondent with sexual
indignities and harassment, while Ligaya accused him of sexual harassment and various
malfeasances.
Magdalenas sworn complaint alleges that sometime in March 1994, she filed an
application with the DECS Office in Baguio City for a permit to operate a pre-school. One
of the requisites for the issuance of the permit was the inspection of the school premises
by the DECS Division Office. Since the officer assigned to conduct the inspection was
not present, respondent volunteered his services. Sometime in June 1994, respondent
and complainant visited the school. In the course of the inspection, while both were
descending the stairs of the second floor, respondent suddenly placed his arms around
her shoulders and kissed her cheek. Dumbfounded, she muttered, Sir, is this part of the
inspection? Pati ba naman kayo sa DECS wala ng values? Respondent merely
sheepishly smiled. At that time, there were no other people in the area.
Fearful that her application might be jeopardized and that her husband might harm
respondent, Magdalena just kept quiet.
Several days later, Magdalena went to the DECS Division Office and asked
respondent, Sir, kumusta yung application ko? His reply was Mag-date muna tayo. She
declined, explaining that she is married. She then left and reported the matter to DECS
Assistant Superintendent Peter Ngabit.
Magdalena never returned to the DECS Division Office to follow up her application.
However, she was forced to reveal the incidents to her husband when he asked why the
permit has not yet been released. Thereupon, they went to the office of the respondent.
He merely denied having a personal relationship with Magdalena.
Thereafter, respondent forwarded to the DECS Regional Director his
recommendation to approve Magdalenas application for a permit to operate a pre-school.
Sometime in September 1994, Magdalena read from a local newspaper that certain
female employees of the DECS in Baguio City were charging a high-ranking DECS
official with sexual harassment. Upon inquiry, she learned that the official being
complained of was respondent. She then wrote a letter-complaint for sexual indignities
and harassment to former DECS Secretary Ricardo Gloria.
On October 4, 1994, respondent was placed under suspension.
On the part of Ligaya Annawi, she alleged in her complaint that on four separate
occasions, respondent touched her breasts, kissed her cheek, touched her groins,
embraced her from behind and pulled her close to him, his organ pressing the lower part
of her back.
Ligaya also charged respondent with: (1) delaying the payment of the teachers
salaries; (2) failing to release the pay differentials of substitute teachers; (3) willfully
refusing to release the teachers uniforms, proportionate allowances and productivity pay;
and (4) failing to constitute the Selection and Promotion Board, as required by the DECS
rules and regulations.
The DECS conducted a joint investigation of the complaints of Magdalena and
Ligaya. In his defense, respondent denied their charge of sexual harassment. However,
he presented evidence to disprove Ligayas imputation of dereliction of duty.
On January 9, 1995, the DECS Secretary rendered a Joint Decision [4] finding
respondent guilty of four (4) counts of sexual indignities or harassments committed
against Ligaya; and two (2) counts of sexual advances or indignities against Magdalena.
He was ordered dismissed from the service. The dispositive portion of the Joint Decision
reads:
WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in
the two above-entitled cases, finding:
a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City
Schools Division GUILTY of the four counts of sexual indignities or
harassments committed against the person and honor of complainant
Miss Ligaya Annawi, a Baguio City public school teacher, while in the
performance of his official duties and taking advantage of his office. He is,
however, ABSOLVED of all the other charges of administrative
malfeasance or dereliction of duty.
b) Respondent Baguio City Superintendent Allyson Belagan likewise
GUILTY of the two counts of sexual advances or indignities committed
against the person and honor of complainant Mrs. Magdalena Gapuz, a
private school teacher of Baguio City, while in the performance of his
official duties and taking advantage of his office.
Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from
the government service, with prejudice to reinstatement and all his retirement benefits
and other remunerations due him are HEREBY DECLARED FORFEITED in favor of the
government.
SO ORDERED.[5]
Upon appeal, the Civil Service Commission (CSC), on September 23, 1996,
promulgated Resolution No. 966213[6] affirming the Decision of the DECS Secretary in
the case filed by Magdalena but dismissing the complaint of Ligaya. The CSC ruled that
respondents transgression against Magdalena constitutes grave misconduct. Thus:
The acts of Belagan are serious breach of good conduct since he was holding a position
which requires the incumbent thereof to maintain a high degree of moral uprightness. As
Division Superintendent, Belagan represents an institution tasked to mold the character
of children. Furthermore, one of his duties is to ensure that teachers in his division
conduct themselves properly and observe the proper discipline. Any improper behavior
on his part will seriously impair his moral ascendancy over the teachers and students
which can not be tolerated. Therefore, his misconduct towards an applicant for a
permit to operate a private pre-school cannot be treated lightly and constitutes the
offense of grave misconduct.
WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave
misconduct and imposed the penalty of DISMISSAL from the service with all the
accessory penalties. The decision of the DECS Secretary is modified accordingly. [7]
On October 29, 1996, respondent seasonably filed a motion for reconsideration,
contending that he has never been charged of any offense in his thirty-seven (37) years
of service. By contrast, Magdalena was charged with several offenses before the
Municipal
Trial Court (MTC) of Baguio City, thus:
1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3,
1980)
2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13,
1982)
3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982)
4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982)
5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985)
6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985)
7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30,
1985)
8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18,
1985)
9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18,
1985)
10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985)
11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985)
12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991)
13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29,
1991)
14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2,
1986)
15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2,
1986)
16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24,
1986)
17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4,
1986)
18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7,
1987)
19. Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987)
20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December
13, 1985)
21. Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985)
22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986) [8]
In addition, the following complaints against Magdalena were filed with the
Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside, both in Baguio
City:
1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS,
UNJUST VEXATION, RUMOR MONGERING
2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE
THREATS & ORAL DEFAMATION
3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL
DEFAMATION and FALSE ACCUSATION
4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and
THREATS
5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for
HABITUAL TROUBLE MAKER
6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION
7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION
8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR
MONGERING
9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL
DEFAMATION
10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL
DEFAMATION
11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION
12. Vistro Salcedo case (May 8, 1979)
Where Mrs. Gapuz was spreading rumors against Barangay
Captain and Police Chief
13. Demolition Scandal (May 10, 1979)
Where she called all the residents of their Barangay for an
emergency meeting and where she shouted invectives against the
residents
14. Incident of June 13, 1979
Mrs. Gapuz shouted invectives against the Barangay Sanitary
Inspector
 15. Incident of August 25, 1979
Mrs. Gapuz shouted invectives against the servants of Mr. De
Leon
16. Incident of August 26, 1979
Mrs. Gapuz terrorized the council meeting
17. Incident of September 2, 1978
Mrs. Clara Baoas was harassed by Mrs. Gapuz
18. Incident of September 9, 1979
Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council
meeting
19. Incident of September 10, 1979
Mrs. Gapuz was hurling invectives along her alley in the early
morning
20. Incident of September 13, 1979
Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Santos
with the latters consent
21. Incident of September 21, 1979
Mrs. Gapuz was shouting and hurling invectives scandalously
around her residence
22. Incident of September 21, 1979
Mrs. Gapuz was shouting, complaining about alleged poisoned
sardines near the premises of her residence which killed her hen.
23. Incident of September 23, 1979
Mrs. Gapuz was shouting unpleasant words around the
neighborhood. She did not like the actuations of a bayanihan
group near the waiting shed.[9]
Respondent claimed that the numerous cases filed against Magdalena cast doubt
on her character, integrity, and credibility.
In its Resolution No. 972423[10] dated April 11, 1997, the CSC denied respondents
motion for reconsideration, holding that:
The character of a woman who was the subject of a sexual assault is of minor
significance in the determination of the guilt or innocence of the person accused
of having committed the offense. This is so because even a prostitute or a woman
of ill repute may become a victim of said offense.
As such, the fact that complainant Magdalena Gapuz is shown to have had cases before
the regular courts for various offenses and was condemned by her community for
wrongful behavior does not discount the possibility that she was in fact telling the truth
when she cried about the lecherous advances made to her by the respondent. x x x
Respondent then filed with the Court of Appeals a petition for review. As stated
earlier, it reversed the CSC Resolutions and dismissed Magdalenas complaint.
The Appellate Court held that Magdalena is an unreliable witness, her character
being questionable. Given her aggressiveness and propensity for trouble, she is not one
whom any male would attempt to steal a kiss. In fact, her record immediately raises an
alarm in any one who may cross her path.[11] In absolving respondent from the charges,
the Appellate Court considered his unblemished service record for 37 years.
Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising
the following assignments of error:
I. The Supreme Court may rule on factual issues raised on appeal where
the Court of Appeals misappreciated the facts. Furthermore, where
the findings of the Court of Appeals and the trial court are contrary to
each other, the Supreme Court may review the record and evidence.
The Court of Appeals erred in not giving credence to the testimony of
complainant Magdalena Gapuz despite convincing and overwhelming
signs of its truthfulness.
II. The Court of Appeals committed reversible error when it failed to give
due weight to the findings of the DECS, which conducted the
administrative investigation, specifically with respect to the
credibility of the witnesses presented.
III. The Court of Appeals erred in ruling that respondent should be
penalized under Sec. 22 (o) of the Omnibus Rules Implementing Book
V and not Sec. 22 (e) of said rules.[12]
In his comment, respondent maintains that Magdalenas derogatory record
undermines the verity of her charge and that the Court of Appeals is correct in dismissing
it.
The petition is impressed with merit.
The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is
credible. This is a question of fact which, as a general rule, is not subject to this Courts
review.
It is a rule of long standing that factual findings of the Court of Appeals, if supported
by substantial evidence, are conclusive and binding on the parties and are not
reviewable by this Court.[13] This Court is, after all, not a trier of facts. One of the
exceptions, however, is when the findings of the Court of Appeals are contrary to those
of the trial court or a quasi-judicial body, like petitioner herein.[14]
Here, the Court of Appeals and the CSC are poles apart in their appreciation of
Magdalenas derogatory record. While the former considered it of vital and paramount
importance in determining the truth of her charge, the latter dismissed it as of minor
significance. This contrariety propels us to the elusive area of character and reputation
evidence.
Generally, the character of a party is regarded as legally irrelevant in determining a
controversy.[15] One statutory exception is that relied upon by respondent, i.e., Section 51
(a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here:
SEC. 51. Character evidence not generally admissible; exceptions.
(a) In Criminal Cases:
xxxxxx
(3) The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
It will be readily observed that the above provision pertains only to criminal cases,
not to administrative offenses. And even assuming that this technical rule of evidence
can be applied here, still, we cannot sustain respondents posture.
Not every good or bad moral character of the offended party may be proved under
this provision. Only those which would establish the probability or improbability of the
offense charged. This means that the character evidence must be limited to the traits and
characteristics involved in the type of offense charged.[16] Thus, on a charge of rape -
character for chastity, on a charge of assault - character for peaceableness or violence,
and on a charge of embezzlement - character for honesty.[17] In one rape case, where it
was established that the alleged victim was morally loose and apparently uncaring about
her chastity, we found the conviction of the accused doubtful. [18]
In the present administrative case for sexual harassment, respondent did not offer
evidence that has a bearing on Magdalenas chastity. What he presented are charges for
grave oral defamation, grave threats, unjust vexation, physical injuries, malicious
mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible
under the above provision because they do not establish the probability or improbability
of the offense charged.
Obviously, in invoking the above provision, what respondent was trying to establish
is Magdalenas lack of credibility and not the probability or the improbability of the charge.
In this regard, a different provision applies.
 Credibility means the disposition and intention to tell the truth in the testimony
given. It refers to a persons integrity, and to the fact that he is worthy of belief. [19] A
witness may be discredited by evidence attacking his general reputation for
truth,[20] honesty[21] or integrity.[22] Section 11, Rule 132 of the same Revised Rules on
Evidence reads:
SEC. 11. Impeachment of adverse partys witness. A witness may be impeached by the
party against whom he was called, by contradictory evidence, by evidence that his
general reputation for truth, honesty, or integrity is bad, or by evidence that he has
made at other times statements inconsistent with his present testimony, but not by
evidence of particular wrongful acts, except that it may be shown by the examination
of the witness, or the record of the judgment, that he has been convicted of an
offense.
Although she is the offended party, Magdalena, by testifying in her own behalf,
opened herself to character or reputation attack pursuant to the principle that a party
who becomes a witness in his own behalf places himself in the same position as
any other witness, and may be impeached by an attack on his character or
reputation.[23]
With the foregoing disquisition, the Court of Appeals is correct in holding that the
character or reputation of a complaining witness in a sexual charge is a proper subject of
inquiry. This leads us to the ultimate question is Magdalenas derogatory record
sufficient to discredit her credibility?
A careful review of the record yields a negative answer.
First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to
acts committed in the 80s, particularly, 1985 and 1986. With respect to the complaints
filed with the Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts
complained of took place in 1978 to 1979. In the instant administrative case, the offense
was committed in 1994. Surely, those cases and complaints are no longer reliable proofs
of Magdalenas character or reputation. The Court of Appeals, therefore, erred in
according much weight to such evidence. Settled is the principle that evidence of
ones character or reputation must be confined to a time not too remote from the
time in question.[24] In other words, what is to be determined is the character or
reputation of the person at the time of the trial and prior thereto, but not at a period
remote from the commencement of the suit.[25] Hence, to say that Magdalenas
credibility is diminished by proofs of tarnished reputation existing almost a decade ago is
unreasonable. It is unfair to presume that a person who has wandered from the path of
moral righteousness can never retrace his steps again. Certainly, every person is
capable to change or reform.
Second, respondent failed to prove that Magdalena was convicted in any of the
criminal cases specified by respondent. The general rule prevailing in a great majority of
jurisdictions is that it is not permissible to show that a witness has been arrested or that
he has been charged with or prosecuted for a criminal offense, or confined in
jail for the purpose of impairing his credibility.[26] This view has usually been based upon
one or more of the following grounds or theories: (a) that a mere unproven charge
against the witness does not logically tend to affect his credibility, (b) that innocent
persons are often arrested or accused of a crime, (c) that one accused of a crime is
presumed to be innocent until his guilt is legally established, and (d) that a witness may
not be impeached or discredited by evidence of particular acts of
misconduct.[27] Significantly, the same Section 11, Rule 132 of our Revised Rules on
Evidence provides that a witness may not be impeached by evidence of particular
wrongful acts. Such evidence is rejected because of the confusion of issues and the
waste of time that would be involved, and because the witness may not be prepared to
expose the falsity of such wrongful acts.[28]As it happened in this case, Magdalena was
not able to explain or rebut each of the charges against her listed by respondent.
But more than anything else, what convinces us to sustain the Resolution of the
CSC is the fact that it is supported by substantial evidence. As aptly pointed out by the
Solicitor General, Magdalena testified in a straightforward, candid and spontaneous
manner. Her testimony is replete with details, such as the number of times she and
respondent inspected the pre-school, the specific part of the stairs where respondent
kissed her, and the matter about her transient boarders during summer. Magdalena
would not have normally thought about these details if she were not telling the truth. We
quote her testimony during the cross-examination conducted by DECS Assistant
Secretary Romeo Capinpin and Undersecretary Antonio Nachura, thus:
Q Was there any conversation between you and Dr. Belagan during the
inspection on the first floor and the second floor?
A There was, sir. It was a casual conversation that we had with regard to my
family, background, how the school came about, how I started with the
project. That was all, sir.
Q Nothing about any form of sexual harassment, in words or in deeds?
A Sir, because he inspected the second floor twice, sir. We went up to the
stairs twice, sir.
Q Why?
A I really dont know what was the reason behind, sir. But on the second
inspection, sir, I told him that as of that time I had some transients with
me. I was making use of the premises for transients because that was
summer then, sir. And I already started paying the place so I said, Sir, I
have some transients with me in the evening and he said, You know
Mrs. Gapuz, I am interested to stay in one of the rooms as one your
boarders. But I respectfully declined saying, Sir, I think for delicadeza I
cannot accept you. Not that I dont want you to be here but people might
think that I am keeping you here and that would prejudice my permit, sir.
ASEC R. CAPINPIN:
Q When did the alleged kissing occur? Was it during the first time that
you went up with him or the second time?
A No, sir, on the second time, sir.
Q Second time?
A Yes, sir. We were going down, sir.
Q And you were going down?
A Yes, sir.
Q Do you recall what portion of the stairs where you were during the
alleged kissing?
A Sir, on the topmost of the stairs.
Q Before you went down?
A Yes, sir. At the topmost because there is a base floor going up to the
stairs and it has 16 steps.
Q So, it was not on the 16th step but still on the topmost?
A Yes sir.
Q Part of the floor of the building?
A Yes, sir. Topmost, sir?
ASEC R. CAPINPIN:
Q Will you kindly tell us your relative position at that time?
A Sir, on the second time that we went up and I mentioned about these
transients that I had then and he wanted to stay in the place in one
of the rooms and then I declined and I was still showing the rooms
simultaneously. On the last, the biggest room that I had, he said,
No. Never mind, I am not going to see that anymore. So he waited
for me there and upon reaching the place, as I was to step down on
 the first step going down, he placed his arm and held me tightly
and planted the kiss on my cheek, sir.
Q You said that he wanted to stay in one of the rooms?
A Yes, sir, as a boarder.
Q Is that room used for transients?
A During that time, sir, during the summertime, I made use of the time to get
some transients.
Q And he was telling you that he wanted to occupy one of the rooms?
A Yes, but I declined, sir for delicadeza.
Q At that time, there were no transients yet.
A When he came over for the inspection sir, nobody was there.[29]
The above testimony does not stand in isolation. It is corroborated by Peter Ngabit,
DECS Assistant Division Superintendent. Ngabit testified that Magdalena reported to him
that respondent kissed her and asked her for a date.
Q I would like to call your attention to Exhibit A which is the affidavit of Mrs.
Magdalena B. Gapuz, particularly item no. 8, and may I read for your
information That the Monday after the incident, I went to the DECS
Division Office expecting to get favorable recommendation from the
DECS Regional Office for the issuance of my permit. That I proceeded to
the Superintendent and asked him, Sir, kumusta yung application ko and
he said, mag date muna tayo but I refused and explained that I am
married, after which I proceeded to the Office of Asst. Superintendent
Peter Ngabit to relate the incident and then left the Division Office. Do
you remember if Mrs. Gapuz went to your Office on the particular day?
A Yes, sir.
Q What time was that?
A I cannot remember, sir.
Q Was it morning, afternoon?
A I think it was in the morning, sir.
Q Morning.
A Yes, sir.
Q Early morning?
A About noon, sir.
Q What transpired between you and Mrs. Gapuz in your office?
A When she came to my Office, she was relating about that and she was even
insulting me saying among others that I was a useless fixture in that
Office because I cannot do anything with the processing of her paper or
application.
Q It says here that she would relate the incident to you. Did she relate
any incident?
A Yes, she did sir.
Q What was that incident all about?
A She was saying that when Mr. Belagan went to visit her school, he
stole a kiss from her and that she was saying that when she asked
Supt. Belagan for her papers, she was asked for a date before the
Indorsement. After that, she left.[30]
With Magdalenas positive testimony and that of Ngabit, how can we disregard the
findings of the DECS and the CSC? Surely, we cannot debunk it simply because of the
Court of Appeals outdated characterization of Magdalena as a woman of bad reputation.
There are a number of cases where the triers of fact believe the testimony of a witness of
bad character[31] and refuse to believe one of good character.[32] As a matter of fact, even
a witness who has been convicted a number of times is worthy of belief, when he
testified in a straightforward and convincing manner.[33]
At this juncture, it bears stressing that more than anybody else, it is the DECS
investigating officials who are in a better position to determine whether Magdalena is
telling the truth considering that they were able to hear and observe her deportment and
manner of testifying.[34]
In reversing the CSCs Resolutions, the Court of Appeals ruled that there is ample
evidence to show that Magdalena had a motive in accusing respondent, i.e., to pressure
him to issue a permit. This is unconvincing. The record shows that respondent had
already issued the permit when Magdalena filed her letter-complaint. Indeed, she had no
more reason to charge respondent administratively, except of course to vindicate her
honor.
Petitioner prays that we sustain its ruling penalizing respondent for grave
misconduct and not merely for disgraceful or immoral conduct which is punishable by
suspension for six (6) months and one (1) day to one (1) year for the first
offense.[35] Misconduct means intentional wrongdoing or deliberate violation of a rule of
law or standard of behavior, especially by a government official. [36] To constitute an
administrative offense, misconduct should relate to or be connected with the
performance of the official functions and duties of a public officer.[37] In grave misconduct
as distinguished from simple misconduct, the elements of corruption, clear intent to
violate the law or flagrant disregard of established rule, must be manifest. [38] Corruption
as an element of grave misconduct consists in the act of an official or fiduciary person
who unlawfully and wrongfully uses his station or character to procure some benefit for
himself or for another person, contrary to duty and the rights of others. [39] This is
apparently present in respondents case as it concerns not only a stolen kiss but also a
demand for a date, an unlawful consideration for the issuance of a permit to operate a
pre-school. Respondents act clearly constitutes grave misconduct, punishable by
dismissal.[40]
We are, however, not inclined to impose the penalty of dismissal from the service.
Respondent has served the government for a period of 37 years, during which, he made
a steady ascent from an Elementary Grade School Teacher to Schools Division
Superintendent. In devoting the best years of his life to the education department, he
received numerous awards.[41] This is the first time he is being administratively charged.
He is in the edge of retirement. In fact, he had filed his application for retirement when
Magdalena filed her complaint. Section 16, Rule XIV, of the Rules Implementing Book V
of Executive Order No. 292 provides:
SEC. 16. In the determination of penalties to be imposed, mitigating and
aggravating circumstances may be considered. x x x.
The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform
Rules on Administrative Cases in the Civil Service,[42] which reads in part:
SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the
determination of the penalties to be imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.
The following circumstances shall be appreciated:
xxxxxx
j. length of service
xxxxxx
l. and other analogous cases.
Conformably with our ruling in a similar case of sexual harassment, [43] and
respondents length of service, unblemished record in the past and numerous
awards,[44] the penalty of suspension from office without pay for one (1) year is in order.
While we will not condone the wrongdoing of public officers and employees,
however, neither will we negate any move to recognize and remunerate their lengthy
service in the government.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The CSC Resolution
Nos. 966213 and 972423 are AFFIRMED, subject to the modification that respondent
ALLYSON BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with
full credit of his preventive suspension.
SO ORDERED.
G.R. Nos. L-27680-81 February 27, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
OPENIANO PAJENADO @ PEMING, defendant-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C.
Borromeo and Solicitor Octavio R. Ramirez for plaintiff-appellee.
Ramon C. Aquino as counsel de officio for defendant appellant.
DIZON, J.:
In the Court of First Instance of Samar appellant Openiano Pajenado was charged with
murder (Criminal Case No. 3492, now G.R. No. L-27680) and with illegal possession of a
firearm (Criminal Case No. 3558, now G.R. No. L-27681). Upon arraignment he pleaded
not guilty in both cases, and after a joint trial thereof he was convicted and sentenced as
follows:
Wherefore, in view of the foregoing considerations, the Court finds the
accused Openiano Pajenado alias Peming, guilty beyond reasonable
doubt of the crime of murder and he is hereby condemned to suffer the
penalty of Reclusion Perpetua, to indemnify the heirs of Carlos Tapong
in the amount of P6,000.00 and to pay the cost of suit.
The same accused Openiano Pajenado is likewise guilty beyond
reasonable doubt of illegal possession of firearm and is hereby
sentenced to suffer imprisonment of not less than One (1) year nor
more than Five (5) years and to pay the cost of suit.
The facts established conclusively by the evidence are the following:
At about 12:00 o'clock noon on December 31, 1965 while prosecution witness Epifanio
Cabe was walking along one of the streets of barrio Dapdap, municipality of Las Navas,
North Samar, and arrived in front of the house of one Pablo Jazmines, he saw appellant
holding the now deceased Carlos Tapong by the neck. As the two were apparently
wrestling with each other, Carlito Pajenado, appellant's cousin, intervened and the two
Pajenados were able to throw Tapong to the ground. Carlito Pajenado held Tapong by
the shoulder and pinned him down to the ground, while appellant held him by one leg. As
they thus held Carlos Tapong helpless, appellant drew his gun and fired at him.
Thereupon, Carlito Pajenado stood up and ran away, while appellant remained at the
scene of the crime with his drawn gun until a policeman, another Pajenado (Ernesto),
arrived and took the firearm from him. Carlos Tapong, mortally wounded, was thereafter
carried home by his father and other relatives.
Another prosecution witness, Pelagia Tapong, testified that at noon on the day in
question, while she was at the window of the house of her elder brother, Angel, along the
street where the incident took place, she saw appellant standing on the street; that when
Carlos Tapong appeared, appellant immediately met him and held him by the neck; that
thereafter Carlito Pajenado intervened and with his help appellant was able to fell Carlos
to the ground.
It is not denied that Carlos Tapong died as a result of the gun-shot wound inflicted upon
him on that occasion. Testifying on the nature thereof, Dr. Angel Tan, municipal health
officer of Las Navas, said that he conducted a post mortem examination of the cadaver
on January 1, 1966 and found that the deceased sustained three gun-shot wounds
which, in his opinion, were caused by a single shot from a .45 caliber pistol. The wounds
are described by him in his autopsy report, Exhibits A, A-1 and A-2 as follows:
Gun shot wound with entrance at the postero-medial portion of the
distal third of the thigh making an exit at its upper promixmal third in
the antero-lateral margin, making another entrance at the right
hypogastric region, penetrating the abdominal cavity. Perforating the
intestines, penetrating the left dome of the diaphragm to enter the left
thoracic cavity.
Dr. Tan also testified that considering the presence of powder burns in the body of the
deceased, he must have been shot at a distance of less than one meter, and that the
cause of his death was shock due to external and internal hemorrhage.
The issues raised in the assignments of error made in appellant's brief call for the
resolution of: firstly, the question of whether appellant should be convicted only of
homicide instead of murder, and whether, upon the evidence of record, he should also be
found guilty of the crime of illegal possession of a firearm.
The Solicitor General agrees with appellant's view that the latter should be convicted
merely of homicide committed with one aggravating circumstance not offset by any
mitigating circumstance, because the qualifying circumstances of evident premeditation
and treachery alleged in the information have not been proved.
We disagree.
The testimony of prosecution witness Pelagia Tapong clearly shows that, for sometime
before the incident, appellant had been waiting for Carlos Tapong to appear, and that as
soon as the latter showed up and arrived in front of the house of Pablo Jazmines,
appellant met him and held him by the neck; that thereafter his cousin Carlito helped him
throw their victim to the ground. This, We believe, is sufficient evidence of premeditation.
We agree, however, that treachery was not proved. On the other hand, the aggravating
circumstance of abuse of superior strength, admitted by appellant's counsel (p. 8,
appellant's brief), must be considered in the imposition of the corresponding penalty.
Upon the question of whether or not appellant should also be convicted of the crime of
illegal possession of a firearm, We agree with both appellant's counsel and the Solicitor
General that the appealed decision should be reversed.
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could
be invoked to support the view that it is incumbent upon a person charged with illegal
possession of a firearm, to prove the issuance to him of a license to possess the firearm,
but We are, of the considered opinion that under the provisions of Section 2, Rule 131 of
the Rules of Court which, provide that in criminal cases the burden of proof as to the
offense charged lies on the prosecution and that a negative fact alleged by the
prosecution must be proven if "it is an essential ingredient of the offense charged", the
burden of proof was with the prosecution in this case to prove that the firearm used by
appellant in committing the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of the
offense of illegal possession of a firearm. The information filed against appellant in
Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that
he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus it
seems clear that it was the prosecution's duty not merely to allege that negative fact but
to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil.
303, the accused was charged with having criminally inscribed himself as a voter
knowing that he had none of the qualifications required to be a voter. It was there held
that the negative fact of lack of qualification to be a voter was an essential element of the
crime charged and should be proved by the prosecution. In another case (People vs.
Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine
because he had diagnosed, treated and prescribed for certain diseases suffered by
certain patients from whom he received monetary compensation, without having
previously obtained the proper certificate of registration from the Board of Medical
Examiners, as provided in Section 770 of the Administrative Code, this Court held that if
the subject of the negative averment like, for instance, the act of voting without the
qualifications provided by law is an essential ingredient of the offense charged, the
prosecution has the burden of proving the same, although in view of the difficulty of
proving a negative allegation, the prosecution, under such circumstance, need only
establish a prima facie case from the best evidence obtainable. In the case before Us,
both appellant and the Solicitor General agree that there was not even a prima facie case
upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief
Justice Moran upholds this view as follows:
The mere fact that the adverse party has the control of the better
means of proof of the fact alleged, should not relieve the party making
the averment of the burden of proving it. This is so, because a party
who alleges a fact must be assumed to have acquired some
knowledge thereof, otherwise he could not have alleged it. Familiar
instance of this is the case of a person prosecuted for doing an act or
carrying on a business, such as, the sale of liquor without a license.
How could the prosecution aver the want of a license if it had acquired
no knowledge of that fact? Accordingly, although proof of the existence
or non-existence of such license can, with more facility, be adduced by
the defendant, it is, nevertheless, incumbent upon the party alleging
the want of the license to prove the allegation. Naturally, as the subject
matter of the averment is one which lies peculiarly within the control or
knowledge of the accused prima facie evidence thereof on the part of
the prosecution shall suffice to cast the onus upon him. (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8.)
WHEREFORE, judgment is hereby rendered as follows:
(1) Appellant is found guilty of murder, with the aggravating circumstance of use of
superior strength, without any mitigating circumstance to offset the same, but for lack of
the required number of votes to impose the corresponding penalty in its maximum
degree, We only affirm the penalty of reclusion perpetua imposed upon him by the trial
court. However, the indemnity appellant must pay the heirs of Carlos Tapong is
increased to P12,000.00.
(2) The appealed decision is reversed and set aside in so far as it finds appellant guilty of
illegal possession of a firearm, with the result that he is hereby acquitted of said charge.
MODIFIED AS ABOVE INDICATED, the appealed decision is affirmed in all other
respects, with costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.
[G.R. Nos. 146284-86. January 20, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. ABDUL MACALABA y
DIGAYON, appellant.
DECISION
DAVIDE, JR., C.J.:
Appellant Abdul Macalaba y Digayon (hereafter ABDUL) was charged before the
Regional Trial Court of San Pedro, Laguna, with violations of the Presidential Decree No.
1866[1]; Article 168 of the Revised Penal Code[2]; and Section 16 of Article III of the
Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, in Criminal Cases
Nos. 1236, 1237 and 1238, respectively. The accusatory portions of the informations in
these cases read as follows:
Criminal Case No. 1236
That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna,
Philippines and within the jurisdiction of this Honorable Court, said accused without the
required permit/license from the proper authorities, did then and there willfully, unlawfully,
and feloniously have in his possession, custody and control one (1) caliber .45 pistol with
Serial No. 909904, and one (1) magazine with five (5) live ammunition thereof.
CONTRARY TO LAW.[3]
Criminal Case No. 1237
That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna,
Philippines and within the jurisdiction of this Honorable Court, said accused did then and
there willfully, unlawfully and feloniously have in his possession, custody and control two
(2) ONE THOUSAND PESOS bill with Serial Numbers BG 021165 and BG 995998,
knowing the same to be forged or otherwise falsified with the manifest intention of using
such falsified or forged instruments.
CONTRARY TO LAW.[4]
Criminal Case No. 1238
That on or about April 12, 1999, in the Municipality of San Pedro, Province of Laguna,
Philippines and within the jurisdiction of this Honorable Court, the said accused without
being authorized by law, did then and there willfully, unlawfully and feloniously have in
his possession, custody and control one (1) self-sealing transparent plastic bag of
methamphetamine hydrochloride shabu weighing 226.67 grams (3 medium sized
transparent plastic bags and 1 big heat-sealed transparent plastic bag).
CONTRARY TO LAW.[5]
The three cases were consolidated and raffled to Branch 31 of said court. Upon his
arraignment, ABDUL entered in each case a plea of not guilty.
At the trial, the prosecution presented as witnesses SPO1 Generoso Pandez, PO3
Ernani Mendez, Police Inspector Anacleta Cultura and Police Inspector Lorna
Tria.ABDUL was the sole witness for the defense.
SPO1 Pandez, a PNP member of the Laguna Criminal Investigation Detection
Group (CIDG), testified that on 12 April 1999, at 5:15 p.m., Major R Win Pagkalinawan
ordered the search of ABDUL, alias Boy Muslim, based on a verified information that the
latter was driving a carnapped Mitsubishi olive green car with Plate No. UPV 511 and
was a drug-pusher in San Pedro, Laguna. Two teams were formed for the search. The
first was headed by Major Pagkalinawan, with SPO4 Aberion and five others as
members; and the second was led by Capt. Percival Rumbaoa, with SPO1 Pandez and
PO3 Mendez as members.[6]
Between 6:30 p.m. and 7:00 p.m., the two groups proceeded to Barangay Nueva,
San Pedro, Laguna, on board a car and a van. They went to ABDULs apartment where
he was reportedly selling shabu, but they learned that ABDUL had already left. While
looking for ABDUL, they saw the suspected carnapped car somewhere at Pacita
Complex I, San Pedro, Laguna, going towards the Poblacion. When it stopped due to the
red traffic light, the CIDG officers alighted from their vehicles. Capt. Rumbaoa positioned
himself at the passenger side of the suspected carnapped car, while Major Pagkalinawan
stood in front of the car. SPO1 Pandez, with PO3 Mendez beside him, went straight to
the driver and knocked at the drivers window. ABDUL, who was driving the car, lowered
the glass window. SPO1 Pandez introduced himself as a member of the Laguna CIDG
and asked ABDUL to turn on the light and show them the cars certificate of registration.[7]
When the light was already on, SPO1 Pandez saw a black Norinco .45 caliber
gun[8] inside an open black clutch/belt bag placed on the right side of the drivers seat
near the gear. He asked ABDUL for the supporting papers of the gun, apart from the cars
certificate of registration, but the latter failed to show them any.[9] When ABDUL opened
the zipper of the clutch/belt bag, the CIDG officers saw inside it four plastic sachets of
what appeared to be shabu. They likewise found a self-sealing plastic bag which
contained the following items: two fake P1,000 bills, a list of names of persons, a
magazine and five ammunitions for a .45 caliber gun. They confiscated the gun, the
shabu, and the fake P1,000 bills and thereafter brought ABDUL to the CIDG office.[10]
PO3 Mendez substantially corroborated the testimony of SPO1 Pandez. [11]
The two P1,000 bills were found to be counterfeit after an examination conducted
by Police Inspector Anacleta Cultura,[12] a document examiner at Camp Vicente
Lim,Calamba, Laguna. The white crystalline substance contained in the four small plastic
bags was subjected to physical and laboratory examination conducted by Police
Inspector Lorna Tria, a Forensic Chemist at the PNP Crime Laboratory, Region IV, Camp
Vicente Lim. Her findings[13] were as follows: (a) the three small plastic sachets weighed
29.46 grams, while the big plastic sachet weighed 197.21 grams, or a total weight of
226.67 grams; (b) representative samples taken from the specimens thereof were
positive for methamphetamine hydrochloride or shabu, a regulated drug; and (c) the
improvised tooter and the rolled aluminum foil with residue found in the self-sealing
plastic bag were also positive of the presence for shabu residue.
As expected, ABDUL had a different story to tell. He testified that on 12 April 1999,
between 6:50 and 7:00 p.m., he was driving a borrowed Mitsubishi Galant Car with Plate
No. UPV 501 somewhere in San Pedro, Laguna. With him was Rose, his live-in partner,
whom he fetched from Angeles City, Pampanga. He had borrowed the car from his friend
Ferdinand Navares, who instructed him to return it in front of the latters store at San
Pedro Public Market.[14]
ABDUL was about to park the car when a man knocked hard on the glass window
on the drivers side of the car and pointed at the former a .45 caliber pistol. Another one
who was armed with an armalite rifle positioned himself in front of the car, while the third
one positioned himself near the window on the passenger side and pointed a gun at his
live-in partner Rose. ABDUL then lowered the cars window. The man near him opened
the door, held him, and told him to alight. When the man asked him whether he was Boy
Muslim, he answered in the negative. The same man opened the back door of the car
and boarded at the back seat. Rose remained seated at the front passenger seat. [15]
The other men likewise boarded the car, which was thereafter driven by one of
them. While inside the car, they saw a .45 caliber pistol at the edge of the drivers
seat. They asked him whether he had a license. He showed his gun license and permit to
carry. After taking his gun, license, and permit to carry, they tried to remove his belt bag
from his waist, but he did not allow them.[16]
Upon reaching the headquarters, ABDUL learned that these people were C.I.S.
agents. There, he was told to surrender the belt bag to the officer who would issue a
receipt for it. He did as he was told, and the money inside his belt bag was counted and it
amounted to P42,000. They then got his money and the cellular phone, which was also
inside the bag, together with some other pieces of paper. They also took another cell
phone from the car. He was never issued a receipt for these items.[17]
Thereafter, a man entered the office with a white plastic bag allegedly taken from
the borrowed car. ABDUL denied ownership over the plastic bag. That same man then
told him that it contained shabu. ABDUL and Rose were detained at the
headquarters. The next morning, Rose was allowed to get out; and in the afternoon, he
was transferred to San Pedro Municipal Jail.[18]
After the trial, the trial court acquitted ABDUL in Criminal Cases Nos. 1236 and
1237 for violations of Presidential Decree No. 1866 and Article 168 of the Revised Penal
Code, respectively, due to insufficiency of evidence. However, it convicted him in
Criminal Case No. 1238 for violation of Section 16, Article III of the Dangerous Drugs Act
of 1972 (Republic Act No. 6425), as amended,[19] and sentenced him to suffer the penalty
of reclusion perpetua and to pay a fine of P500,000, as well as the costs of the suit.
Dissatisfied with the judgment, ABDUL interposed the present appeal, alleging that
the trial court erred in (1) convicting him for violation of Section 16 of Article III of the
Dangerous Drugs Act of 1972, as amended, despite insufficiency of evidence; and (2)
admitting the evidence presented by the prosecution although it was obtained in violation
of his constitutional rights.
In his first assigned error, ABDUL argues that the prosecution failed to prove the
material allegations in the information. The information charges him, among other things,
that without being authorized by law, [he] did then and there willfully and feloniously have
in his possession, custody and control methamphetamine hydrochloride. However, the
prosecution did not present any certification from the concerned government agency, like
the Dangerous Drugs Board, to the effect that he was not authorized to possess shabu,
which is a regulated drug. Thus, his guilt was not proved beyond reasonable doubt.
In his second assigned error, ABDUL asserts that he was not committing a crime
when the CIS agents boarded his car, searched the same and ultimately arrested
him. He was about to park his borrowed car per instruction by the owner when he was
harassed by the operatives at gunpoint. The gun seen was properly documented; thus,
there was no reason for the CIS agents to bring him and his companion to the
headquarters. The shabu allegedly found in the car was brought in by somebody at the
time he was under interrogation. It was taken in violation of his constitutional right against
illegal search and seizure. Being a fruit of a poisonous tree it should not have been
admitted in evidence.
Moreover, the members of the CIDG merely relied on the information received from
an anonymous telephone caller who said that ABDUL was driving a carnapped
vehicle.They had no personal knowledge of the veracity of the
information. Consequently, there was no legal basis for his warrantless arrest.
In the Appellees Brief, the Office of the Solicitor General (OSG) maintains that
ABDUL had the burden of proving that he was authorized to possess shabu, but he failed
to discharge such burden. Therefore, it is presumed that he had no authority;
consequently, he is liable for violation of Section 16, Article III of the Dangerous Drugs
Act of 1972, as amended. The OSG likewise refutes ABDULs argument that there was a
violation of his right against unreasonable searches and seizures.
The general rule is that if a criminal charge is predicated on a negative allegation,
or that a negative averment is an essential element of a crime, the prosecution has the
burden of proving the charge. However, this rule is not without an exception. Thus, we
have held:
Where the negative of an issue does not permit of direct proof, or where the facts are
more immediately within the knowledge of the accused, the onus probandi rests upon
him.Stated otherwise, it is not incumbent upon the prosecution to adduce positive
evidence to support a negative averment the truth of which is fairly indicated by
established circumstances and which, if untrue, could readily be disproved by the
production of documents or other evidence within the defendants knowledge or
control. For example, where a charge is made that a defendant carried on a certain
business without a license (as in the case at bar, where the accused is charged with the
selling of a regulated drug without authority), the fact that he has a license is a matter
which is peculiarly within his knowledge and he must establish that fact or suffer
conviction.[20]
In the instant case, the negative averment that ABDUL had no license or authority
to possess methamphetamine hydrochloride or shabu, a regulated drug, has been fairly
indicated by the following facts proven by the testimonies of the CIDG officers and the
forensic chemist: (a) ABDUL was driving the suspected carnapped vehicle when he was
caught, and he appeared to be healthy and not indisposed as to require the use
of shabu as medicine; (b) the contents of the sachets found in ABDULs open clutch bag
inside the car were prima facie determined by the CIDG officers to be shabu; and (c) the
said contents were conclusively found to be shabu by the forensic chemist. With these
established facts, the burden of evidence was shifted to ABDUL. He could have easily
disproved the damning circumstances by presenting a doctors prescription for said drug
or a copy of his license or authority to possess the regulated drug. Yet, he offered
nothing.
And now on the second issue. The Constitution enshrines in its Bill of Rights the
right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose.[21] To give
full protection to it, the Bill of Rights also ordains the exclusionary principle that any
evidence obtained in violation of said right is inadmissible for any purpose in any
proceeding.[22]
It is obvious from Section 2 of the Bill of Rights that reasonable searches and
seizures are not proscribed. If conducted by virtue of a valid search warrant issued in
compliance with the guidelines prescribed by the Constitution and reiterated in the Rules
of Court, the search and seizure is valid.
The interdiction against warrantless searches and seizures is not absolute. The
recognized exceptions established by jurisprudence are (1) search of moving vehicles;
(2) seizure in plain view; (3) customs search; (4) waiver or consented search; (5) stop
and frisk situation (Terry search); and (6) search incidental to a lawful arrest. The last
includes a valid warrantless search and seizure pursuant to an equally valid warrantless
arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid
warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1)
arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped
prisoners.[23] Another exception is a search made pursuant to routine airport security
procedure, which is authorized under Section 9 of R.A. No. 6235. [24]
The warrantless arrest of, or warrantless search and seizure conducted on, ABDUL
constitute a valid exemption from the warrant requirement. The evidence clearly shows
that on the basis of an intelligence information that a carnapped vehicle was driven by
ABDUL, who was also a suspect of drug pushing, the members of the CIDG of Laguna
went around looking for the carnapped car.[25] They spotted the suspected carnapped
car, which was indeed driven by ABDUL. While ABDUL was fumbling about in his clutch
bag for the registration papers of the car the CIDG agents saw four transparent sachets
of shabu.[26] These sachets of shabu were therefore in plain view of the law enforcers.
Under the plain view doctrine, unlawful objects within the plain view of an officer
who has the right to be in the position to have that view are subject to seizure and may
be presented in evidence. Nonetheless, the seizure of evidence in plain view must
comply with the following requirements: (a) a prior valid intrusion in which the police are
legally present in the pursuit of their official duties; (b) the evidence was inadvertently
discovered by the police who had the right to be where they are; (c) the evidence must
be immediately apparent; and (d) the plain view justified mere seizure of evidence
without further search.[27]
We are convinced beyond any shadow of doubt under the circumstances above
discussed that all the elements of seizure in plain view exist in the case at bar. Thus, the
warrantless search and seizure conducted on ABDUL, as well as his warrantless arrest,
did not transgress his constitutional rights.
ABDULs sole defense of denial is unsubstantiated. We have time and again ruled
that mere denial cannot prevail over the positive testimony of a witness. A mere denial,
just like alibi, is a self-serving negative evidence which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who testify on affirmative
matters. As between a categorical testimony that rings of truth on one hand, and a bare
denial on the other, the former is generally held to prevail. [28]
On the issue of credibility between ABDULs testimony and the declarations of the
CIDG officers, we hold for the latter. As has been repeatedly held, credence shall be
given to the narration of the incident by the prosecution witnesses especially when they
are police officers who are presumed to have performed their duties in a regular manner,
unless there be evidence to the contrary; moreover in the absence of proof of motive to
falsely impute such a serious crime against the accused, the presumption of regularity in
the performance of official duty, as well as the findings of the trial court on the credibility
of witnesses, shall prevail over accuseds self-serving and uncorroborated claim of having
been framed.[29] ABDUL miserably failed to rebut this presumption and to prove any
ulterior motive on the part of the prosecution witnesses.
Unauthorized possession of 200 grams or more of shabu or methylamphetamine
hydrochloride is punishable by reclusion perpetua to death under Section 16 of Article III,
in relation to Section 20 of Article IV, of the Dangerous Drugs Act of 1972 (Republic Act
No. 6425), as amended by P.D. Nos. 44, 1675, 1683, and 1707; Batas Pambansa Blg.
179; and R.A. No. 7659 (now further amended by R.A. No. 9165). These sections
provide as follows:
SEC.16. Possession or Use of Regulated Drugs. -- The penalty of reclusion perpetua to
death and fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who shall possess or use any regulated drug without the
corresponding license or prescription, subject to the provisions of Section 20 hereof.
SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. -- The penalties for offenses under Sections 3, 4, 7, 8 and 9 of
Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the
dangerous drugs involved is in any of the following quantities:
3. 200 grams or more of shabu or methylamphetamine hydrochloride.
There is no doubt that the charge of illegal possession of shabu in Criminal Case
No. 1238 was proved beyond reasonable doubt since ABDUL knowingly carried with him
at the time he was caught 226.67 grams of shabu without legal authority. There being no
modifying circumstance proven, the proper penalty pursuant to Article 63(2) of the
Revised Penal Code is reclusion perpetua. The penalty imposed by the trial court,
including the fine, is, therefore, in order.
WHEREFORE, the appealed decision of the Regional Trial Court of San Pedro,
Laguna, in Criminal Case No. 1238 convicting appellant ABDUL MACALABA y
DIGAYON of the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972
(R.A. No. 6425), as amended, and sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of P500,000 and the costs of the suit, is hereby affirmed in
toto.
Costs de oficio.
SO ORDERED.
[G.R. No. 136845. October 8, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. GUILLERMO FLORENDO
alias IMONG, appellant.
DECISION
BELLOSILLO, J.:
GUILLERMO FLORENDO alias Imong was found guilty of parricide with the
aggravating circumstance of cruelty and sentenced to death. He was ordered to
indemnify the heirs of his wife, Erlinda Ragudo Florendo, the amount of P500,000.00 in
moral and exemplary damages and to pay the costs of suit. His conviction is the subject
of this automatic review.[1]
The records show that on 28 August 1996 at around 2:30 in the afternoon appellant
and his wife Erlinda were inside their house engaged in an animated conversation. Living
with them in the same house in Barangay Bulbulala, La Paz, Abra, was appellants father
Agustin Florendo. After Erlinda was heard to have told Imong to go to sleep, the latter all
of a sudden and without any provocation hacked Erlinda with a bolo in the head and
other parts of her body. The victim could only
exclaim, Patayennak met ni Imongngen (Imong is going to kill me)![2]
Agustin, who was resting at that time, witnessed the incident. Instead of stopping
appellant, Agustin left the house for fear that his son would also attack him. Agustin
sought help from his immediate neighbor, Ernesto Anical, and told
him, Kasano Erning, patayen yen met ni Imong ni baketnan (How is this Erning, Imong is
killing his wife)![3] Ernesto too became frightened and did not go out of his house; instead,
he told Agustin to go to the barangay captain for assistance.
Agustin went to the house of Barangay Captain Godofredo Apuya to report the
incident but the latter was not there. Thus, the wife of the barangay captain, upon being
apprised of what happened, hurriedly went out to look for any
available barangay tanod for assistance and was able to
contact Barangay Tanod Felipe Adora. Agustin, on the other hand, restrained by fear and
shock, stayed at the barangay captains house and when he finally returned at about 4:00
oclock in the afternoon Erlinda was already dead.
 In the meantime, appellant ran to the house of the barangay captain after hacking
his wife. When Barangay Tanod Felipe Adora arrived at the house of
the barangaycaptain, he found appellant there holding a bloodied bolo, his hands and
feet dripping with blood. Felipe advised appellant to yield his bolo but the latter did not
respond. This prompted Felipe to grab his hand and take away his bolo.
When Barangay Captain Godofredo Apuya arrived, he asked appellant why his hand and
feet were covered with blood but the latter did not answer. Appellant was later taken to
the La Paz District Hospital for treatment of his wound and the police authorities of La
Paz thereafter took him into custody pending investigation of the incident.
Dr. Corazon Lalin Brioso, Municipal Health Officer of La Paz, autopsied the cadaver
of the victim and found that she sustained sixteen (16) wounds on various parts of her
body, four (4) of which were considered fatal and resulted in her instantaneous death due
to hypovalemic shock caused by massive hemorrhage.[4]
On 2 September 1996 appellant was committed at the Abra Provincial Jail. During
his confinement, he was observed to be having difficulty in sleeping. He could not eat
during meal times. Most of the time he would stand in his cell without talking to
anyone. Thus on 9 September 1996 he was treated as an outpatient at
the Abra Provincial Hospital (APH). The Provincial Warden then requested a psychiatric
examination of appellant to determine whether he was fit to be arraigned. [5]
On 17 October 1996 appellant was supposed to be arraigned but he appeared
without counsel and remained unresponsive to the questions propounded to him. On the
same date, the trial court referred appellant to the Baguio General Hospital and Medical
Center (BGHMC) for psychiatric evaluation since there was no psychiatrist at the APH.
On 20 November 1996 he went to the BGHMC for consultation and was admitted and
managed as a case of schizophrenic psychosis, paranoid type
(schizophreniformdisorder).[6] He was detained at the hospital and given medication for
his illness. On 7 June 1997, after confinement for six (6) months and eighteen (18) days,
he was discharged and recommitted to the provincial jail as he was found fit to face the
charges against him.[7] When finally arraigned on 12 August 1997 appellant pleaded not
guilty.
At the pre-trial conference, appellant admitted killing his wife but put up the defense
of insanity to claim exemption from criminal liability. At the initial hearing, the prosecution
presented Agustin Florendo, Godofredo Apuya, Ernesto Anical, Felipe Adora and Dr.
Corazon Lalin Brioso as witnesses.
Agustin Florendo attested that his son was not in his proper senses on the day of
the incident and repeated on cross-examination that appellant was crazy and had been
behaving strangely for one (1) year before the incident. [8]
Barangay Captain Godofredo Apuya, on the other hand, stated that he already
knew that appellant was mentally ill because in two (2) instances, three. (3) months prior
to the incident, he saw him singing, dancing and clapping his hands in their
yard.[9] Witness Ernesto Anical stated further that on the day of the incident appellant
was not in his right senses as he saw him sharpening his bolo with his eyes red and
looking very sharp. Yet, he likewise testified that appellant would join the people in
their barangay in their drinking sprees and when already drunk he would beat his wife. [10]
Barangay Tanod Felipe Adora also testified that appellant had been behaving oddly
and was somewhat crazy as he saw him ten (10) days before the incident singing and
talking to himself.[11] Both Godofredo Apuya and Felipe Adora stated that appellant
suspected that his wife was having an affair with Godofredo for he once went to the
house of Godofredo looking for her. But before the trial could prosper, the presiding
judge received a letter from the provincial warden asking for the recommitment of
appellant to the BGHMC because of his unstable mental condition. On 8 June 1998 the
trial court directed the examination and treatment of appellant but not his admission in
the hospital. Nonetheless, appellant was readmitted at the BGHMC on 11 June 1998 and
discharged on 7 August 1998.
On 10 August 1998, upon the assurance of Dr. Elsie I. Caducoy that appellant was
fit to stand trial, appellant was called to testify. He stated that he did not remember
anything that happened on 28 August 1996 but recalled seeing his children days before
the incident; that he was brought to the provincial jail by the police authorities; that
he thumbmarked a form given him in jail; that he came to know about the death of his
wife only when his father told him about it while he was in jail; and, that he did not
know Barangay Captain Apuya when asked about his alleged affair with his wife.[12]
In the assailed Decision dated 19 August 1998 the trial court held that the crime
committed was parricide. While no marriage certificate was presented to prove the
relationship between appellant and the victim, such fact was evident from the testimonies
of the witnesses and appellant himself who averred that the victim was his legitimate
wife; that the aggravating circumstance of cruelty was present because the victim
suffered sixteen (16) wounds; that while it was true that there was evidence that
appellant was observed to be doing things out of the ordinary, like singing in English,
dancing, laughing or talking alone, there was also evidence that he was socializing freely
with the other young men in the barangay; that all these were indicative only of mental
abnormality that did not excuse him from imputability for the offense; that no expert
witness was presented to testify on the insanity of appellant; and, the motive of appellant
in killing his wife was jealousy.
Appellant Florendo now contends that the trial court erred in not acquitting him on
the ground of insanity; for appreciating cruelty instead as an aggravating circumstance in
the commission of the crime, and for upholding the legitimacy of his common-law
relationship with the victim in order to bring the killing within the ambit of Art. 246 of The
Revised Penal Code.
The Court rejects the plea of insanity. Insanity under Art. 12, par. 1, of The Revised
Penal Code exists when there is a complete deprivation of intelligence in committing the
act, i.e., appellant is deprived of reason; he acts without the least discernment because
of complete absence of the power to discern; or, there is a total deprivation of freedom of
the will. The onus probandi rests upon him who invokes insanity as an exempting
circumstance, and he must prove it by clear and convincing evidence. [13]
The alleged insanity of Florendo was not substantiated by sufficient evidence. He
was not completely bereft of reason or discernment and freedom of will when he mortally
hacked his wife. The following circumstances [14] clearly and unmistakably negate a
complete absence of intelligence on his part when he committed the felony: (a) He was
apparently well until about three (3) to four (4) months prior to his admission in the
hospital when he was noted to have blank stares, claiming that he was in deep thought
because he suspected his wife of having an extramarital affair, and at times would
confront his wife about the matter but the latter would deny it; (b) That he became
irritable at home and was easily angered by his childrens slightest mistakes; (c) That due
to his jealousy he claimed that he only wanted to frighten his wife with his bolo in order to
confront her but hacked her instead many times to death; (d) He denied having
hallucinations at that time or being possessed by an evil spirit; (e) Immediately after the
incident he went to the barangay captain, never thought of running away, and apparently
felt guilty about what happened; (f) In jail, he said he started having auditory
hallucinations where he would hear voices commanding him to do something but refused
to elaborate on this; and, (g) He claimed that he frequently thought of his three (3)
children whom he missed so much. These were hardly the acts of a person with a sick
mind.
A perusal of appellants testimony would show that he was aware of his emotions,
bearing and temperament. Except for his testimony in open court that he had no
recollection of what happened on 28 August 1996, he attested that he saw his children a
few days before the incident; that he was brought to the provincial jail by the police
authorities; and, that he thumbmarked a form given him in jail. Since he remembered the
vital circumstances surrounding the ghastly incident, he must have been in full control of
his mental faculties. His recall of the events that transpired before, during and after the
stabbing incident, as well as the nature and contents of his testimony, does not betray an
aberrant mind. An insane person has no full and clear understanding of the nature and
consequences of his act.
The issue of insanity is a question of fact for insanity is a condition of the mind, not
susceptible of the usual means of proof. As no man would know what goes on in the
mind of another, the state or condition of a persons mind can only be measured and
judged by his behavior. Establishing the insanity of an accused requires opinion
testimony which may be given by a witness who is intimately acquainted with appellant,
or who has rational basis to conclude that appellant was insane based on the witness
own perception of appellant, or who is qualified as an expert, such as a psychiatrist. [15]
The first four (4) witnesses of the prosecution were one in alleging that appellant
was crazy and had lost his mind as they noticed him to be behaving oddly, i.e., singing,
dancing and talking to himself. The prosecution witnesses may have testified that
appellant appeared to them to be insane prior to, during and subsequent to the
commission of the crime, but there is a vast difference between an insane person and
one who has worked himself into such a frenzy of anger that he fails to use reason or
good judgment in his action. The fact that a person behaves crazily is not conclusive that
he is insane. The prevalent meaning of the word crazy is not synonymous with the legal
terms insane, non compos mentis, unsound mind, idiot, or lunatic. The popular
conception of the word crazy is being used to describe a person or an act unnatural or
out of the ordinary. A man may behave in a crazy manner but it does not necessarily and
conclusively prove that he is legally so.[16]
The evidence adduced consisting of the testimonies of the prosecution witnesses
that appellant was insane immediately before or on the day the crime was committed
consisted merely of assumptions, and is too speculative, presumptive and conjectural to
be convincing. Their observation that appellant manifested unusual behavior does not
constitute sufficient proof of his insanity because not every aberration of the mind or
mental deficiency constitutes insanity hence exempting.
In the case at bar, appellant was diagnosed to be suffering
from schizophrenia when he was committed to the BGHMC a few months after he killed
his wife. Medical books describe schizophrenia as a chronic mental disorder
characterized by a persons inability to distinguish between fantasy and reality, and is
often accompanied by hallucinations and delusions. Symptomatically, schizophrenic
reactions are recognizable through odd and bizarre behavior apparent in aloofness or
periods of impulsive destructiveness and immature and exaggerated emotionality. During
the initial stage, the common early symptom is aloofness, a withdrawal behind barriers of
loneliness, hopelessness, hatred and fear. Frequently, the patient would seem
preoccupied and dreamy and may appear far away.[17]
Well-settled is the rule that an inquiry into the mental state of an accused should
relate to the period immediately before or at the very moment the felony is
committed.[18]The medical findings of the BGHMC, which diagnosed appellants mental
disorder as schizophrenic psychosis, paranoid type, refer to appellants
treatment after the incident happened. It is bereft of any proof that appellant was
completely deprived of intelligence or discernment at the time or at the very moment he
killed his wife. It is inconclusive as to whether he was insane at the time immediately
preceding or at the very moment of the killing.
In compliance with this Courts Resolution of 15 August 2000, an evaluation of the
psychological and psychiatric condition of appellant was conducted by the Supreme
Court Clinic Services at the National Penitentiary on 22 August 2000. The neuro-
psychiatric evaluation report disclosed that appellant was suffering from psychosis or
insanity, classified as chronic schizophrenia, paranoid type. It divulged further that prior
to the onset of the overt psychotic symptoms, appellant manifested unusual behavior
prior to the commission of the crime of parricide described as fearfulness, irritability,
suspiciousness and jealousy or preoccupation with the fidelity of his wife. In retrospect,
this group of symptoms could have possibly been the prodromal phase heralding the
onset of the psychotic illness.[19] The report revealed that symptoms of appellants mental
illness were conceivably manifested prior to the date of the crime and that substantial
evidence was lacking to conclude that his abnormal behavior was due to the use of drugs
or any prohibited substance.[20]
As can be gleaned from the reports, appellant could only be undergoing
the percursory stages of a disease prior to and at the time of the killing. It is, therefore,
beyond cavil that assuming that he had some form of mental illness by virtue of the
premonitory symptoms of schizophrenia, it did not totally deprive him of intelligence. The
presence of his reasoning faculties, which enabled him to exercise sound judgment and
satisfactorily articulate certain matters such as his jealousy over the supposed infidelity of
his wife, sufficiently discounts any intimation of insanity when he committed the dastardly
crime. While appellant on many occasions before the commission of the crime did things
that would indicate that he was not of sound mind, such acts only tended to show that he
was in an abnormal mental state and not necessarily of unsound mind that would exempt
him from criminal liability. Mere abnormality of mental faculties will not
exclude imputability.[21] The odd or bizarre behavior of appellant prior to the commission
of the crime as described by the prosecution witnesses, if anything else, did not
completely deprive the offender of consciousness of his acts. If the defense of insanity is
sustained, the floodgates to abuse will be opened by the cunning and ingenious
public. Testimony that a person acted in a crazy or deranged manner days before the
commission of the crime does not prove insanity. The grant of absolution on the basis of
insanity should be done with utmost care and circumspection as the State must keep its
guard against murderers seeking to escape punishment through a general plea of
insanity.
We cannot sustain the ruling of the trial court that cruelty aggravated the killing
simply because according to the autopsy report the victims body bore sixteen (16)
wounds all in all, four (4) of which were severe, deep and fatal. The number of wounds is
not a test for determining cruelty; it is whether appellant deliberately and sadistically
augmented the victims suffering. Thus, there must be proof that the victim was made to
agonize before appellant rendered the blow which snuffed out her
life.[22] Although Erlinda received sixteen (16) wounds in all there is no showing that
appellant deliberately and inhumanly increased her suffering. At any rate, even if cruelty
is proved, it cannot be appreciated against appellant to raise the penalty to death as this
was not alleged in the Information. Under Sec. 9, Rule 110, of The Revised Rules of
Criminal Procedure, which took effect on 1 December 2000, aggravating circumstances
must be alleged in the information or complaint, otherwise, they cannot be properly
appreciated. Being favorable to appellant, this procedural rule must be given retroactive
application.
As to the marriage of the victim and appellant, the trial court properly upheld its
legitimacy. In parricide, the best proof of relationship between appellant and the
deceased is the marriage certificate, and in the absence thereof, oral evidence of the fact
of marriage may be considered. The testimony of appellant that he was married to the
deceased is an admission against his penal interest. It is a confirmation of
the sem per praesumitur matrimonio and the presumption that a man and a woman
deporting themselves as husband and wife have entered into a lawful contract of
marriage.[23] Even if the marriage certificate was not presented, that the victim was the
legitimate wife of appellant is evident from the testimonies of the prosecution witnesses.
In open court, appellant himself volunteered the information in his offer of evidence
through counsel and on direct examination that the victim was his legitimate wife.
Appellant was properly convicted of the crime of parricide.[24] Parricide not being a
capital crime per se, as it is not punishable by the mandatory death penalty but by the
flexible penalty of reclusion perpetua to death which are two (2) indivisible penalties, the
application of the lesser or the greater penalty depends on the presence of mitigating and TRANS-ASIA SHIPPING LINES, G.R. No. 151991
aggravating circumstances. There being no aggravating or mitigating circumstance INC.,
appreciated for appellant, the lesser penalty of reclusion perpetua is Petitioner,
imposed.[25]Nonetheless, clinical findings at the time of evaluation of the psychological Present:
and psychiatric condition of appellant show that despite maintenance of anti-psychotic PANGANIBAN, C.J.
medication he remains to be symptomatic. It is imperative that there should be - versus Chairperson,
continuous maintenance of his anti-psychotic medications and regular psychiatric follow- YNARES-SANTIAGO,
up to achieve and sustain remission of psychotic symptoms. AUSTRIA-MARTINEZ,
As the trial court failed to award indemnity in favor of the heirs of the victim, the PRUDENTIAL GUARANTEE and ASSURANCE CALLEJO, SR., and
amount of P50,000.00 should be adjudged as civil indemnity ex delicto, which award is INC., CHICO-NAZARIO, JJ.
mandatory and requires no proof other than the victims death.[26] Respondent.
WHEREFORE, the conviction of accused-appellant GUILLERMO FLORENDO
alias IMONG of parricide under Art. 246 of The Revised Penal Code, as amended by
Sec. 5, of RA 7659, is AFFIRMED with the MODIFICATION that he should suffer the Promulgated:
penalty of reclusion perpetua, instead of death. He is further ordered to pay the heirs of
his wife, the deceased Erlinda Ragudo Florendo, the amount of P50,000.00 as civil June 20, 2006
indemnity for her death, and to pay the costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Corona, J., on leave.

PRUDENTIAL GUARANTEE and ASSURANCE G.R. No. 151890

INC.,
Petitioner,

- versus -

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

TRANS-ASIA SHIPPING LINES, INC.,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - x DECISION

CHICO-NAZARIO, J:

This is a consolidation of two separate Petitions for Review on Certiorari filed by

petitioner Prudential Guarantee and Assurance, Inc. (PRUDENTIAL) in G.R. No. 151890
and Trans-Asia Shipping Lines, Inc. (TRANS-ASIA) in G.R. No. 151991, assailing the
Decision[1] dated 6 November 2001 of the Court of Appeals in CA G.R. CV No. 68278,
which reversed the Judgment[2] dated 6 June 2000 of the Regional Trial Court (RTC),
Branch 13, Cebu City in Civil Case No. CEB-20709.The 29 January 2002 Resolution[3] of
the Court of Appeals, denying PRUDENTIALs Motion for Reconsideration and TRANS-
ASIAs Partial Motion for Reconsideration of the 6 November 2001 Decision, is likewise
sought to be annulled and set aside.

The Facts

The material antecedents as found by the court a quo and adopted by the appellate court
are as follows:
 Plaintiff [TRANS-ASIA] is the owner of the vessel M/V Asia Korea. In
consideration of payment of premiums, defendant [PRUDENTIAL]
insured M/V Asia Korea for loss/damage of the hull and machinery
arising from perils, inter alia, of fire and explosion for the sum of P40
Million, beginning [from] the period [of] July 1, 1993 up to July 1,
1994. This is evidenced by Marine Policy No. MH93/1363 (Exhibits A
to A-11). On October 25, 1993, while the policy was in force, a fire
broke out while [M/V Asia Korea was] undergoing repairs at
the port of Cebu. On October 26, 1993 plaintiff [TRANS-ASIA] filed its
notice of claim for damage sustained by the vessel. This is evidenced
by a letter/formal claim of even date (Exhibit B). Plaintiff [TRANS-ASIA]
reserved its right to subsequently notify defendant [PRUDENTIAL] as
to the full amount of the claim upon final survey and determination by
average adjuster Richard Hogg International (Phil.) of the damage
sustained by reason of fire. An adjusters report on the fire in question
was submitted by Richard Hogg International together with the U-
Marine Surveyor Report (Exhibits 4 to 4-115).
On May 29, 1995[,] plaintiff [TRANS-ASIA] executed a document
denominated Loan and Trust receipt, a portion of which read (sic):
Received from Prudential Guarantee and Assurance,
Inc., the sum of PESOS THREE MILLION ONLY
(P3,000,000.00) as a loan without interest under
Policy No. MH 93/1353 [sic], repayable only in the
event and to the extent that any net recovery is
made by Trans-Asia Shipping Corporation, from any
person or persons, corporation or corporations, or
other parties, on account of loss by any casualty for
which they may be liable occasioned by the 25
October 1993: Fire on Board. (Exhibit 4)
In a letter dated 21 April 1997 defendant [PRUDENTIAL] denied
plaintiffs claim (Exhibit 5). The letter reads:
After a careful review and evaluation of your claim
arising from the above-captioned incident, it has
been ascertained that you are in breach of policy
conditions, among them WARRANTED VESSEL
CLASSED AND CLASS MAINTAINED. Accordingly,
we regret to advise that your claim is not
compensable and hereby DENIED.
This was followed by defendants letter dated 21 July
1997 requesting the return or payment of the
P3,000,000.00 within a period of ten (10) days from
receipt of the letter (Exhibit 6).[4]
Following this development, on 13 August 1997, TRANS-ASIA filed a
Complaint[5] for Sum of Money against PRUDENTIAL with the RTC of Cebu City,
docketed as Civil Case No. CEB-20709, wherein TRANS-ASIA sought the amount
of P8,395,072.26 from PRUDENTIAL, alleging that the same represents the balance of
the indemnity due upon the insurance policy in the total amount
of P11,395,072.26. TRANS-ASIA similarly sought interest at 42% per annum citing
Section 243[6] of Presidential Decreee No. 1460, otherwise known as the Insurance
Code, as amended.
In its Answer,[7] PRUDENTIAL denied the material allegations of the Complaint
and interposed the defense that TRANS-ASIA breached insurance policy conditions, in
particular: WARRANTED VESSEL CLASSED AND CLASS
MAINTAINED. PRUDENTIAL further alleged that it acted as facts and law require and
incurred no liability to TRANS-ASIA; that TRANS-ASIA has no cause of action; and, that
its claim has been effectively waived and/or abandoned, or it is estopped from pursuing
the same. By way of a counterclaim, PRUDENTIAL sought a refund of P3,000,000.00,
which it allegedly advanced to TRANS-ASIA by way of a loan without interest and without
prejudice to the final evaluation of the claim, including the amounts of P500,000.00, for
survey fees and P200,000.00, representing attorneys fees.
The Ruling of the Trial Court
On 6 June 2000, the court a quo rendered Judgment[8] finding for (therein
defendant) PRUDENTIAL. It ruled that a determination of the parties liabilities hinged on
whether TRANS-ASIA violated and breached the policy conditions on WARRANTED
VESSEL CLASSED AND CLASS MAINTAINED. It interpreted the provision to mean that
TRANS-ASIA is required to maintain the vessel at a certain class at all times pertinent
during the life of the policy. According to the court a quo, TRANS-ASIA failed to prove
compliance of the terms of the warranty, the violation thereof entitled PRUDENTIAL, the
insured party, to rescind the contract.[9]
Further, citing Section 107[10] of the Insurance Code, the court a
quo ratiocinated that the concealment made by TRANS-ASIA that the vessel was not
adequately maintained to preserve its class was a material concealment sufficient to
avoid the policy and, thus, entitled the injured party to rescind the contract. The court a
quo found merit in PRUDENTIALs contention that there was nothing in the adjustment of
the particular average submitted by the adjuster that would show that TRANS-ASIA was
not in breach of the policy. Ruling on the denominated loan and trust receipt, the court a
quo said that in substance and in form, the same is a receipt for a loan. It held that if
TRANS-ASIA intended to receive the amount of P3,000,000.00 as advance payment, it
should have so clearly stated as such.
The court a quo did not award PRUDENTIALs claim for P500,000.00,
representing expert survey fees on the ground of lack of sufficient basis in support
thereof. Neither did it award attorneys fees on the rationalization that the instant case
does not fall under the exceptions stated in Article 2208 [11] of the Civil Code.However, the
court a quo granted PRUDENTIALs counterclaim stating that there is factual and legal
basis for TRANS-ASIA to return the amount of P3,000,000.00 by way of loan without
interest.
The decretal portion of the Judgment of the RTC reads:
WHEREFORE, judgment is hereby rendered DISMISSING
the complaint for its failure to prove a cause of action.
On defendants counterclaim, plaintiff is directed to return the
sum of P3,000,000.00 representing the loan extended to it by the
defendant, within a period of ten (10) days from and after this judgment
shall have become final and executory.[12]
 loss suffered by the latter as recommended by the average adjuster
Richard Hogg International (Philippines) in its Report, with double
The Ruling of the Court of Appeals interest starting from the time Richard Hoggs Survey Report was
completed, or on 13 August 1996, until the same is fully paid.

On appeal by TRANS-ASIA, the Court of Appeals, in its assailed Decision of 6 All other claims and counterclaims are hereby DISMISSED.
November 2001, reversed the 6 June 2000 Judgment of the RTC.
All costs against appellee.[14]
On the issue of TRANS-ASIAs alleged breach of warranty of the policy condition
CLASSED AND CLASS MAINTAINED, the Court of Appeals ruled that PRUDENTIAL, as
the party asserting the non-compensability of the loss had the burden of proof to show Not satisfied with the judgment, PRUDENTIAL and TRANS-ASIA filed a Motion for
that TRANS-ASIA breached the warranty, which burden it failed to Reconsideration and Partial Motion for Reconsideration thereon, respectively, which
discharge. PRUDENTIAL cannot rely on the lack of certification to the effect that TRANS- motions were denied by the Court of Appeals in the Resolution dated 29 January 2002.
ASIA was CLASSED AND CLASS MAINTAINED as its sole basis for reaching the
conclusion that the warranty was breached. The Court of Appeals opined that the lack of
a certification does not necessarily mean that the warranty was breached by TRANS-
ASIA. Instead, the Court of Appeals considered PRUDENTIALs admission that at the
time the insurance contract was entered into between the parties, the vessel was The Issues
properly classed by Bureau Veritas, a classification society recognized by the
industry. The Court of Appeals similarly gave weight to the fact that it was the Aggrieved, PRUDENTIAL filed before this Court a Petition for Review, docketed as G.R.
responsibility of Richards Hogg International (Phils.) Inc., the average adjuster hired by No. 151890, relying on the following grounds, viz:
PRUDENTIAL, to secure a copy of such certification to support its conclusion that mere
absence of a certification does not warrant denial of TRANS-ASIAs claim under the I.
insurance policy.
THE AWARD IS GROSSLY UNCONSCIONABLE.
In the same token, the Court of Appeals found the subject warranty allegedly
breached by TRANS-ASIA to be a rider which, while contained in the policy, was inserted
by PRUDENTIAL without the intervention of TRANS-ASIA. As such, it partakes of a II.
nature of a contract dadhesion which should be construed against PRUDENTIAL, the
party which drafted the contract. Likewise, according to the Court of Appeals, THE COURT OF APPEALS ERRED IN HOLDING THAT THERE WAS
PRUDENTIALs renewal of the insurance policy from noon of 1 July 1994 to noon of 1 NO VIOLATION BY TRANS-ASIA OF A MATERIAL WARRANTY,
July 1995, and then again, until noon of 1 July 1996 must be deemed a waiver by NAMELY, WARRANTY CLAUSE NO. 5, OF THE INSURANCE
PRUDENTIAL of any breach of warranty committed by TRANS-ASIA. POLICY.

Further, the Court of Appeals, contrary to the ruling of the court a

quo, interpreted the transaction between PRUDENTIAL and TRANS-ASIA as one of III.
subrogation, instead of a loan. The Court of Appeals concluded that TRANS-ASIA has no
obligation to pay back the amount of P3,000.000.00 to PRUDENTIAL based on its finding THE COURT OF APPEALS ERRED IN HOLDING THAT
that the aforesaid amount was PRUDENTIALs partial payment to TRANS-ASIAs claim PRUDENTIAL, AS INSURER HAD THE BURDEN OF PROVING
under the policy. Finally, the Court of Appeals denied TRANS-ASIAs prayer for attorneys THAT THE ASSURED, TRANS-ASIA, VIOLATED A MATERIAL
fees, but held TRANS-ASIA entitled to double interest on the policy for the duration of the WARRANTY.
delay of payment of the unpaid balance, citing Section 244 [13] of the Insurance Code.

Finding for therein appellant TRANS-ASIA, the Court of Appeals ruled in this IV.
wise:
WHEREFORE, the foregoing consideration, We find for THE COURT OF APPEALS ERRED IN HOLDING THAT THE
Appellant. The instant appeal is ALLOWED and the Judgment WARRANTY CLAUSE EMBODIED IN THE INSURANCE POLICY
appealed from REVERSED. The P3,000,000.00 initially paid by CONTRACT WAS A MERE RIDER.
appellee Prudential Guarantee Assurance Incorporated to appellant
Trans-Asia and covered by a Loan and Trust Receipt dated 29 May
1995 is HELD to be in partial settlement of the loss suffered by V.
appellant and covered by Marine Policy No. MH93/1363 issued by
appellee. Further, appellee is hereby ORDERED to pay appellant the THE COURT OF APPEALS ERRED IN HOLDING THAT THE
additional amount of P8,395,072.26 representing the balance of the ALLEGED RENEWALS OF THE POLICY CONSTITUTED A WAIVER
 ON THE PART OF PRUDENTIAL OF THE BREACH OF THE
WARRANTY BY TRANS-ASIA.
VI.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE LOAN
AND TRUST RECEIPT EXECUTED BY TRANS-ASIA IS AN
ADVANCE ON THE POLICY, THUS CONSTITUTING PARTIAL
PAYMENT THEREOF.
VII.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE
ACCEPTANCE BY PRUDENTIAL OF THE FINDINGS OF RICHARDS
HOGG IS INDICATIVE OF A WAIVER ON THE PART OF
PRUDENTIAL OF ANY VIOLATION BY TRANS-ASIA OF THE
WARRANTY.
VIII.
THE COURT OF APPEALS ERRRED (sic) IN REVERSING THE
TRIAL COURT, IN FINDING THAT PRUDENTIAL UNJUSTIFIABLY
REFUSED TO PAY THE CLAIM AND IN ORDERING PRUDENTIAL
TO PAY TRANS-ASIA P8,395,072.26 PLUS DOUBLE INTEREST
FROM 13 AUGUST 1996, UNTIL [THE] SAME IS FULLY PAID.[15]
Similarly, TRANS-ASIA, disagreeing in the ruling of the Court of Appeals filed a Petition
for Review docketed as G.R. No. 151991, raising the following grounds for the allowance
of the petition, to wit:
I.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
AWARDING ATTORNEYS FEES TO PETITIONER TRANS-ASIA ON
THE GROUND THAT SUCH CAN ONLY BE AWARDED IN THE
CASES ENUMERATED IN ARTICLE 2208 OF THE CIVIL CODE,
AND THERE BEING NO BAD FAITH ON THE PART OF
RESPONDENT PRUDENTIAL IN DENYING HEREIN PETITIONER
TRANS-ASIAS INSURANCE CLAIM.
II.
THE DOUBLE INTEREST REFERRED TO IN THE DECISION
DATED 06 NOVEMBER 2001 SHOULD BE CONSTRUED TO MEAN
DOUBLE INTEREST BASED ON THE LEGAL INTEREST OF 12%,
OR INTEREST AT THE RATE OF 24% PER ANNUM.[16]
In our Resolution of 2 December 2002, we granted TRANS-ASIAs Motion for
Consolidation[17] of G.R. Nos. 151890 and 151991;[18] hence, the instant consolidated
petitions.
In sum, for our main resolution are: (1) the liability, if any, of PRUDENTIAL to TRANS-
ASIA arising from the subject insurance contract; (2) the liability, if any, of TRANS-ASIA
to PRUDENTIAL arising from the transaction between the parties as evidenced by a
document denominated as Loan and Trust Receipt, dated 29 May 1995; and (3) the
amount of interest to be imposed on the liability, if any, of either or both parties.
Ruling of the Court
Prefatorily, it must be emphasized that in a petition for review, only questions of law, and
not questions of fact, may be raised.[19] This rule may be disregarded only when the
findings of fact of the Court of Appeals are contrary to the findings and conclusions of the
trial court, or are not supported by the evidence on record.[20] In the case at bar, we find
an incongruence between the findings of fact of the Court of Appeals and the court a
quo, thus, in our determination of the issues, we are constrained to assess the evidence
adduced by the parties to make appropriate findings of facts as are necessary.
I.
A. PRUDENTIAL failed to establish that TRANS-ASIA violated and breached the policy
condition on WARRANTED VESSEL CLASSED AND CLASS MAINTAINED, as
contained in the subject insurance contract.
In resisting the claim of TRANS-ASIA, PRUDENTIAL posits that TRANS-ASIA violated
an express and material warranty in the subject insurance contract, i.e.,Marine Insurance
Policy No. MH93/1363, specifically Warranty Clause No. 5 thereof, which stipulates that
the insured vessel, M/V ASIA KOREA is required to be CLASSED AND CLASS
MAINTAINED. According to PRUDENTIAL, on 25 October 1993, or at the time of the
occurrence of the fire, M/V ASIA KOREA was in violation of the warranty as it was not
CLASSED AND CLASS MAINTAINED. PRUDENTIAL submits that Warranty Clause No.
5 was a condition precedent to the recovery of TRANS-ASIA under the policy, the
violation of which entitled PRUDENTIAL to rescind the contract under Sec. 74 [21] of the
Insurance Code.
The warranty condition CLASSED AND CLASS MAINTAINED was explained by
PRUDENTIALs Senior Manager of the Marine and Aviation Division, Lucio
Fernandez. The pertinent portions of his testimony on direct examination is reproduced
hereunder, viz:
ATTY. LIM
Q Please tell the court, Mr. Witness, the result of the evaluation of this
claim, what final action was taken?
A It was eventually determined that there was a breach of the policy
condition, and basically there is a breach of policy warranty
condition and on that basis the claim was denied.
Q To refer you (sic) the policy warranty condition, I am showing to you
a policy here marked as Exhibits 1, 1-A series, please point to
 the warranty in the policy which you said was breached or
violated by the plaintiff which constituted your basis for
denying the claim as you testified.
A Warranted Vessel Classed and Class Maintained.
ATTY. LIM
Witness pointing, Your Honor, to that portion in Exhibit 1-A
which is the second page of the policy below the printed
words: Clauses, Endorsements, Special Conditions and
Warranties, below this are several typewritten clauses and the
witness pointed out in particular the clause reading:
Warranted Vessel Classed and Class Maintained.
COURT
Q Will you explain that particular phrase?
A Yes, a warranty is a condition that has to be complied with by the
insured. When we say a class warranty, it must be entered in
the classification society.
COURT
Slowly.
WITNESS
(continued)
A A classification society is an organization which sets certain
standards for a vessel to maintain in order to maintain their
membership in the classification society. So, if they failed to
meet that standard, they are considered not members of that
class, and thus breaching the warranty, that requires them to
maintain membership or to maintain their class on that
classification society. And it is not sufficient that the member
of this classification society at the time of a loss, their
membership must be continuous for the whole length of the
policy such that during the effectivity of the policy, their
classification is suspended, and then thereafter, they get
reinstated, that again still a breach of the warranty that they
maintained their class (sic). Our maintaining team
membership in the classification society thereby maintaining
the standards of the vessel (sic).
ATTY. LIM
Q Can you mention some classification societies that you know?
A Well we have the Bureau Veritas, American Bureau of Shipping,
D&V Local Classification Society, The Philippine Registration
of Ships Society, China Classification, NKK and Company
Classification Society, and many others, we have among
others, there are over 20 worldwide. [22]
At the outset, it must be emphasized that the party which alleges a fact as a
matter of defense has the burden of proving it. PRUDENTIAL, as the party which
asserted the claim that TRANS-ASIA breached the warranty in the policy, has the burden
of evidence to establish the same. Hence, on the part of PRUDENTIAL lies the initiative
to show proof in support of its defense; otherwise, failing to establish the same, it
remains self-serving. Clearly, if no evidence on the alleged breach of TRANS-ASIA of the
subject warranty is shown, a fortiori, TRANS-ASIA would be successful in claiming on the
policy. It follows that PRUDENTIAL bears the burden of evidence to establish the fact of
breach.
In our rule on evidence, TRANS-ASIA, as the plaintiff below, necessarily has the
burden of proof to show proof of loss, and the coverage thereof, in the subject insurance
policy. However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiffs prima facie case, otherwise, a verdict must be returned in favor of
plaintiff.[23] TRANS-ASIA was able to establish proof of loss and the coverage of the
loss, i.e., 25 October 1993: Fire on Board. Thereafter, the burden of evidence shifted to
PRUDENTIAL to counter TRANS-ASIAs case, and to prove its special and affirmative
defense that TRANS-ASIA was in violation of the particular condition on CLASSED AND
CLASS MAINTAINED.
We sustain the findings of the Court of Appeals that PRUDENTIAL was not
successful in discharging the burden of evidence that TRANS-ASIA breached the subject
policy condition on CLASSED AND CLASS MAINTAINED.
Foremost, PRUDENTIAL, through the Senior Manager of its Marine and
Aviation Division, Lucio Fernandez, made a categorical admission that at the time of the
procurement of the insurance contract in July 1993, TRANS-ASIAs vessel, M/V Asia
Korea was properly classed by Bureau Veritas, thus:
Q Kindly examine the records particularly the policy, please tell us if
you know whether M/V Asia Korea was classed at the time
(sic) policy was procured perthe (sic) insurance was procured
that Exhibit 1 on 1st July 1993 (sic).
WITNESS
A I recall that they were classed.
ATTY. LIM
Q With what classification society?
A I believe with Bureau Veritas.[24]
As found by the Court of Appeals and as supported by the records, Bureau
Veritas is a classification society recognized in the marine industry. As it is undisputed
that TRANS-ASIA was properly classed at the time the contract of insurance was entered
into, thus, it becomes incumbent upon PRUDENTIAL to show evidence that the status of
TRANS-ASIA as being properly CLASSED by Bureau Veritas had shifted in violation of
the warranty. Unfortunately, PRUDENTIAL failed to support the allegation.
 We are in accord with the ruling of the Court of Appeals that the lack of a
certification in PRUDENTIALs records to the effect that TRANS-ASIAs M/V Asia Korea
was CLASSED AND CLASS MAINTAINED at the time of the occurrence of the fire
cannot be tantamount to the conclusion that TRANS-ASIA in factbreached the warranty
contained in the policy. With more reason must we sustain the findings of the Court of
Appeals on the ground that as admitted by PRUDENTIAL, it was likewise the
responsibility of the average adjuster, Richards Hogg International (Phils.), Inc., to secure
a copy of such certification, and the alleged breach of TRANS-ASIA cannot be gleaned
from the average adjusters survey report, or adjustment of particular average per M/V
Asia Korea of the 25 October 1993 fire on board.
We are not unmindful of the clear language of Sec. 74 of the Insurance Code
which provides that, the violation of a material warranty, or other material provision of a
policy on the part of either party thereto, entitles the other to rescind. It is generally
accepted that [a] warranty is a statement or promise set forth in the policy, or by
reference incorporated therein, the untruth or non-fulfillment of which in any respect, and
without reference to whether the insurer was in fact prejudiced by such untruth or non-
fulfillment, renders the policy voidable by the insurer. [25] However, it is similarly
indubitable that for the breach of a warranty to avoid a policy, the same must be duly
shown by the party alleging the same. We cannot sustain an allegation that is
unfounded. Consequently, PRUDENTIAL, not having shown that TRANS-ASIA breached
the warranty condition, CLASSED AND CLASS MAINTAINED, it remains that TRANS-
ASIA must be allowed to recover its rightful claims on the policy.
B. Assuming arguendo that TRANS-ASIA violated the policy condition on WARRANTED
VESSEL CLASSED AND CLASS MAINTAINED, PRUDENTIAL made a valid waiver
of the same.
The Court of Appeals, in reversing the Judgment of the RTC which held that
TRANS-ASIA breached the warranty provision on CLASSED AND CLASS
MAINTAINED, underscored that PRUDENTIAL can be deemed to have made a valid
waiver of TRANS-ASIAs breach of warranty as alleged, ratiocinating, thus:
Third, after the loss, Prudential renewed the insurance policy
of Trans-Asia for two (2) consecutive years, from noon of 01 July
1994 to noon of 01 July 1995, and then again until noon of 01 July
1996. This renewal is deemed a waiver of any breach of warranty.[26]
PRUDENTIAL finds fault with the ruling of the appellate court when it ruled that
the renewal policies are deemed a waiver of TRANS-ASIAs alleged breach, averring
herein that the subsequent policies, designated as MH94/1595 and MH95/1788 show
that they were issued only on 1 July 1994 and 3 July 1995, respectively, prior to the time
it made a request to TRANS-ASIA that it be furnished a copy of the certification
specifying that the insured vessel M/V Asia Korea was CLASSED AND CLASS
MAINTAINED. PRUDENTIAL posits that it came to know of the breach by TRANS-ASIA
of the subject warranty clause only on 21 April 1997. On even date, PRUDENTIAL sent
TRANS-ASIA a letter of denial, advising the latter that their claim is not compensable. In
fine, PRUDENTIAL would have this Court believe that the issuance of the renewal
policies cannot be a waiver because they were issued without knowledge of the alleged
breach of warranty committed by TRANS-ASIA.[27]
We are not impressed. We do not find that the Court of Appeals was in error when it held
that PRUDENTIAL, in renewing TRANS-ASIAs insurance policy for two consecutive
years after the loss covered by Policy No. MH93/1363, was considered to have waived
TRANS-ASIAs breach of the subject warranty, if any. Breach of a warranty or of a
condition renders the contract defeasible at the option of the insurer; but if he so elects,
he may waive his privilege and power to rescind by the mere expression of an intention
so to do. In that event his liability under the policy continues as before.[28] There can be
no clearer intention of the waiver of the alleged breach than the renewal of the policy
insurance granted by PRUDENTIAL to TRANS-ASIA in MH94/1595 and MH95/1788,
issued in the years 1994 and 1995, respectively.
To our mind, the argument is made even more credulous by
PRUDENTIALs lack of proof to support its allegation that the renewals of the policies
were taken only after a request was made to TRANS-ASIA to furnish them a copy of the
certificate attesting that M/V Asia Korea was CLASSED AND CLASS
MAINTAINED.Notwithstanding PRUDENTIALs claim that no certification was issued to
that effect, it renewed the policy, thereby, evidencing an intention to waive TRANS-ASIAs
alleged breach. Clearly, by granting the renewal policies twice and successively after the
loss, the intent was to benefit the insured, TRANS-ASIA, as well as to waive compliance
of the warranty.
The foregoing finding renders a determination of whether the subject warranty is a rider,
moot, as raised by the PRUDENTIAL in its assignment of errors. Whether it is a rider will
not effectively alter the result for the reasons that: (1) PRUDENTIAL was not able to
discharge the burden of evidence to show that TRANS-ASIA committed a breach,
thereof; and (2) assuming arguendo the commission of a breach by TRANS-ASIA, the
same was shown to have been waived by PRUDENTIAL.
II.
A. The amount of P3,000,000.00 granted by PRUDENTIAL to TRANS- ASIA via a
transaction between the parties evidenced by a document denominated as Loan
and Trust Receipt, dated 29 May 1995 constituted partial payment on the policy.
It is undisputed that TRANS-ASIA received from PRUDENTIAL the amount
of P3,000,000.00. The same was evidenced by a transaction receipt denominated as a
Loan and Trust Receipt, dated 29 May 1995, reproduced hereunder:
LOAN AND TRUST RECEIPT
Claim File No. MH-93-025 May 29, 1995
P3,000,000.00
Check No. PCIB066755
Received FROM PRUDENTIAL GUARANTEE AND ASSURANCE
INC., the sum of PESOS THREE MILLION ONLY (P3,000,000.00) as
a loan without interest, under Policy No. MH93/1353, repayable only in
the event and to the extent that any net recovery is made by TRANS
ASIA SHIPPING CORP., from any person or persons, corporation or
corporations, or other parties, on account of loss by any casualty for
which they may be liable, occasioned by the 25 October 1993: Fire on
Board.
As security for such repayment, we hereby pledge to PRUDENTIAL
GUARANTEE AND ASSURANCE INC. whatever recovery we may
 make and deliver to it all documents necessary to prove our interest in
said property. We also hereby agree to promptly prosecute suit against
such persons, corporation or corporations through whose negligence
the aforesaid loss was caused or who may otherwise be responsible
therefore, with all due diligence, in our own name, but at the expense
of and under the exclusive direction and control of PRUDENTIAL
GUARANTEE AND ASSURANCE INC.
TRANS-ASIA SHIPPING CORPORATION[29]
PRUDENTIAL largely contends that the Loan and Trust Receipt executed by
the parties evidenced a loan of P3,000,000.00 which it granted to TRANS-ASIA, and not
an advance payment on the policy or a partial payment for the loss. It further submits that
it is a customary practice for insurance companies in this country to extend loans
gratuitously as part of good business dealing with their assured, in order to afford their
assured the chance to continue business without embarrassment while awaiting outcome
of the settlement of their claims.[30] According to PRUDENTIAL, the Trust and Loan
Agreement did not subrogate to it whatever rights and/or actions TRANS-ASIA may have
against third persons, and it cannot by no means be taken that by virtue thereof,
PRUDENTIAL was granted irrevocable power of attorney by TRANS-ASIA, as the sole
power to prosecute lies solely with the latter.
The Court of Appeals held that the real character of the transaction between the
parties as evidenced by the Loan and Trust Receipt is that of an advance payment by
PRUDENTIAL of TRANS-ASIAs claim on the insurance, thus:
The Philippine Insurance Code (PD 1460 as amended) was
derived from the old Insurance Law Act No. 2427 of the Philippine
Legislature during the American Regime.The Insurance Act was lifted
verbatim from the law of California, except Chapter V thereof, which
was taken largely from the insurance law of New York. Therefore,
ruling case law in that jurisdiction is to Us persuasive in interpreting
provisions of our own Insurance Code. In addition, the application of
the adopted statute should correspond in fundamental points with the
application in its country of origin x x x.
xxxx
Likewise, it is settled in that jurisdiction that the (sic) notwithstanding
recitals in the Loan Receipt that the money was intended as a loan
does not detract from its real character as payment of claim, thus:
The receipt of money by the insured
employers from a surety company for losses on
account of forgery of drafts by an employee where
no provision or repayment of the money was made
except upon condition that it be recovered from other
parties and neither interest nor security for the
asserted debts was provided for, the money
constituted the payment of a liability and not a mere
loan, notwithstanding recitals in the written receipt
that the money was intended as a mere loan.
What is clear from the wordings of the so-called Loan
and Trust Receipt Agreement is that appellant is obligated to hand
over to appellee whatever recovery (Trans Asia) may make and
deliver to (Prudential) all documents necessary to prove its
interest in the said property. For all intents and purposes
therefore, the money receipted is payment under the policy, with
Prudential having the right of subrogation to whatever net recovery
Trans-Asia may obtain from third parties resulting from the fire. In
the law on insurance, subrogation is an equitable assignment to
the insurer of all remedies which the insured may have against
third person whose negligence or wrongful act caused the loss
covered by the insurance policy, which is created as the legal
effect of payment by the insurer as an assignee in equity. The loss
in the first instance is that of the insured but after reimbursement
or compensation, it becomes the loss of the insurer. It has been
referred to as the doctrine of substitution and rests on the principle
that substantial justice should be attained regardless of form, that
is, its basis is the doing of complete, essential, and perfect justice
between all the parties without regard to form.[31]
We agree. Notwithstanding its designation, the tenor of the Loan and Trust
Receipt evidences that the real nature of the transaction between the parties was that the
amount of P3,000,000.00 was not intended as a loan whereby TRANS-ASIA is obligated
to pay PRUDENTIAL, but rather, the same was a partial payment or an advance on the
policy of the claims due to TRANS-ASIA.
First, the amount of P3,000,000.00 constitutes an advance payment to TRANS-
ASIA by PRUDENTIAL, subrogating the former to the extent of any net recovery made
by TRANS ASIA SHIPPING CORP., from any person or persons, corporation or
corporations, or other parties, on account of loss by any casualty for which they may be
liable, occasioned by the 25 October 1993: Fire on Board.[32]
Second, we find that per the Loan and Trust Receipt, even as TRANS-ASIA
agreed to promptly prosecute suit against such persons, corporation or corporations
through whose negligence the aforesaid loss was caused or who may otherwise be
responsible therefore, with all due diligence in its name, the prosecution of the claims
against such third persons are to be carried on at the expense of and under the exclusive
direction and control of PRUDENTIAL GUARANTEE AND ASSURANCE INC.[33] The
clear import of the phrase at the expense of and under the exclusive direction and control
as used in the Loan and Trust Receipt grants solely to PRUDENTIAL the power to
prosecute, even as the same is carried in the name of TRANS-ASIA, thereby making
TRANS-ASIA merely an agent of PRUDENTIAL, the principal, in the prosecution of the
suit against parties who may have occasioned the loss.
Third, per the subject Loan and Trust Receipt, the obligation of TRANS-ASIA to
repay PRUDENTIAL is highly speculative and contingent, i.e., only in the event and to
the extent that any net recovery is made by TRANS-ASIA from any person on account of
loss occasioned by the fire of 25 October 1993. The transaction, therefore, was made to
benefit TRANS-ASIA, such that, if no recovery from third parties is made, PRUDENTIAL
cannot be repaid the amount. Verily, we do not think that this is constitutive of a
loan.[34] The liberality in the tenor of the Loan and Trust Receipt in favor of TRANS-ASIA
leads to the conclusion that the amount of P3,000,000.00 was a form of an advance
payment on TRANS-ASIAs claim on MH93/1353.

III.
A. PRUDENTIAL is directed to pay TRANS-ASIA the amount of
P8,395,072.26, representing the balance of the loss suffered by TRANS-
ASIA and covered by Marine Policy No. MH93/1363.
Our foregoing discussion supports the conclusion that TRANS-ASIA is entitled
to the unpaid claims covered by Marine Policy No. MH93/1363, or a total amount
of P8,395,072.26.
B. Likewise, PRUDENTIAL is directed to pay TRANS-ASIA, damages in the
form of attorneys fees equivalent to 10% of P8,395,072.26.
The Court of Appeals denied the grant of attorneys fees. It held that attorneys
fees cannot be awarded absent a showing of bad faith on the part of PRUDENTIAL in
rejecting TRANS-ASIAs claim, notwithstanding that the rejection was
erroneous. According to the Court of Appeals, attorneys fees can be awarded only in the
cases enumerated in Article 2208 of the Civil Code which finds no application in the
instant case.
We disagree. Sec. 244 of the Insurance Code grants damages consisting of
attorneys fees and other expenses incurred by the insured after a finding by the
Insurance Commissioner or the Court, as the case may be, of an unreasonable denial or
withholding of the payment of the claims due. Moreover, the law imposes an interest of
twice the ceiling prescribed by the Monetary Board on the amount of the claim due the
insured from the date following the time prescribed in Section 242[35] or in Section
243,[36] as the case may be, until the claim is fully satisfied. Finally, Section 244
considers the failure to pay the claims within the time prescribed in Sections 242 or 243,
when applicable, as prima facie evidence of unreasonable delay in payment.
To the mind of this Court, Section 244 does not require a showing of bad faith in
order that attorneys fees be granted. As earlier stated, under Section 244, a prima
facie evidence of unreasonable delay in payment of the claim is created by failure of the
insurer to pay the claim within the time fixed in both Sections 242 and 243 of the
Insurance Code. As established in Section 244, by reason of the delay and the
consequent filing of the suit by the insured, the insurers shall be adjudged to pay
damages which shall consist of attorneys fees and other expenses incurred by the
insured.[37]
Section 244 reads:
In case of any litigation for the enforcement of any policy or
contract of insurance, it shall be the duty of the Commissioner or the
Court, as the case may be, to make a finding as to whether the
payment of the claim of the insured has been unreasonably denied or
withheld; and in the affirmative case, the insurance company shall be
adjudged to pay damages which shall consist of attorneys fees and
other expenses incurred by the insured person by reason of such
unreasonable denial or withholding of payment plus interest of twice
the ceiling prescribed by the Monetary Board of the amount of the
claim due the insured, from the date following the time prescribed in
section two hundred forty-two or in section two hundred forty-three, as
the case may be, until the claim is fully satisfied; Provided, That the
failure to pay any such claim within the time prescribed in said sections
shall be considered prima facie evidence of unreasonable delay in
payment.
Sections 243 and 244 of the Insurance Code apply when the court finds an
unreasonable delay or refusal in the payment of the insurance claims.
In the case at bar, the facts as found by the Court of Appeals, and confirmed by
the records show that there was an unreasonable delay by PRUDENTIAL in the payment
of the unpaid balance of P8,395,072.26 to TRANS-ASIA. On 26 October 1993, a day
after the occurrence of the fire in M/V Asia Korea, TRANS-ASIA filed its notice of
claim. On 13 August 1996, the adjuster, Richards Hogg International (Phils.), Inc.,
completed its survey report recommending the amount of P11,395,072.26 as the total
indemnity due to TRANS-ASIA.[38] On 21 April 1997, PRUDENTIAL, in a
letter[39] addressed to TRANS-ASIA denied the latters claim for the amount
of P8,395,072.26 representing the balance of the total indemnity. On 21 July 1997,
PRUDENTIAL sent a second letter[40] to TRANS-ASIA seeking a return of the amount
of P3,000,000.00. On 13 August 1997, TRANS-ASIA was constrained to file a complaint
for sum of money against PRUDENTIAL praying, inter alia, for the sum of P8,395,072.26
representing the balance of the proceeds of the insurance claim.
As can be gleaned from the foregoing, there was an unreasonable delay on the part of
PRUDENTIAL to pay TRANS-ASIA, as in fact, it refuted the latters right to the insurance
claims, from the time proof of loss was shown and the ascertainment of the loss was
made by the insurance adjuster. Evidently, PRUDENTIALs unreasonable delay in
satisfying TRANS-ASIAs unpaid claims compelled the latter to file a suit for collection.
Succinctly, an award equivalent to ten percent (10%) of the unpaid proceeds of the policy
as attorneys fees to TRANS-ASIA is reasonable under the circumstances, or otherwise
stated, ten percent (10%) of P8,395,072.26. In the case of Cathay Insurance, Co., Inc. v.
Court of Appeals,[41] where a finding of an unreasonable delay under Section 244 of the
Insurance Code was made by this Court, we grant an award of attorneys fees equivalent
to ten percent (10%) of the total proceeds. We find no reason to deviate from this judicial
precedent in the case at bar.
C. Further, the aggregate amount (P8,395,072.26 plus 10% thereof as attorneys
fees) shall be imposed double interest in accordance with Section 244 of the
Insurance Code.
Section 244 of the Insurance Code is categorical in imposing an interest twice the ceiling
prescribed by the Monetary Board due the insured, from the date following the time
prescribed in Section 242 or in Section 243, as the case may be, until the claim is fully
satisfied. In the case at bar, we find Section 243 to be applicable as what is involved
herein is a marine insurance, clearly, a policy other than life insurance.
Section 243 is hereunder reproduced:
SEC. 243. The amount of any loss or damage for which an insurer may
be liable, under any policy other than life insurance policy, shall be
paid within thirty days after proof of loss is received by the insurer and
 ascertainment of the loss or damage is made either by agreement
between the insured and the insurer or by arbitration; but if such
ascertainment is not had or made within sixty days after such receipt
by the insurer of the proof of loss, then the loss or damage shall be
paid within ninety days after such receipt. Refusal or failure to pay the
loss or damage within the time prescribed herein will entitle the
assured to collect interest on the proceeds of the policy for the duration
of the delay at the rate of twice the ceiling prescribed by the Monetary
Board, unless such failure or refusal to pay is based on the ground that
the claim is fraudulent.
As specified, the assured is entitled to interest on the proceeds for the duration
of the delay at the rate of twice the ceiling prescribed by the Monetary Board except
when the failure or refusal of the insurer to pay was founded on the ground that the claim
is fraudulent.
D. The term double interest as used in the Decision of the Court of Appeals
must be interpreted to mean 24% per annum.
PRUDENTIAL assails the award of interest, granted by the Court of Appeals, in
favor of TRANS-ASIA in the assailed Decision of 6 November 2001. It is PRUDENTIALs
stance that the award is extortionate and grossly unsconscionable. In support thereto,
PRUDENTIAL makes a reference to TRANS-ASIAs prayer in the Complaint filed with the
court a quo wherein the latter sought, interest double the prevailing rate of interest of
21% per annum now obtaining in the banking business or plus 42% per annum pursuant
to Article 243 of the Insurance Code x x x.[42]
The contention fails to persuade. It is settled that an award of double interest is
lawful and justified under Sections 243 and 244 of the Insurance Code. [43] In Finman
General Assurance Corporation v. Court of Appeals,[44] this Court held that the payment
of 24% interest per annum is authorized by the Insurance Code.[45]There is no gainsaying
that the term double interest as used in Sections 243 and 244 can only be interpreted to
mean twice 12% per annum or 24% per annum interest, thus:
The term ceiling prescribed by the Monetary Board means the legal
rate of interest of twelve per centum per annum (12%) as prescribed
by the Monetary Board in C.B. Circular No. 416, pursuant to P.D. No.
116, amending the Usury Law; so that when Sections 242, 243 and
244 of the Insurance Code provide that the insurer shall be liable to
pay interest twice the ceiling prescribed by the Monetary Board, it
means twice 12% per annum or 24% per annum interest on the
proceeds of the insurance.[46]
E. The payment of double interest should be counted from 13 September
1996.
The Court of Appeals, in imposing double interest for the duration of the delay of
the payment of the unpaid balance due TRANS-ASIA, computed the same from 13
August 1996 until such time when the amount is fully paid. Although not raised by the
parties, we find the computation of the duration of the delay made by the appellate court
to be patently erroneous.
To be sure, Section 243 imposes interest on the proceeds of the policy for
the duration of the delay at the rate of twice the ceiling prescribed by the Monetary
Board. Significantly, Section 243 mandates the payment of any loss or damage for which
an insurer may be liable, under any policy other than life insurance policy, within thirty
days after proof of loss is received by the insurer and ascertainment of the loss or
damage is made either by agreement between the insured and the insurer or by
arbitration. It is clear that under Section 243, the insurer has until the 30 th day after proof
of loss and ascertainment of the loss or damage to pay its liability under the insurance,
and only after such time can the insurer be held to be in delay, thereby necessitating the
imposition of double interest.
In the case at bar, it was not disputed that the survey report on the
ascertainment of the loss was completed by the adjuster, Richard Hoggs International
(Phils.), Inc. on 13 August 1996. PRUDENTIAL had thirty days from 13 August
1996 within which to pay its liability to TRANS-ASIA under the insurance policy, or
until 13 September 1996. Therefore, the double interest can begin to run from 13
September 1996 only.
IV.
A. An interest of 12% per annum is similarly imposed on the TOTAL amount
of liability adjudged in section III herein, computed from the time of finality
of judgment until the full satisfaction thereof in conformity with this Courts
ruling in Eastern Shipping Lines, Inc. v. Court of Appeals.
This Court in Eastern Shipping Lines, Inc. v. Court of Appeals,[47] inscribed the
rule of thumb[48] in the application of interest to be imposed on obligations, regardless of
their source. Eastern emphasized beyond cavil that when the judgment of the court
awarding a sum of money becomes final and executory, the rate of legal interest,
regardless of whether the obligation involves a loan or forbearance of money, shall be
12% per annum from such finality until its satisfaction, this interim period being deemed
to be by then an equivalent to a forbearance[49] of credit.
We find application of the rule in the case at bar proper, thus, a rate of 12% per
annum from the finality of judgment until the full satisfaction thereof must be imposed on
the total amount of liability adjudged to PRUDENTIAL. It is clear that the interim period
from the finality of judgment until the satisfaction of the same is deemed equivalent to a
forbearance of credit, hence, the imposition of the aforesaid interest.
Fallo
WHEREFORE, the Petition in G.R. No. 151890 is DENIED. However, the Petition in G.R.
No. 151991 is GRANTED, thus, we award the grant of attorneys fees and make a
clarification that the term double interest as used in the 6 November 2001 Decision of the
Court of Appeals in CA GR CV No. 68278 should be construed to mean interest at the
rate of 24% per annum, with a further clarification, that the same should be computed
from 13 September 1996 until fully paid. The Decision and Resolution of the Court of
Appeals, in CA-G.R. CV No. 68278, dated 6 November 2001 and 29 January 2002,
respectively, are, thus, MODIFIED in the following manner, to wit:
 1. PRUDENTIAL is DIRECTED to PAY TRANS-ASIA the
amount of P8,395,072.26, representing the balance of the
loss suffered by TRANS-ASIA and covered by Marine Policy
No. MH93/1363;
2. PRUDENTIAL is DIRECTED further to PAY TRANS-ASIA
damages in the form of attorneys fees equivalent to 10% of
the amount of P8,395,072.26;
3. The aggregate amount (P8,395,072.26 plus 10% thereof
as attorneys fees) shall be imposed double interest at the rate
of 24% per annum to be computed from 13 September
1996 until fully paid; and
4. An interest of 12% per annum is similarly imposed on the
TOTAL amount of liability adjudged as abovestated in
paragraphs (1), (2), and (3) herein, computed from the time of
finality of judgment until the full satisfaction thereof.
No costs.
SO ORDERED.
[G.R. No. 142039. May 27, 2004]
MODESTO Moody MABUNGA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
CARPIO MORALES, J.:
The Court of Appeals having, by Decision of June 30, 1999, [1] affirmed that of the
Regional Trial Court of Romblon[2] convicting appellant Modesto Mabunga of robbery
with force upon things under Article 299 of the Revised Penal Code, he comes to this
Court on a petition for review.
In the morning of October 2, 1994, employees of the Bureau of Fire Protection
(BFP) including Davy Villaruel (Villaruel) discovered that the hasp of the door of the BFP
office in Barangay Capaclan, Romblon, Romblon was destroyed, and that the only
typewriter in their office, a Triumph bearing Serial Number 340118640, was missing.
From the testimonies of prosecution witnesses tricycle driver Sixto Bernardo
(Bernardo), Diana Malay (Diana), Villaruel, Sylvia Silverio Comienzo (Sylvia), and SPO2
Eleazar Madali, the prosecution presented its case as follows:
Around 3:00 oclock in the afternoon of October 15, 1994, as Diana was in front of
her store in Capaclan, Romblon, Romblon waiting for a tricycle, she saw appellant, a
dealer of marble slabs, who was carrying a box which bore the marking HOPE and tied
with gray straw string, board a pedicab driven by Bernardo. Having heard from her
husband Rodolfo Malay who works with the BFP that appellant was the prime suspect of
the police for the robbery at the BFP, Diana immediately informed her husband of what
she saw. She was thereupon instructed by her husband to follow appellant. [3]
As Diana noticed that the pedicab was heading for the pier, she proceeded on foot
to the house of Villaruel[4] whom she informed of what she had witnessed.
After the lapse of about 5 minutes,[5] Villaruel, on board his scooter, proceeded to
the pier. By that time appellant had reached the pier, alighted from Bernardos tricycle,
and unloaded the HOPE box.
In the meantime, Diana contacted Chief of Police Major Ernesto Madrona at his
house.[6]
Appellant, not long after alighting from the tricycle at the pier, reboarded the same
tricycle[7] driven by Bernardo, without the box, and headed for his house at
Capaclan.Diana, in fact, saw him on board the tricycle on his way home.
Diana later boarded the tricycle of Bernardo after the latter brought home appellant,
and repaired to the pier. There, by the gate, she saw Villaruel who confirmed to her that
he had verified from Bernardo, whom he earlier saw by the same gate, that the latter
indeed conveyed appellant to the pier, with a HOPE box.
Diana also learned from Villaruel that he really saw the box brought by [appellant].
She thus returned on foot to the house of Major Madrona who instructed SPO2 Eleazar
Madali and PO2 Eustaquio Rogero to surreptitiously watch a box of Hope brand
cigarettes placed under a bench inside the PPA passengers terminal owned by
[appellant] and wait until somebody gets said box and load it aboard the vessel M/V
Peafrancia 8.[8]
On Villaruels entering the terminal[9] he was told by Sylvia, the cashier on duty at
the restaurant therein, that a man, whom she later identified to be appellant through a
photograph shown to her that same day, entrusted the box to her, he telling her that it
contained a damaged electric fan.[10]
Villaruel thereupon kept watch over the box, as SPO2 Madali and PO2 Rogero later
did discreetly, until M/V Peafrancia departed for Batangas at 8:00 p.m., with appellant on
board the same. About an hour later, PPA officers Reynaldo Dianco and Leo Vedito
Fontellera arrived at the terminal and the box was turned over by them to SPO2 Madali
and PO2 Rogero. The box, when opened, contained the lost BFP typewriter.
On February 7, 1995, appellant was charged with robbery before the Regional Trial
Court of Romblon, Romblon under an information reading:
That on or about the 1st day of October, 1994, at around 12:00 midnight, in [B]arangay
Capaclan, municipality of Romblon, province of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with intent [to] gain, did then and
there willfully, unlawfully and feloniously enter the Office of the Bureau of Fire Protection
by forcibly breaking the door hasp of the main door and upon having gained entry
therein, take, steal and carry away one (1) typewriter (Triumph brand) with Serial No.
340118640, valued at P5,894.00, Philippine currency, belonging to and owned by the
government, without its consent, and to the damage and prejudice of the government in
the aforestated amount.[11]
On arraignment on February 21, 1995, appellant, with the assistance of counsel,
pleaded not guilty.[12] Thereafter, trial ensued.
Appellant interposed alibi with respect to the date and place of occurrence of the
alleged robbery. While he admitted bringing to the pier on October 15, 1994 a box, he
claimed, however, that it bore the marking CHAMPION, not HOPE. At the witness stand,
he gave the following tale:
He left Romblon on September 24, 1994 and arrived in Manila the next day. After
the lapse of 12 hours, he went to the Cubao station of the Batangas Laguna Tayabas
Bus (BLTB) Company and boarded a bus bound for Matnog, Sorsogon. He reached
Matnog on the afternoon of September 27, 1994 and stayed there overnight before
proceeding to Allen, Samar which he reached on September 28, 1994. He then boarded
a jeep bound for San Jose, Northern Samar where he stayed for one (1) hour, after
which he proceeded to Calbayog City which he reached on September 29, 1994. He
transferred to another jeep bound for Tacloban and arrived there on September 30,
1994. For a day he stayed in Tacloban to rest, after which he proceeded to Palo, Leyte to
visit his project. He arrived in Palo on October 1, 1994. The next day, he went to
Tacloban City and purchased materials for polishing marble. He returned to Palo and
supervised his marble project for a week. When the project was finished, he returned to
Cebu on October 6, 1994 and the next day boarded the ferry [Backwagon] Bay for
Romblon. He reached Romblon on October 9, 1994.[13]
 In support of his alibi, he presented bus tickets and purchase receipts of
materials, viz:
Exhibit 1 BLTB ticket No. 60850, dated September 26, 1994, (Cubao to
Matnog, Sorsogon)
Exhibit 2 Bus ticket dated September 28, 1994 issued by E. Tabinas
Enterprises to Moody Mabunga (Matnog, Sorsogon, to Allen,
Samar).
Exhibit 3 Invoice No. 18639 issued on October 2, 1993 by Terrazzo
Construction and Marble Supply to Moody Mabunga. [14]
Appellant further claimed that on the afternoon of October 15, 1994, he, along with
his son, boarded the pedicab of Bernardo to which they loaded a box marked
CHAMPION containing marble novelties to be brought to Manila via Viva Penafrancia 8;
on reaching the pier, he laid down the box at the gate of the PPA and stood beside it as
he waited for the ship to dock; and when he later boarded the ship, he placed the box at
the back of his cot.[15]
Finding appellant guilty beyond reasonable doubt of robbery, Branch 81 of the RTC
Romblon sentenced him to suffer an indeterminate penalty of from 4 years and 2 months
of prison correccional, as minimum to 8 years and 1 day of prision mayor, as maximum,
with the accessory penalties of the law, and to pay the costs. [16]
The Court of Appeals, in affirming the decision of the trial court, relied on Section
3(j) Rule 131 of the Revised Rules on Evidence which reads:
SEC. 3. Disputable presumptions. The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
xxx
(j) That a person in possession of a thing taken in the doing of a recent wrongful act is
the taker and the doer of the whole act; otherwise, that things which a person possesses,
or exercises acts of ownership over, are owned by him;
The appellate court having denied his motion for reconsideration,[17] appellant
lodged the present appeal, ascribing to it the following errors:
1. THE COURT OF APPEALS GRAVELY ERRED WHEN IT DISREGARDED
THE UNIMPUGNED ALIBI OF THE ACCUSED, NOTWITHSTANDING
THE ABSENCE OF POSITIVE IDENTIFICATION.
2. THE COURT OF APEALS GRAVELY ERRED WHEN IT ADMITTED IN
EVIDENCE THE TYPEWRITER, WHICH WAS SEARCHED WITHOUT
WARRANT AND IN THE ABSENCE OF THE ACCUSED.
3. THE COURT OF APPEALS GRAVELY ERRED WHEN IT PRESUMED
THE ELEMENT OF INTENT TO GAIN, WHEN THE SUPPOSED ACT OF
THE ACCUSED IN LEAVING THE BOX TO A STRANGER AND NEVER
COMING BACK TO CLAIM IT NEGATED THE NOTION OF ANIMUS
LUCRANDI.[18] (Underscoring supplied)
The appeal is impressed with merit.
While courts have consistently looked upon alibi with suspicion not only because it
is inherently weak and unreliable as a defense, but because it can easily be
fabricated,[19]the basic rule is for the prosecution, upon which lies the onus, to establish
all the elements of a crime to thereby hold him guilty beyond reasonable doubt. Such
burden does not shift as it remains with the prosecution. Tasked with the burden of
persuasion, the prosecution must thus rely on the strength of its evidence and not on the
weakness of the defense.[20]
Admittedly, the evidence for the prosecution is circumstantial. The alleged robbery
was discovered when the employees of the BFP reported for work on October 2, 1994
and noticed that the hasp of the office door was broken and the typewriter was missing.
On the sole basis of the presumption laid down under above-quoted Section 3(j) of
Rule 131 of the Revised Rules on Evidence, the appellate court affirmed the conviction of
appellant.
A presumption is an assumption of fact that the law requires to be made from
another fact or group of facts found or otherwise established in the action. [21] It is an
inference as to the existence of a fact not actually known, arising from its usual
connection with another which is known, or a conjecture based on past experience as to
what course of human affairs ordinarily take.[22]
A presumption has the effect of shifting the burden of proof to the party who would
be disadvantaged by a finding of the presumed fact. The presumption controls decision
on the presumed fact unless there is counterproof that the presumed fact is not so.[23]
In criminal cases, however, presumptions should be taken with caution especially
in light of serious concerns that they might water down the requirement of proof beyond
reasonable doubt. As special considerations must be given to the right of the accused to
be presumed innocent, there should be limits on the use of presumptions against an
accused.
Although possession of stolen property within a limited time from the commission of
the theft or robbery is not in itself a crime, it being possible to possess the same and
remain innocent, such possession may be sufficient for the formation of an inference that
the possessor is the thief unless the evidence satisfactorily proves that the property was
acquired by the accused by legal means.
How the presumption under Section 3(j) Rule 131 is to be understood, United
States v. Catimbang[24] explains:
According to the modern view convictions in cases of this kind are not sustained upon a
presumption of law as to the guilt of the accused. The conviction rests wholly upon an
inference of fact as to the guilt of the accused. If as a matter of probability and reasoning
based on the fact of possession of the stolen goods, taken in connection with other
evidence, it may fairly be concluded beyond reasonable doubt that the accused is guilty
of the theft, judgment or conviction may properly be entered. x x x
The inference of guilt is one of fact and rests upon the common experience of men. But
the experience of men has taught them that an apparently guilty possession may be
explained so as to rebut such an inference and an accused person may therefore put
witness on the stand or go to the witness stand himself to explain his possession,
and any reasonable explanation of his possession, inconsistent with his guilty connection
with the commission of the crime, will rebut the inference as to his guilt which the
prosecution seeks to have drawn from his guilty possession of the stolen goods.
It is in this sense that it is sometimes said that the unexplained possession of recently
stolen goods will sustain a conviction of the crime of larceny. [25] (Emphasis and
underscoring supplied)
Before an inference of guilt arising from possession of recently stolen goods can be
made, however, the following basic facts need to be proven by the prosecution: (1) that
the crime was committed; (2) that the crime was committed recently; (3) that the stolen
property was found in the possession of the defendant; and (4) that the defendant is
unable to explain his possession satisfactorily.[26]
For purposes moreover of conclusively proving possession, the following
considerations have to be emphasized: (1) the possession must be unexplained by any
innocent origin; (2) the possession must be fairly recent; and (3) the possession must
be exclusive.[27]
Contrary to the findings of both the trial and appellate courts, the People failed to
prove beyond reasonable doubt that appellant was caught in exclusive possession of
the recently stolen good.
While possession need not mean actual physical control over the thing for it may
include constructive possession, it is still necessary that for possession to be deemed
constructive the accused knowingly has the power and the intention at a given
time to exercise dominion or control over a thing, either directly or through
another person.[28]
 The case of U.S. v. Simbahan[29] cited by the appellate court has a different factual
setting and is, therefore, inapplicable to the present case. In Simbahan, the accused, for
a consideration of P50.00 pesos, disclosed to the owner of the missing carabao its
precise location. There, this Court held: The word possession as used above can not be
limited to manual touch or personal custody. One who puts or deposits the stolen
property in a place of concealment may be deemed to have such property in his
possession. x x x All the facts and circumstances [including the absence of a satisfactory
explanation of his possession] show conclusively that he had possession of
said caraballa and fully justify his conviction.[30]
The accused in Simbahan exercised exclusive dominion and control over the
thing lost. Appellant in the present case did not.
The HOPE box was not concealed and anyone entering and leaving the PPA
terminal had access to it, it having been placed just below one of the benches, around
three meters from the cashier, Sylvia.
To assume that in a busy place, such as the PPA terminal, the HOPE box that was
opened by the police authorities and found to contain the missing typewriter is the
same box allegedly entrusted by appellant to the cashier is to form an inference which is,
however, doubtful, more than six hours having elapsed from the time the box was
allegedly left at around 3:00 oclock in the afternoon until it was opened by the police
authorities at around 9:00 oclock in the evening after appellant had already boarded the
ship.
A presumption cannot be founded on another presumption. It cannot thus be
concluded that from the time the box was left under the bench, appellant was still in
constructive possession thereof, the exercise of exclusive dominion or control being
absent.
Adding serious doubt to the prosecutions claim is that what was allegedly seen
being carried by appellant and entrusted to the cashier was not the stolen typewriter but
merely a HOPE box.
A review of the transcript of stenographic notes in fact shows that there are flaws in
the prosecutions theory as well as inconsistencies in the prosecution witnesses
testimonies that do not warrant appellants conviction.
Why appellant was considered a suspect by the police, no explanation has been
proferred. The records, however, indicate that appellant had previously been indicted
before the Municipal Trial Court for theft.[31] On that basis alone, it is non sequitor to point
to him as a suspect.
At all events, apart from appellants supposed possession of the HOPE box on
October 15, 1994, no other evidence was adduced by the prosecution linking him to the
robbery. The teaching of Askew v. United States[32] must thus be heeded:
We have heretofore adverted to the possession of the instruments or of the fruits of a
crime as affording ground to presume the guilt of the possessor; but on this subject no
certain rule can be laid down of universal application; the presumption being not
conclusive but disputable, and therefore to be dealt with by the jury alone, as a mere
inference of fact. Its force and value will depend on several considerations. In the first
place, if the fact of possession stands alone, wholly unconnected with any other
circumstances, its value or persuasive power is very slight; for the real criminal may
have artfully placed the article in the possession or upon the premises of an innocent
person, the better to conceal his own guilt. It will be necessary, therefore, for the
prosecutor to add the proof of other circumstances indicative of guilt, in order to
render the naked possession of the thing available towards a conviction.[33] (Emphasis
and underscoring supplied)
That the fact of possession alone, wholly unconnected with any other
circumstances, cannot be relied with certititude to convict one with robbery is echoed
in People v. Geron:[34]
At any rate, the mere possession by the accused of items allegedly stolen, without
more, cannot conduce to a single conclusion that robbery indeed took place or at least
was the primary motive for the killings. In the absence of positive and indubitable
evidence showing unlawful taking by the accused by means of violence against or
intimidation of persons, the prosecution cannot rely with certitude on the fact of
possession alone. The Courts application of the presumption that a person found in
possession of the personal effects belonging to the person robbed and killed is
considered the author of the aggression, the death of the person, as well as the robbery
committed, has been invariably limited to cases where such possession is either
unexplained or that the proferred explanation is rendered implausible in view of
independent evidence inconsistent thereto.[35](Emphasis and underscoring supplied)
The appellate court ruled that since it was sufficiently established that appellant was
in possession of the typewriter two weeks after it was stolen, he had the burden of
proving that he was not the one responsible for the heist. [36] While a presumption
imposes on a party against whom it is directed the burden of going forward with evidence
to rebut such presumption, the burden of producing evidence of guilt does not extend to
the burden of proving the accuseds innocence of the crime as the burden of persuasion
does not shift and remains throughout the trial upon the prosecution.
Compounding doubts on the case for the prosecution is its witnesses differing
versions on how and where the box was opened, a fact necessarily important in
determining whether its content was indeed the stolen typewriter.
On one hand, a member of the PNP, SPO2 Eleazar Madali, testified during the
direct examination by Prosecutor Sy that the box was opened at the police station:
Q And what time did the M/V P[e]afrancia 8 le[ave]?
A About 8:00 oclock in the evening.
Q And what time was that when you entered the PPA terminal to see
the carton?
A May be 3:30 oclock, more or less, the vessel has not arrive[d] yet.
Q - And also because the vessel has left and the carton [w]as not brought out,
what did you do?
A We coordinate[d] with the PPA about the box that was not taken and it was
turned over to us and we brought it to the police station.
Q Who was your companion in bringing the box to the police station?
A SPO1 Rogero, our investigator Victor Miano, Fireman Sim, Dave Villaruel
then we proceeded to the guard of the Romblon Police Station.
Q And what was done with the box in the police station?
A When we arrived in the PNP Police Station we have the box opened before
the guard and the content of the box was a typewriter.[37] (Underscoring
supplied)
On the other hand, the cashier, Sylvia Silverio Comienzo, testified that the police
authorities opened the box inside her small room in the terminal.
DIRECT EXAMINATION BY PROSECUTOR SY:
Q The day in which you have identified him as Modesto Mabunga, [did he]
retrieved (sic) that carton from you that same day or afternoon?
A No, sir.
Q Who got the carton?
A The policemen, sir.
Q And what did the policemen do when they got the carton?
A They opened it, sir.
Q If you could remember, who were those policemen who got and opened the
carton?
A Madrona, Eustaqio and Mike Villaruel.
Q Where did they open that carton?
 A Inside the terminal because I have a small room there.[38] (Underscoring
supplied)
On additional direct examination, Sylvia remained adamant in saying that the box
was opened in her small room inside the terminal.
ADDITIONAL DIRECT EXAMINATION
BY PROSECUTOR SY:
Q When the policemen as you said got this carton and opened it, where did
the policemen precisely get the carton, from what place precisely?
A Taken from under the bench.
COURT:
Q Where this Moody placed it?
A Yes, sir.
PROSECUTOR SY CONTINUING:
Q Were you personally present when the policemen got the carton from under
the bench where Moody placed it?
A Yes, sir.
Q And where did the policemen open the carton?
A In our small room.
Q Where you personally present when the policemen go the carton and
opened it on that room?
A Yes, sir.
Q Were you personally present when the straw that was used in tying the
carton was cut or untie or loosen by the policemen?
A I was there.
COURT:
Q Why were you there present?
A Because I saw to it what was the content of that box and if it was really an
electric fan.[39] (Underscoring supplied)
Without doubt, the trial court is in the best position to assess the credibility of
witnesses firsthand and observe their demeanor, conduct and attitude under grilling
examination. An examination of the records shows, however, that, as indicated by the
trial judges following comments on prosecution witness Villaruels answers to the
questions posed to him during his direct examination, the prosecution evidence leaves
much to be desired.
COURT: Very familiar. This witness is a very typical witness. You are just
waiting for Atty. Sy to finish his question for you to say what you
have been in your mind regardless of the question but you will
just continue what you have already in your mind without thinking
about the question. But remember his question, when the
question is asked it will appear in your mind, it should be the
other way around, do you understand? You forget what is in your
mind, concentrate on the question. You listen to the
question. You are like a tape recorder. You just switch on and
then you continue, no you wait for the question.[40]
Then again, during the cross examination of the same witness, the trial court gave
the following observation on his demeanor:
COURT: The statement of the Court that you are like a fish in outer space is
more applicable to you. You are like a fish in outer space,
meaning, you are a police science graduate, meaning, that your
career is to be a policeman and a police officer, an officer of the
law. You are now in the court of law, you should then feel
comfortable in a court of law like a fish in the water you should be
comfortable in a court of law because that is part of your career
but the way we look at it you are like a lawyer who just graduated,
took the bar and then become an office employee not practicing
law in the courtroom so that when the lawyer comes to Court, he
will not come to Court, he is afraid of the courtroom although he
is a lawyer he is afraid of the courtroom. [41] (Underscoring
supplied)
Finally, logic, common knowledge and human experience teach that it is unlikely
that a robber would represent himself to be the owner of a stuff which he knows contains
stolen property and seek the help of a third person to look after it.
In fine, the life, liberty and property of a citizen may not be taken away on
possibilities, conjectures or even, generally speaking, a bare probability. [42]
At all events, appellants alibi, for which he submitted documentary evidence, has
not been discredited by the prosecution.
WHEREFORE, the decision on review is hereby REVERSED and SET ASIDE and
appellant, Modesto Moody Mabunga, is hereby ACQUITTED of the crime of robbery.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
JOSE U. ONG and G.R. No. 126858
NELLY M. ONG,
Petitioners, Present:
PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ ,
CALLEJO, SR.,
TINGA, and
SANDIGANBAYAN (THIRD CHICO-NAZARIO, JJ.
DIVISION) and OFFICE OF
THE OMBUDSMAN,
Respondents. Promulgated:
September 16, 2005
x --------------------------------------------------------------------x
DECISION
TINGA, J.:
This Petition for Certiorari,[1] dated December 13, 1996 seeks the nullification of
the Resolutions of the Sandiganbayan dated August 18, 1994[2] and October 22,
1996.[3] The first assailed Resolution denied petitioners motion to dismiss the petition for
forfeiture filed against them, while the second questioned Resolution denied their motion
for reconsideration.
The antecedents are as follows:
Congressman Bonifacio H. Gillego executed a Complaint-Affidavit[4] on February 4, 1992,
claiming that petitioner Jose U. Ong, then Commissioner of the Bureau of Internal
Revenue (BIR), has amassed properties worth disproportionately more than his lawful
income. The complaint pertinently states:

In his Statement of Assets and Liabilities as of December 31,
1989 (Annex A), Commissioner Jose U. Ong declared P750,000.00 as
his cash on hand and in banks. Within a short period thereafter, he
was able to acquire prime real estate properties mostly in the
millionaires choice areas in Alabang, Muntinglupa, Metro Manila
costing millions of pesos as follows:
1. A house and lot in Alabang bought on October 9, 1990
for P5,500,000.00, now titled in the name of Jose U. Ong under
Transfer Certificate of Title No. 172168, Registry of Deeds for
Makati (Annexes B & C);
2. Another lot in Alabang bought for P5,700,000.00, now titled in the
name of Jose U. Ong and Nelly M. Ong under Transfer Certificate
of Title No. 173901. Registered on January 25, 1991 in the
Registry of Deeds for Makati (Annex D);
3. Still another lot in Alabang bought for P4,675,000.00 on January
16, 1991, now titled in the name of spouses Jose U. Ong and
Nelly Mercado Ong under Transfer Certificate of Title No. 173760
in the Registry of Deeds for Makati (Annexes E and F);
4. Again, another lot in Alabang bought on December 3, 1990
for P5,055,000.00, now titled in the name of the Children of
Commissioner Ong and his son-in-law under transfer Certificate of
Title No. 173386 in the Registry of Deeds for Makati (Annex G and
H);
5. Again, a lot in Makati bought for P832,000.00 on July 1, 1990,
now titled in the name of the Daughter of Commissioner Ong and
his son-in-law under transfer certificate of title No. 171210 in the
Registry of Deeds of Makati (Annex I & J).
The above documented purchases of Commissioner Ong
alone which are worth millions of pesos are obviously disproportionate
to his income of just a little more than P200,000.00 per annum.[5]
Ong submitted an explanation and analysis of fund sourcing, reporting his net
worth covering the calendar years 1989 to 1991 and showing his sources and uses of
funds, the sources of the increase in his net worth and his net worth as of December 13,
1991.[6]
The Director* of the Fact-Finding and Intelligence Bureau of the Office of the
Ombudsman (Ombudsman) ordered the conduct of a pre-charge investigation on the
matter. A Fact-Finding Report[7] was promptly submitted* with the following
recommendation:
1. Forfeiture Proceedings be instituted against the properties of Jose
U. Ong which he illegitimately acquired in just a span of two (2) years
as Commissioner of the Bureau of Internal Revenue. Such properties
are briefly specified as follows:
a) House and lot in Ayala Alabang bought on October 9,
1990 for P5.5 million under TCT No. 172168 of the
Registry of Deeds for Makati, Metro Manila;
b) Lot in Ayala Alabang bought on January 23, 1991
for P5.5 million under TCT No. 173901;
c) Lot in Ayala Alabang bought on January 16, 1991
for P4,675,000.00 under TCT No. 173760;
d) Lot in Ayala Alabang bought on December 3, 1990
for P5,055,000.00 under TCT No. 173386; and
e) Condominium Unit 804, located at the eight floor of the
Asian Mansion, bought for P744,585.00 under CCT No.
20735 of the Registry of Deeds for Makati, Metro
Manila.[8]
Finding that a preliminary inquiry under Sec. 2 of Republic Act No. 1379 (RA
1379) should be conducted, Ong was directed to submit his counter-affidavit and other
controverting evidence in the Order[9] dated November 18, 1992. For this purpose, Ong
was furnished copies of Gillegos Complaint-Affidavit and the Fact-Finding Report, with
annexes and supporting documents.
Ong filed a Counter-Affidavit[10] dated December 21, 1992, submitting his
Statement of Assets and Liabilities for the years 1988-1990, income tax return for 1988,
bank certificate showing that he obtained a loan from Allied Banking Corporation (Allied
Bank), certificate from SGV & Co. (SGV) showing that he received retirement benefits
from the latter, a document entitled Acknowledgement of Trust showing that he acquired
one of the questioned assets for his brother-in-law, and other documents explaining the
sources of funds with which he acquired the questioned assets.
In view of Ongs arguments, the Ombudsman issued another Order[11] dated
February 11, 1993, the pertinent portions of which state:
Results of the subpoena duces tecum ad testificandum issued
to Allied Banking Corporation, Sycip, Gorres, Velayo & Co., including
the BIR insofar as it pertains to the production of the documents that
respondents claimed in justification of the sources of his
funding/income, proved negative since Allied Bank could not produce
documents that would show availment of the loan, nor could SGV
itemize the documents/vouchers that would, indeed signify the grant
and receipt of the claimed retirement benefits, as well as the BIR
insofar as it pertains on respondents filed income tax returns for the
years 1987, 1988, 1989, 1990 and 1991.
 Such being the case, and in line with respondents defense as
claimed in his counter-affidavit that all his acquisitions were from
legitimate and valid sources based from his (respondents) salary and
other sources of income, and he being the recipient thereof, copies of
which he is entitled as a matter of right and party recipient on the
claimed loan and retirement benefits, respondent Jose U. Ong, is
hereby directed to submit in writing within a period of fifteen (15) days
from receipt of this ORDER, the following, namely:--
a) all documents in his possession relevant to the approval by
the Allied Banking Corporation on the P6.5 million term loan including
documents in availment of the loan such as the execution of
promissory note/s, execution of real/chattel mortgage/s and the fact of
its registration with the Register of Deeds, credit agreements, receipt of
payment on amortization of the loan, if any, and such other pertinent
documents that will show existence and availment of the loan granted;
b) All documents in his possession that he was indeed granted
by SGV and Co. P7.8 million as retirement benefits including such
additional benefits as claimed as evidenced by vouchers, accounting
records, computation of benefits, that would signify fact of receipt of
the claimed retirement benefits;
c) All documents showing the money market placements such
as but not limited to the (a) confirmation sale on the placements and
(b) confirmation of the purchase on the placements;
d) Income tax returns as filed in the Bureau of Internal Revenue
for the years, 1987, 1988, 1989, 1990 and 1991.
Failure of the respondent to comply with this ORDER within
the period hereinabove prescribed shall be deemed a waiver on his
part to submit the required controverting evidence and that he has no
evidence on hand to show proof on the existence of the claimed
defenses as above set forth and that this case shall be considered for
resolution without further notice.[12]
Instead of complying with the Order, Ong filed a Motion,[13] dated February 17,
1993 for its recall, the voluntary inhibition of the handling investigators, and reassignment
of the case. Ong objected to the proceedings taken thus far, claiming that he was not
notified of the subpoenas issued to SGV and Allied Bank requiring them to substantiate
Ongs claims. The Order allegedly violates his right to due process and to be presumed
innocent because it requires him to produce evidence to exculpate himself.
A Resolution[14] dated May 31, 1993 was thereafter issued finding that Ong
miserably failed to substantiate his claim that the sources of financing his said acquisition
came from his other lawful income, taking into account his annual salary of P200,000.00
more or less and his cash standing at the time, even without considering his normal
expenses befitting his stature and position in the Government, as well as his acquisition
of movable properties for the calendar year[s] 1989 to 1991, totaling P930,000.00, and
concluding that the properties acquired by him in a matter of ELEVEN (11) MONTHS
from October, 1990 to September, 1991, during his incumbency as Commissioner of the
Bureau of Internal Revenue, are manifestly and grossly disproportionate to his salary as
a public official and his other lawful income.[15]
The Resolution directed the filing by the Ombudsman, in collaboration with the
Office of the Solicitor General (OSG), of a petition for recovery of ill-gotten/unexplained
wealth under RA 1379, in relation to RAs 3019 and 6770, against Ong and all other
persons concerned.
The Resolution was reviewed by the Office of the Special Prosecutor (Special
Prosecutor) which concurred with the findings and recommendation of the
Ombudsman.[16]
A Petition[17] dated November 15, 1993 for forfeiture of unlawfully acquired
property was accordingly filed before the Sandiganbayan by the Republic, through the
Special Prosecutor and the Deputy Ombudsman for Luzon,[18] against Ong and his wife,
petitioner Nelly Ong, and docketed as Civil Case No. 0160.
The Petition alleged that the total value of the questioned assets
is P21,474,585.00 which is grossly disproportionate to Ongs lawful income from his
public employment and other sources amounting to P1,060,412.50, considering that
Nelly Ong has no visible means of income. This circumstance allegedly gave rise to the
presumption under Sec. 2 of RA 1379 that the questioned properties were unlawfully
acquired.
In its Order[19] dated November 17, 1993, the Sandiganbayan directed the
issuance of a writ of preliminary attachment against the properties of petitioners. The
writ, issued on November 18, 1993, was duly served and implemented as shown in the
Sheriffs Return dated December 1, 1993.[20]
Petitioners Jose and Nelly Ong filed an Answer[21] dated January 27, 1994,
denying that their lawful income is grossly disproportionate to the cost of the real
properties they acquired during the incumbency of Ong as BIR Commissioner. According
to them, the Special Prosecutor and the Ombudsman intentionally failed to consider the
retirement and separation pay Ong received from SGV and other lawful sources of funds
used in the acquisition of the questioned properties.
They presented several affirmative defenses, such as the alleged deprivation of
their right to due process considering that no preliminary investigation was conducted as
regards Nelly Ong, and the nullity of the proceedings before the Ombudsman because
the latter, who acted both as investigator and adjudicator in the determination of the
existence of probable cause for the filing of the case, will also prosecute the same.
Moreover, the Petition also allegedly failed to state a cause of action because RA 1379 is
unconstitutional as it is vague and does not sufficiently define ill-gotten wealth and how it
can be determined in violation of the non-delegation of legislative power provision, and
insofar as it disregards the presumption of innocence by requiring them to show cause
why the properties in question should not be declared property of the state. They also
objected to the fact that they were not notified of the Resolution directing the filing of the
case and were thereby prevented from filing a motion for reconsideration.
A hearing of petitioners affirmative defenses was conducted as in a motion to
dismiss, after which the Sandiganbayan issued the assailed Resolution dated August 18,
1994. The Sandiganbayan ruled that a petition for forfeiture is an action in rem, civil in
character. As such, the participation of Nelly Ong in the inquiry to determine whether the
properties acquired by her husband are manifestly disproportionate to his salary and
other lawful income is not a mandatory requirement. Neither is the conduct of a
preliminary investigation as regards Nelly Ong required. Further, Nelly Ong was only
impleaded in the petition as a formal party.
The court held that the power of the Ombudsman to investigate and prosecute
unexplained wealth cases is founded on RAs 1379, 3019 and 6770. The Sandiganbayan,
moreover, declared that the Petition sufficiently states a cause of action.
Petitioners filed a Motion for Reconsideration[22] dated September 11, 1994,
averring that although a forfeiture proceeding is technically a civil action, it is in
substance a criminal proceeding as forfeiture is deemed a penalty for the violation of RA
1379. Hence, Nelly Ong is entitled to a preliminary investigation. To proceed against her
conjugal share of the questioned assets without giving her the opportunity to present her
side in a preliminary investigation violates her right to due process.
Petitioners reiterated their argument that they were not notified of
the Resolution directing the filing of the petition for forfeiture and were consequently
deprived of their right to file a motion for reconsideration under RA 6770 and pertinent
rules.
The Sandiganbayan issued the second assailed Resolution dated October 22,
1996, directing the Ombudsman to furnish petitioners with a copy of the Resolution to file
the forfeiture case and giving them a period of five (5) days from receipt of
the Resolution within which to file a motion for reconsideration. The Ombudsman was
given a period of sixty (60) days to resolve the motion for reconsideration and to report to
the court the action it has taken thereon.
Instead of awaiting the Ombudsmans compliance with
the Resolution, petitioners filed the instant Petition for Certiorari contending that the
Sandiganbayan gravely abused its discretion in ruling that Nelly Ong is not entitled to
preliminary investigation; failing to annul the proceedings taken before the Ombudsman
despite the alleged bias and prejudice exhibited by the latter and the disqualification of
the Ombudsman from acting both as prosecutor and judge in the determination of
probable cause against petitioners; and failing to declare RA 1379 unconstitutional.
The OSG filed a Comment[23] dated December 10, 1997, averring that the
reason why Nelly Ong was not made a party to the proceedings before the Ombudsman
is because her husband never mentioned any specific property acquired solely and
exclusively by her. What he stated was that all the acquisitions were through his own
efforts. Hence, the Sandiganbayan correctly held that Nelly Ong is a mere formal party.
Furthermore, the presumption of innocence clause of the Constitution refers to
criminal prosecutions and not to forfeiture proceedings which are civil actions in rem. The
Constitution is likewise not violated by RA 1379 because statutes which declare that as a
matter of law a particular inference follows from the proof of a particular fact, one fact
becoming prima facie evidence of another, are not necessarily invalid, the effect of the
presumption being merely to shift the burden of proof upon the adverse party.
Neither is the constitutional authority of the Supreme Court to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts violated by RA 1379 merely by authorizing the OSG to grant
immunity from criminal prosecution to any person who testifies to the unlawful manner in
which a respondent has acquired any property. There is no showing that the OSG or the
Ombudsman is about to grant immunity to anybody under RA 1379. At any rate, the
power to grant immunity in exchange for testimony has allegedly been upheld by the
Court.
The OSG further argued that the Ombudsman did not exhibit any bias and
partiality against Ong. It considered his claim that he received retirement benefits from
SGV, obtained a loan from Allied Bank, and had high yielding money market placements,
although it found that these claims were unsubstantiated based on its investigation.
Moreover, the sending of subpoenas to SGV and Allied Bank was in accordance with the
powers of the Ombudsman under RA 6770.
The OSG likewise alleged that RA 1379 is not vague as it defines legitimately
acquired property and specifies that the acquisition of property out of proportion to the
legitimate income of a public officer is proscribed.
Petitioners filed a Reply to Comment[24] dated April 1, 1998, reiterating their
arguments.
In the Resolution[25] dated April 14, 1999, the Court gave due course to the
petition and required the parties to submit their respective memoranda. Accordingly,
petitioners filed their Memorandum[26] dated June 29, 1999,
while the OSG submitted its Memorandum[27] dated September 27, 1999. The Special
Prosecutor submitted its own Memorandum[28]dated June 20, 1999.
We deny the petition.
Petitioners contend that Nelly Ong was denied due process inasmuch as no
separate notices or subpoena were sent to her during the preliminary investigation
conducted by the Ombudsman. They aver that Nelly Ong is entitled to a preliminary
investigation because a forfeiture proceeding is criminal in nature.
On the other hand, the OSG and the Ombudsman contend that Nelly Ong is not
entitled to preliminary investigation, first, because forfeiture proceedings under RA 1379
are in the nature of civil actions in rem and preliminary investigation is not
required; second,because even assuming that the proceeding is penal in character, the
right to a preliminary investigation is a mere statutory privilege which may be, and was in
this case, withheld by law; and third, because a preliminary investigation would serve no
useful purpose considering that none of the questioned assets are claimed to have been
acquired through Nelly Ongs funds.
In Republic v. Sandiganbayan,[29] we ruled that forfeiture proceedings under RA
1379 are civil in nature and not penal or criminal in character, as they do not terminate in
the imposition of a penalty but merely in the forfeiture of the properties illegally acquired
in favor of the State. Moreover, the procedure outlined in the law is that provided for in a
civil action, viz:
 Sec. 3. The petition.The petition shall contain the following
information:
(a) The name and address of the respondent.
(b) The public office or employment he holds and such other public
officer or employment which he has previously held.
(c) The approximate amount of property he has acquired during his
incumbency in his past and present offices and employments.
(d) A description of said property, or such thereof as has been
identified by the Solicitor General.
(e) The total amount of his government salary and other proper
earnings and incomes from legitimately acquired property, and
(f) Such other information as may enable the court to determine
whether or not the respondent has unlawfully acquired property
during his incumbency.
Sec. 4. Period for the answer.The respondent shall have a period
of fifteen days within which to present his answer.
Sec. 5. Hearing.The court shall set a date for a hearing which may
be open to the public, and during which the respondent shall be given
ample opportunity to explain, to the satisfaction of the court, how he
has acquired the property in question.
Sec. 6. Judgment.If the respondent is unable to show to the
satisfaction of the court that he has lawfully acquired the property in
question, then the court shall declare such property, forfeited in favor
of the State, and by virtue of such judgment the property aforesaid
shall become property of the State: Provided, that no judgment shall be
rendered within six months before any general election or within three
months before any special election. The court may, in addition, refer
this case to the corresponding Executive Department for
administrative or criminal action, or both. [Emphasis supplied.]
Hence, unlike in a criminal proceeding, there is to be no reading of the information,
arraignment, trial and reading of the judgment in the presence of the accused.[30]
In the earlier case of Cabal v. Kapunan,[31] however, we declared that forfeiture
to the State of property of a public official or employee partakes of the nature of a penalty
and proceedings for forfeiture of property, although technically civil in form, are deemed
criminal or penal. We clarified therein that the doctrine laid down in Almeda v.
Perez[32] that forfeiture proceedings are civil in nature applies purely to the procedural
aspect of such proceedings and has no bearing on the substantial rights of the
respondents therein. This ruling was reiterated in Katigbak v. Solicitor General,[33] where
we held that the forfeiture of property provided for in RA 1379 is in the nature of a
penalty.
It is in recognition of the fact that forfeiture partakes the nature of a penalty that
RA 1379 affords the respondent therein the right to a previous inquiry similar to a
preliminary investigation in criminal cases.
Preliminary investigation is an inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof, and should be held for trial. Although the
right to a preliminary investigation is not a fundamental right guaranteed by the
Constitution but a mere statutory privilege, it is nonetheless considered a component part
of due process in criminal justice.[34]
It is argued, however, that even if RA 1379 is considered a criminal proceeding,
Nelly Ong is still not entitled to a preliminary investigation because the law itself
withholds such right from a respondent who is not himself or herself a public officer or
employee, such as Nelly Ong.
RA 1379, entitled An Act Declaring Forfeiture in Favor of the State of Any
Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee
and Providing for the Procedure Therefor, expressly affords a respondent public officer or
employee the right to a previous inquiry similar to preliminary investigation in criminal
cases, but is silent as to whether the same right is enjoyed by a co-respondent who is not
a public officer or employee. Sec. 2 thereof provides:
Sec. 2. Filing of petition.Whenever any public officer or
employee has acquired during his incumbency an amount of property
which is manifestly out of proportion to his salary as such public officer
or employee and to his other lawful income and the income from
legitimately acquired property, said property shall be presumed prima
facie to have been unlawfully acquired. The Solicitor General, upon
complaint by any taxpayer to the city or provincial fiscal who
shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor
General that there is reasonable ground to believe that there has been
committed a violation of this Act and the respondentis probably guilty
thereof, shall file, in the name and on behalf of the Republic of the
Philippines, in the Court of First Instance of the city or province where
said public officer or employee resides or holds office, a petition for a
writ commanding said officer or employee to show cause why the
property aforesaid, or any part thereof, should not be declared property
of the State: Provided, That no such petition shall be filed within one
year before any general election or within three months before any
special election.[Emphasis supplied.]
Is this silence to be construed to mean that the right to a preliminary
investigation is withheld by RA 1379 from a co-respondent, such as Nelly Ong, who is
not herself a public officer or employee?
The answer is no.
It is a significant fact in this case that the questioned assets are invariably
registered under the names of both Jose and Nelly Ong owing to their conjugal
partnership. Thus, even as RA 1379 appears to be directed only against the public officer
or employee who has acquired during his incumbency an amount of property which is
manifestly out of proportion to his salary as such public officer or employee and his other
lawful income and the income from legitimately acquired property, the reality that the
application of the law is such that the conjugal share of Nelly Ong stands to be subjected
to the penalty of forfeiture grants her the right, in line with the due process clause of the
Constitution, to a preliminary investigation.
There is in this case, however, another legal complexion which we have to deal
with. As the OSG noted, there is nothing in the affidavits and pleadings filed by
petitioners which attributes the acquisition of any of the questioned assets to Nelly Ong.
In his Counter-Affidavit, Ong explained that the questioned assets were
purchased using his retirement benefits from SGV amounting to P7.8 Million, various
money market placements, and loan from Allied Bank in the amount of P6.5 Million. He
averred:
6. To fully explain the valid and legal acquisition of the
foregoing listed property pointing out the sources of funding,
circumstances and details of acquisition, the following information is
related:
A. As to the acquisition of the lot covered by TCT
No. 172168, located at Ayala Alabang,
Muntinlupa, Metro Manila, for P5,500,000.00 on
October 9, 1990.
Respondents sources for the P5,500,000.00 were:
a. Interest from his money market placements up to
September 30, 1990 --------------P2,404,643
b. Partial liquidation of money market placements ----------------
---------------------------------P3,095,357
Total -----------------------------------------P5,500,000
A brief historical narration of the money placements made by
Respondent is included in the Report on the Statement of Net Worth of
Com. Jose U. Ong Calendar Year 1989 to 1991, submitted by him to
the Office of the Ombudsman, on or about March 24, 1992.
After the acquisition of the above property, Respondents
money market placements were reduced to P4,365,834 (inclusive of
interest which was not used to finance the above acquisition, and
which remaining balance was rolled over as part of the placements.
B. As to the acquisition of the lot covered by TCT
No. 173386, located at Ayala Alabang,
Muntinlupa, Metro Manila, on December 3,
1990, for P5,055,000.00.
Respondent was offered this lot, and finding the same to be a
good investment, he obtained a loan from the Allied Banking
Corporation for P6,500,000.00. P5,500,000 was used by him in the
purchase of the above property. Respondents credit worthiness is self
evident from his Statement of Assets and Liabilities as of end of
December, 1989 where his net worth is duly reflected to be P10.9
Million.
Xerox copy of the Certification executed by the Corporate
Secretary of Allied Banking Corporation attesting to the grant of a five
(5) year Term Loan of P6.5 Million pesos to Respondent on October
24, 1990, is attached and incorporated as Annex 3.
C. As to the acquisition of the lot covered by TCT
No. 173760, located at Ayala Alabang,
Muntinlupa, Metro Manila, on January 16, 1991,
for P4,675,000.00.
After the acquisition of the property described in the next
preceding sub-paragraph B, Respondent had available investible
funds, money market placements, in the total sum of P5,894,815.00,
the details of which are as follows:
Balance of Money Market placements after acquisition of the property
covered by TCT No. 173386 ------------ 4,365,834.00
Interest earned in the above money market placements up to
December 31, 1990 ------------------------ 83,981.00
Unused portion of the loan of P6.5 Million ---- .P1,445,000.00
Total --------------------------- ..P5,894,815.00
From the foregoing balance of P5,894,815.00, came the
P4,375,000.00 with which Respondent purchased the real property
covered by TCT No. 173760. There remained a balance
of P1,219,815.00.
D. As to the acquisition in Respondents name of
the lot at Ayala Alabang, Muntinlupa, Metro
Manila, covered by TCT No. 173901, on July 1,
1990.
This is an acquisition that had to be made in Respondents
name for the benefit of Hamplish D. Mercado (respondents brother-in-
law) and Florentina S. Mercado, Filipino/Americans, both residents of
Persippany, New Jersey, U.S.A. The funding of this purchase came
from Hamplish D. Mercado who previously left funds with Respondent
for the purpose of acquiring suitable property where the Mercado
spouses could stay when they return to the Philippines upon
retirement. Due to circumstances prevailing at the time when the sale
was executed, it was done in the name of Respondent and his wife.
Respondent immediately thereafter executed an Acknowledgment of
Trust stating the aforementioned fact, duly notarized under date of 5
 February 1991. Respondent has likewise executed and signed a Deed
of Absolute Sale, confirming the truth of all the foregoing. Xerox copy
of the said Acknowledgment of Trust dated February 5, 1991, and the
duly signed Deed of Absolute Sale still undated, are hereto attached as
Annexes 4 and 4-A, respectively.
E. As to the alleged acquisition of the lot at Makati, Metro Manila, covered by
TCT No. 171210 on July 1, 1990 for P832,000.00.
Regarding the aforementioned alleged acquisition, there was
even an acknowledgment of error in the very making of the charge.
Suffice it just to say that the Fact-Finding Report itself stated, Hence,
the accusation that it was Com. Ong who provided funds for such
acquisition is DEVOID of merit.
F. As to the acquisition of Condominium Unit
covered by CCT No. 20785.
Though not included in the Complaint-Affidavit, this was
added by Investigator Soguilon, and who unilaterally and arbitrarily
declared its acquisition by Respondent as coming from illegal means
without affording Respondent his constitutional right to due process.
Had respondent been afforded the opportunity to comment on the
acquisition of subject Condominium Unit, he could have readily
explained the purchase price of P744,585.00. Under No. 6-C of this
statement, it appears that there still remained an unused balance
of P1,219,815.60. Thus, even Respondents remaining investible funds
easily covered the purchase price.
He acknowledges the unintentional omission of the
Condominium Unit in the listing of the same in his Statements of
Assets and Liabilities. However, as explained in the preceding
paragraph the acquisition cost of P744,585.00 is well within his readily
available balance for investment after the acquisition of the property
covered by TCT No. 173760, which is P1,219,815.60.[35]
Even as petitioners denied the allegation in the petition for forfeiture that
Nelly Ong has no visible means of income with which she could have purchased the
questioned assets, there is neither indication nor pretense that Nelly Ong had a hand
in the acquisition of the properties. Jose Ong clearly declared that he purchased the
properties with his retirement funds, money market placements, and proceeds from a
bank loan. Whatever defenses which Nelly Ong could have raised relative to the
sources of funds used in the purchase of the questioned assets are deemed waived
owing to the fact that they are subsumed in the submissions of her husband. Hence,
even if she is entitled to a preliminary investigation, such an inquiry would be an
empty ceremony.
We now consider Ongs allegations of bias and prejudice exhibited by the
Ombudsman during the preliminary investigation.
A perusal of the records reveals that the Graft Investigation Officer duly
considered Ongs explanation as to the sources of funds with which he acquired the
questioned assets. His averment that he received retirement benefits from the SGV was
understandably disregarded because the only supporting document he presented then
was the certification of the controller of SGV to the effect that he received such benefits.
Ong was likewise unable to substantiate his claim that he had money market placements
as he did not present any document evidencing such placements. Further, apart from a
certification from the corporate secretary of Allied Bank to the effect that he obtained a
loan from the said bank, no other document, e.g., loan application, credit investigation
report, loan approval, schedule of loan releases, real estate mortgage document,
promissory notes, cancelled checks, receipts for amortization payments, and statement
of account, was presented to support the claim.
Ong was even given the opportunity to present the documents in his possession
relevant to the approval of the Allied Bank loan, his receipt of retirement benefits from
SGV, and money market placements which would have validated his assertion that all
the questioned acquisitions were from legitimate sources.[36] Up to this point, therefore,
we find that the Ombudsman did not make any unwarranted conclusions or proceed with
arbitrariness in the conduct of the preliminary inquiry.
However, Ong calls the Courts attention to the fact that he was not notified of
the subpoenas duces tecum ad testificandum apparently issued to SGV, Allied Bank and
the BIR and the proceedings taken thereon. This objection was raised in
his Motion[37] dated February 17, 1993, which was, unfortunately, perfunctorily denied.
The Rules of Procedure of the Office of the Ombudsman[38] provides that the
preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112
of the Rules of Court, subject to the following provisions:
(f) If, after the filing of the requisite affidavits and their
supporting evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the
parties or witness is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served
on the witness concerned who shall be required to answer the same in
writing and under oath.
Ong, therefore, should have been notified of the subpoenas duces tecum ad
testificandum issued to SGV, Allied Bank and the BIR. Although there is no indication on
record that clarificatory hearings were conducted pursuant to the subpoenas, Ong is
entitled to be notified of the proceedings and to be present thereat. The fact that he was
not so notified is a denial of fundamental fairness which taints the preliminary
investigation.
So, too, did the fact that Ong was not served a copy of the Resolution directing
the filing of a petition for forfeiture deprive him of his statutory right to be furnished with a
copy of the Resolution to file a petition for forfeiture and to file a motion for
reconsideration therefrom with the Ombudsman within five (5) days from receipt of
such Resolution pursuant to Sec. 27 of RA 6770. The law provides:
Sec. 27. Effectivity and Finality of Decisions.(1) All
provisionary orders of the Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order, directive or
decision of the Office of the Ombudsman must be filed within five (5)
days after receipt of written notice . . . .
For these reasons, we find that the Sandiganbayan, in its second
assailed Resolution, correctly ordered the Ombudsman to immediately furnish petitioners
a copy of the Resolution to file the petition for forfeiture, and gave petitioners a period of
five (5) days from receipt of such Resolution within which to file a motion for
reconsideration. Although the second Sandiganbayan Resolution was only intended to
remedy the Ombudsmans failure to give petitioners a copy of the Resolution to file the
petition for forfeiture, it would also have served to cure the Ombudsmans failure to notify
petitioners of the issuance of subpoenas duces tecum ad testificandum to SGV, Allied
Bank and the BIR.
Instead of awaiting the Ombudsmans compliance with the Resolution and filing
their motion for reconsideration therefrom, however, petitioners opted to go directly to
this Court. With this maneuver, petitioners effectively deprived themselves of an avenue
of redress with the Sandiganbayan. They are deemed to have waived their right to avail
of the remedy afforded by the second Resolution.
The next question is whether we should direct the Ombudsman to rectify the
errors committed during the preliminary investigation, i.e., the failure to give Ong notice
of the subpoenas issued to SGV, Allied Bank and the BIR and notice of
the Resolution directing the filing of the petition for forfeiture.
To so order the Ombudsman at this point would no longer serve any useful
purpose and would only further delay the proceedings in this case. Verily, petitioners
have been allowed to fully plead their arguments before this Court. After all has been
said, this case should now be allowed to proceed in its course.
Nonetheless, we find this an opportune time to admonish the Ombudsman to be
more circumspect in its conduct of preliminary investigation to the end that participants
therein are accorded the full measure of their rights under the Constitution and our laws.
The other issues raised by petitioners concern the alleged disqualification of the
Ombudsman to file a petition for forfeiture considering that it also conducted the
preliminary investigation to determine probable cause. According to petitioners, the
duality of the functions of the Ombudsman, as investigator and prosecutor, impairs its
ability to act as a fair and impartial magistrate in the determination of probable cause.
Petitioners are the first to agree that the Ombudsman is vested with jurisdiction
to investigate and prosecute any act or omission of a public officer or employee when
such act or omission appears to be illegal, unjust, improper or inefficient. They recognize
that the Ombudsman has primary jurisdiction over cases, such as the present one,
cognizable by the Sandiganbayan.
The problem with petitioners contention is their assumption that the
Ombudsman, a constitutionally-created body, will not perform its functions faithfully. The
duality of roles which the Ombudsman exercises does not necessarily warrant a
conclusion that it will be given to making a finding of probable cause in every case.
At any rate, [I]n the debates on this matter in the Constitutional Commission, it
was stressed by the sponsors of the Office of the Ombudsman that, whereas the original
Tanodbayan was supposed to be limited to the function of prosecution of cases against
public functionaries, generally for graft and corruption, the former would be considered
the champion of the citizen, to entertain complaints addressed to him and to take all
necessary action thereon.[39] This should leave no doubt as regards the constitutionality
and propriety of the functions exercised by the Ombudsman in this case.
Verily, the Court in Republic v. Sandiganbayan,[40] reviewed the powers of the
Ombudsman and held:
At present, the powers of the Ombudsman, as defined by
Republic Act No. 6770 corollary to Section 13, Article XI of the 1987
Constitution, include, inter alia, the authority to: (1) investigate and
prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may
take over, at any stage, from any investigatory agency of Government,
the investigation of such cases; and (2) investigate and intiate the
proper action for the recovery of ill-gotten wealth and/or unexplained
wealth amassed after February 25, 1986 and the prosecution of the
parties involved there.[41]
In the same case, we declared that the Ombudsman has the correlative powers
to investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth which were amassed after February 25, 1986. There is therefore no
merit in petitioners contention that the absence of participation of the OSG taints the
petition for forfeiture with nullity.
Finally, the attacks against the constitutionality of RA 1379 because it is vague,
violates the presumption of innocence and the right against self incrimination, and
breaches the authority and prerogative of the Supreme Court to promulgate rules
concerning the protection and enforcement of constitutional rights, are unmeritorious.
The law is not vague as it defines with sufficient particularity unlawfully acquired
property of a public officer or employee as that which is manifestly out of proportion to his
salary as such public officer or employee and to his other lawful income and the income
from legitimately acquired property. It also provides a definition of what is legitimately
acquired property. Based on these parameters, the public is given fair notice of what acts
are proscribed. The law, therefore, does not offend the basic concept of fairness and the
due process clause of the Constitution.
Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379
which states that property acquired by a public officer or employee during his
incumbency in an amount which is manifestly out of proportion to his salary as such
public officer or employee and to his other lawful income and the income from
legitimately acquired property shall be presumed prima facie to have been unlawfully
acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption of
innocence, it is merely required of the State to establish a prima facie case, after which
the burden of proof shifts to the accused.[42] In People v. Alicante,[43] the Court held:
No rule has been better established in criminal law than that
every man is presumed to be innocent until his guilt is proved beyond a
reasonable doubt. In a criminal prosecution, therefore, the burden is
upon the State to prove every fact and circumstance constituting the
crime charged, for the purpose of showing the guilt of the accused.
While that is the rule, many of the States have established a
different rule and have provided that certain facts only shall
constitute prima facie evidence, and that then the burden is put upon
the defendant to show or to explain that such facts or acts are not
criminal.
It has been frequently decided, in case of statutory crimes,
that no constitutional provision is violated by a statute providing that
proof by the State of some material fact or facts shall constitute prima
facie evidence of guilt, and that then the burden is shifted to the
defendant for the purpose of showing that such act or acts are
innocent and are committed without unlawful intention.
. . . The State having the right to declare what acts are
criminal, within certain well defined limitations, has a right to specify
what act or acts shall constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt, and then to put upon the
defendant the burden of showing that such act or acts are innocent
and are not committed with any criminal intent or intention. [44]
The constitutional assurance of the right against self incrimination likewise
cannot be invoked by petitioners. The right is a prohibition against the use of physical or
moral compulsion to extort communications from the accused. It is simply a prohibition
against legal process to extract from the accuseds own lips, against his will, admission of
his guilt.[45] In this case, petitioners are not compelled to present themselves as
witnesses in rebutting the presumption established by law. They may present documents
evidencing the purported bank loans, money market placements and other fund sources
in their defense.
As regards the alleged infringement of the Courts authority to promulgate rules
concerning the protection and enforcement of constitutional rights, suffice it to state that
there is no showing that the Ombudsman or the OSG is about to grant immunity to
anyone under RA 1379. The question, therefore, is not ripe for adjudication.
WHEREFORE, the petition is hereby DISMISSED. Costs against petitioners.
SO ORDERED.
[G.R. NO. 148320 : June 15, 2006]
PILIPINAS BANK, Petitioner, v. GLEE CHEMICAL LABORATORIES,
INC., Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
This resolves the Petition for Review on Certiorari seeking the reversal of the
Decision1 of the Court of Appeals (CA) promulgated on May 22, 2001, which affirmed the
Decision of the Regional Trial Court (RTC) of Makati City, Branch 145.
The antecedent facts are as follows.
Glee Chemical Laboratories, Inc. (respondent) alleged that it applied for a loan with
Pilipinas Bank (petitioner) in the amount of P800,000.00, payment of which would be
secured, pursuant to a board resolution dated March 5, 1982, by a mortgage of its real
property located in San Juan, Metro Manila and covered by Transfer Certificate of Title
No. 20610. The Real Estate Mortgage dated March 5, 1982 (Exhibit "A") 2 specifically
stated in Paragraph 1 thereof that "[t]he MORTGAGOR (herein respondent) shall not
apply the amount obtained from the loans of this date but for the following purpose, viz:
Additional working capital for the purchase of fertilizers."
Respondent claims, however, that petitioner never delivered to it the loan proceeds and
instead applied the amount to a debt owed by a certain Rustica Tan from petitioner.
Petitioner insists that payment of Rustica Tan's debt was secured by the real estate
mortgage executed by respondent pursuant to a third-party liability inserted therein.
Since a balance of Rustica Tan's debt in the amount of P3,586,772.98 still remained
unpaid, petitioner, through its agent Business Assistance Group, Inc., served on
respondent a notice of foreclosure and auction sale of respondent's mortgaged lot.
Respondent then filed with the RTC a complaint for annulment of contract and damages
with preliminary injunction against herein petitioner.
However, respondent also filed a Supplemental Complaint because petitioner was also
attempting to foreclose a chattel mortgage over certain chattels owned and possessed by
respondent. Apparently, sometime in April of 1982, Rustica Tan executed a document
described as an amendment of real estate mortgage with chattel mortgage, 3 as security
for an additional loan of P1,200,000.00, thereby mortgaging the aforementioned chattels
of respondent. The document did not bear the consent or conformity of respondent to the
mortgage as Rustica Tan stated that she owned said chattels.
As prayed for in respondent's original and supplemental complaints, the RTC issued
writs of preliminary injunction, enjoining the sale at public auction of the lot as well as the
chattels in question.
After trial, the RTC rendered judgment in favor of respondent. The dispositive portion of
the Decision4 dated April 17, 1989 reads as follows:
WHEREFORE, judgment is hereby rendered declaring the deed of real estate mortgage
marked Exhibits A and 2, and the amendment of real estate mortgage with chattel
mortgage marked as Annex "C" of the Supplemental Complaint, null and void ab initio,
and permanently enjoining defendants from proceeding with the foreclosure and sale at
public auction of the real property covered by Transfer Certificate of Title No. 20610 of
the Registry of Deed of Rizal and of the chattels described in Exhibit C; and ordering
defendant Pilipinas Bank to pay plaintiff the sum of FIVE HUNDRED THOUSAND
PESOS (P500,000.00), Philippine Currency, as attorney's fees; ONE HUNDRED
THOUSAND PESOS (P100,000.00), Philippine Currency, as moral damages; ONE
HUNDRED THOUSAND PESOS (P100,000.00), Philippine Currency, as moral
damages, ONE HUNDRED THOUSAND PESOS (P100,000.00), Philippine Currency, as
exemplary damages; and to pay the costs. The counterclaims of defendants are hereby
ordered dismissed for lack of merit.
SO ORDERED.
Petitioner then elevated the case to the CA. On May 22, 2001, the CA promulgated the
assailed Decision affirming in toto the RTC decision. The CA upheld the factual finding of
the RTC that Cheng Yong, respondent's President, was more credible and, thus, gave
more credence to his statement that the name Rustica Tan typewritten in the blank space
in paragraph 16 of the Deed of Real Estate Mortgage and the typewritten "Third-Party
Liability" were not yet appearing on said document when he affixed his signature thereto.
The CA concluded thus:
The main purpose of the loan secured by plaintiff-appellee (herein respondent) was for
its own benefit. The unconsented insertion of the name of a third party effectively
changed the nature of the instrument. Hence, there was no consent, so to speak, on the
part of the plaintiff-appellee when the nature of the contract was altered without its
knowledge and approval.5
Aggrieved by said decision, petitioner filed the present Petition for Review
on Certiorarialleging that the findings and conclusions of the CA, affirming those of the
trial court, are not in accord with law and jurisprudence and "grounded on mere
speculations, surmises and conjectures as well as inferences that are manifestly
mistaken, absurb [sic], impossible or based on misapprehension of facts and/or findings
of fact that are premised on absence of evidence and belied by evidence on record." 6
Petitioner first argues that the stipulation pour autri should have been given effect as the
benefits thereof had already been accepted by the third person, Rustica Tan, when she
received the proceeds of the loan applied for by respondent. However, at the outset, it
should be noted that an acceptance, if any, would take effect only if respondent, through
its President, Cheng Yong, indeed intended to insert or include a stipulation pour autri in
the Real Estate Mortgage. As held in Bank of the Philippine Islands v. V. Conception e
Hijos, Inc., "to constitute a valid stipulation pour autri, it must be the purpose and intent of
the stipulating parties to benefit the third person and it is not sufficient that the third
person may be incidentally benefited by the stipulation."7
In this case, the bone of contention is whether at the time Cheng Yong affixed his
signature on the Real Estate Mortgage, the blanks on the document had already been
filled up with the stipulation in favor of Rustica Tan. Both Cheng Yong and respondent
manager Melecio Hernandez, who signed the document as a witness, testified that such
stipulation was not yet typewritten into the blank spaces of the pre-printed, pro-forma
document with the heading "Real Estate Mortgage," 8 at the time they signed it;9 while
Elpidio Guillermo, Senior Loans Clerk of petitioner, testified that he typed in said
stipulation on the document on March 4, 1982, a day before he presented the same to
Cheng Yong for the latter's signature.10 Petitioner argues mainly that the CA erred in
giving more credence to the testimonies of Cheng Yong and Melecio Hernandez.
Petitioner insists that the testimony of its witness, Elpidio Guillermo, is more worthy of
belief.
The trial court, affirmed by the CA, found Cheng Yong to be more convincing and
believed his testimony that said stipulation was inserted only after he had affixed his
signature on the questioned document. Thus, the CA ruled that respondent did not give
its consent to the stipulation pour autri, making the same null and void ab initio.
The well-settled rule, as reiterated by this Court in Child Learning Center, Inc. v.
Tagorio,11 is that:
Generally, factual findings of the trial court, affirmed by the Court of Appeals, are
final and conclusive and may not be reviewed on appeal. The established exceptions
are: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when
there is grave abuse of discretion; (3) when the findings are grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is
based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee; (7) when the findings
of fact are conclusions without citation of specific evidence on which they are based; (8)
when the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different conclusion; and (9)
when the findings of fact of the Court of Appeals are premised on the absence of
evidence and are contradicted by the evidence on record. (Emphasis
supplied)cralawlibrary
A close scrutiny of the records in this case leads to the conclusion that this case does not
fall under any of the above-mentioned exceptions to the general rule.
The success or failure of this petition is rooted on the credibility of the witnesses. It
should be borne in mind that the trial court is the best judge of the credibility of witnesses
because, as explained in People v. Mendoza:12 [S]ince the trial court has the best
opportunity to observe the demeanor of witnesses while on the stand, it can
discern whether or not they are telling the truth. The unbending jurisprudence is that
its findings on the matter of credibility of witnesses are entitled to the highest degree of
respect and will not be disturbed on appeal.13 (Emphasis supplied)cralawlibrary
As to who between petitioner's witness, Elpidio Guillermo, and respondent's witnesses,
Cheng Yong and Melecio Hernandez, are telling the truth, both the trial court and the
appellate court found in favor of respondent's witnesses. Now, petitioner again fails to
present any circumstance, evidence, or argument that could persuade the Court to
deviate from the above-quoted doctrine.
There is no merit to petitioner's contention that because the document is notarized and
had been registered with the Register of Deeds of Pasig, then there should no longer be
any doubt as to its due execution. Note, however, that the presumption that official duty
has been regularly performed is not conclusive. As provided under Section 3, Rule 131 of
the Revised Rules of Court, such presumption is rebuttable. 14 In this case, the testimony
of petitioner's own witness, Elpidio Guillermo, destroyed this presumption by admitting
that when the document was notarized, Cheng Yong and Melecio Hernandez did not
appear before the notary public. Hence, the notary public did not witness Cheng Yong
affixing his signature on the document.15 Verily, such notarization is useless since there
is no truth whatsoever to the notary public's statement or acknowledgment that the
person who executed the document personally appeared before him and the same was
his free and voluntary act. Such being the case, the Court must rely on the trial court's
observation and conclusions regarding which witnesses are telling the truth.
Considering that there is nothing in the records showing that the findings of fact of both
the trial court and the CA regarding the credibility of the parties' witnesses are incorrect,
this case does not fall under any of the enumerated exceptions to the general rule that
factual findings of the trial court, affirmed by the Court of Appeals, are final and
conclusive and may not be reviewed on appeal.
IN VIEW OF THE FOREGOING, the petition is DENIED for utter lack of merit.
Costs against petitioner.
SO ORDERED.
SPOUSES PEDRO AND PAZ G.R. No. 170563
SURTIDA,
Petitioners,
Present:
PANGANIBAN, C.J.,
Chairperson,*
- versus - YNARES-SANTIAGO,**
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

RURAL BANK OF MALINAO Promulgated:
(ALBAY), INC.,
Respondent. December 20, 2006
x--------------------------------------------------x
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision[1] of the Court of Appeals (CA)
in CA-G.R. CV No. 52591 and its Resolution[2] denying the motion for reconsideration
thereon. The assailed decision reversed and set aside the Decision [3] of the Regional
Trial Court (RTC) of Legazpi City, Branch 7.
Antecedents
On June 16, 1986, the spouses Pedro and Paz Surtida executed a real estate
mortgage over their 1,750 square meters residential land, located in Sto. Domingo,
Albay, in favor of the Rural Bank of Malinao (Albay), Inc. (Rural Bank). The deed was
executed as security for the payment of the P100,000.00 loan the spouses Surtida had
applied for.[4] The deed was filed in the Office of the Registry of Deeds on August 12,
1986.
The spouses Surtida secured a loan of P149,500.00 from the Rural Bank
evidenced by a Promissory Note dated June 16, 1986.[5] On the same day, the spouses
received Cashiers Check Nos. 6947[6] and 6948[7] totalling P140,862.22. The loan was to
mature on December 2, 1987.
On November 4, 1987, the spouses Surtida secured another loan in the amount
of P106,800.00 from the Rural Bank to mature on October 29, 1988.[8] The spouses
Surtida also received the net proceeds of their loan on the same day via Cashiers Check
No. 7641[9] as shown by their signatures at the dorsal portions thereof.
The spouses Surtida failed to pay their loans. On August 31, 1989, they
executed a Dation in Payment over a 300 sq m undivided portion of their property
covered by T.D. No. 519, in payment of their P157,968.20 loan.[10] On January 5, 1990,
the spouses Surtida executed another Dation in Payment in favor of the Rural Bank over
a portion of their property, located in Sto. Nio, Sto. Domingo, Albay.[11]
In a letter dated January 14, 1993, the Rural Bank informed the spouses Surtida that
they were being given a preferential right to repurchase the property. [12] The spouses
Surtida rejected the offer.
On April 20, 1993, the Rural Bank demanded that the spouses Surtida vacate that
portion of Lot 1635 which the spouses Surtida had ceded to it. The spouses Surtida
rejected the Rural Banks demand, and even sent a letter dated May 6, 1993, where they
denied having received any loan from the bank. They further stated that the note in the
real estate mortgage and the dation in payment were simulated contracts. They likewise
demanded for a detailed statement of their loans.
This prompted the Rural Bank to file a complaint against the spouses Surtida for unlawful
detainer in the Municipal Trial Court (MTC).
For their part, the spouses Surtida filed a complaint against the Rural Bank in the RTC of
Legazpi City for the annulment of the promissory notes, real estate mortgage, and dation
in payment. They alleged that they had never secured any loan from the bank; the said
deeds were fictitious; and they were made to sign the documents to enable it to avail of
rediscounting facilities from the Central Bank of the Philippines. They further stated that
they never appeared before the notary public, who appeared to have notarized the said
documents. The spouses Surtida prayed that, after due proceedings, judgment be
rendered in their favor, thus:
WHEREFORE, it is prayed of this Honorable Court that the documents
known as Dacion En Pago xerox copies of which are hereto attached
and marked as ANNEXES A & B declared null and void and without
any force and effect and to condemn further the defendant to pay the
plaintiffs actual and moral damages in the amount of P200,000.00 plus
exemplary damages the amount of which is left to the assessment of
this Honorable Court, and P50,000.00 attorneys fee exclusive of
appearance fee at P1,000.00 per appearance, and to pay the cost of
the suit.
Plaintiffs further pray for whatever other relief and remedy that this
Honorable Court may deem just and proper under the premises.[13]
The case was docketed as Civil Case No. 8792. In its Answer to the complaint, the Rural
Bank specifically denied the material allegations of the spouses Surtida. It averred that
the loans of the spouses Surtida were never presented to the Central Bank for
rediscounting, since rediscounting of loans from rural banks were stopped in 1984, and
was renewed only in March 1991. It alleged that the complaint was filed in retaliation to
the complaint for unlawful detainer it had filed against them.
On January 25, 1996, the RTC rendered judgment in Civil Case No. 8792 in favor of the
spouses Surtida. The dispositive portion of the decision reads:
WHEREFORE, decision is rendered as follows:
1. The documents, Dations in Payment dated August 31,
1989 and January 5, 1990, referred to as Doc. No. 473, Page 97, Book
68, Series of 1989 notarized by Atty. Ireneo de Lumen (Exh. 8-A) and
Doc. No. 51, Page 12, Book 1, Series of 1990 notarized before Atty.
Jose Verches (Exh. B-9), respectively, are declared null and void, and
without force and effect;
2. The Promissory Notes dated June 16, 1986 and November 4,
1987 (Exhibits 1 and 2) and the Real Estate Mortgage dated June 16,
1986 (Exh. 6) and registered on August 12, 1986 which is referred to
as Doc. 1862, Page 74, Book 63, Series of 1986, all executed by the
Spouses Pedro Surtida and Paz Surtida, are likewise declared of no
force and effect; and

3. For lack of factual and legal basis, no award of damages.
No pronouncement as to cost.[14]
The trial court ruled that Rene Imperial, the majority stockholder of the Rural Bank of
Malinao and the Rural Bank of Sto. Domingo, Albay, took advantage of his friendship
with Pedro Surtida (also a stockholder). The latter was made to pre-sign blank forms of
promissory notes, real estate mortgage and dation in payment. The proceeds of the
original loan were remitted to the spouses Surtida on the same date the promissory
notes were executed, and even before the real estate mortgage was registered in the
Office of the Registry of Deeds. According to the trial court, this was impossible because
all these could not have been done in one day. It further declared that the real estate
mortgage was executed as security for the loan secured by plaintiffs in 1982 in the total
amount of P100,000.00 inclusive of interest.However, the spouses Surtida adduced
documentary evidence of their payment of said loans. Hence, the trial court concluded,
the real estate mortgage and the subsequent dation in payment purportedly executed by
the spouses Surtida was without any consideration.
The court gave no probative weight to the documentary and testimonial evidence of the
bank that the spouses had received the proceeds of the two loans via signed cashiers
checks. It averred that the bank failed to furnish the spouses Surtida with a breakdown of
their loan account.[15] The trial court relied in the decision of the CA in Ibay v. Mayon
Savings and Loan Bank.[16]
The Rural Bank appealed the decision to the CA, alleging that:
1. THE LOWER COURT ERRED IN FINDING THAT THE
DEFENDANT RURAL BANK HAS CAUSED PLAINTIFFS TO PRE-
SIGN VARIOUS BLANK FORMS WHICH IS UNSUPPORTED BY ANY
EVIDENCE OF THE PLAINTIFFS BUT SOLELY ON THE BASIS OF
THE DEFENDANTS LOAN DOCUMENTS BEARING THE SAME
DATES AND THE RELEASE OF THE LOAN PROCEEDS PRIOR TO
THE REGISTRATION OF THE REAL ESTATE MORTGAGE.
2. THE LOWER COURT ERRED IN FINDING THAT THE
DEFENDANT BANK FAILED TO PROVE CONSIDERATION FOR
THE PROMISSORY NOTES AND REAL ESTATE MORTGAGE AND
IN EVENTUALLY DECLARING THE DATION IN PAYMENT TO BE
LIKEWISE WITHOUT CONSIDERATION.
3. THE LOWER COURT ERRED IN NOT FINDING THAT
THE PLAINTIFFS VOLUNTARILY CONVEYED THEIR REAL ESTATE
PROPERTIES IN FAVOR OF THE DEFENDANT IN PAYMENT OF
THEIR LOANS.
4. THE LOWER COURT ERRED IN NOT AWARDING TO
THE DEFENDANT ITS CLAIM FOR DAMAGES AGAINST THE
PLAINTIFFS.[17]
On June 23, 2004, the CA rendered judgment reversing the decision of the
RTC.[18] The fallo reads:
WHEREFORE, the foregoing considered, the appealed
decision is REVERSED and SET ASIDE and a new judgment is
hereby rendered declaring the two Dations in Payment dated August
31, 1989 and January 5, 1990, the Real Estate Mortgage dated June
16, 1986 and Promissory Notes dated June 16, 1986 and November 4,
1987 valid and binding. No costs.
SO ORDERED.[19]
According to the appellate court, the spouses Surtidas claim that the assailed documents
were executed merely to accommodate the Rural Bank is belied by the testimonial and
documentary evidence on record. The spouses Surtida received the net proceeds of the
loans as shown by their signatures at the dorsal portion of the cashiers
checks. Moreover, plaintiffs-appellees executed the Dation in Payment without any
protestation. Under Section 9, Rule 130 of the Revised Rules of Court, when the terms of
an agreement have been reduced to writing, as in this case, it is considered as
containing all the terms agreed upon and there can be, between the parties and their
successors-in-interests, no evidence of such terms other than the contents of the written
agreement.[20]
The spouses Surtida filed a Motion for Reconsideration,[21] which the appellate
court likewise denied in a Resolution dated September 29, 2004. The decision of the CA
became final and executory on November 3, 2004. Entry of judgment was, thereafter,
made of record in the book of entries of judgment.
On December 14, 2005, the spouses Surtida, now petitioners, filed the instant
petition, alleging that
The Honorable Court of Appeals decision dated June 23, 2004 and the
order denying the motion for reconsideration dated September 29,
2004 is contrary to law and the decision of the Honorable Supreme
Court issued in cases of similar nature and circumstances.[22]
Petitioners aver that the findings of the trial court on the credibility of the witnesses and
the probative weight of the evidence of the parties should have been accorded
respect. As between the findings of the trial court and that of the CA, the former must
prevail. Moreover, the trial courts Decision is supported by the evidence.
In its comment on the petition, respondent avers that the Decision of the CA had became
final and executory as evidenced by the entry of judgment issued by the CA and made of
record in the book of entries of judgment. Hence, this Court has no appellate jurisdiction
over the Decision of the CA.
Petitioners averred in their Reply that respondent had sold Lot 1635-A to Fe Orense
for P130,000.00 on September 16, 2005 under a Deed of Absolute Sale.[23] The property
covered by T.D. No. 519 had also been sold to Maila Fernandez. Thus, respondent has
no right to appeal via petition for review on certiorari.
The Issues
The Court is to resolve the following issues: (1) whether the Court has appellate
jurisdiction over the Decision and Resolution of the CA; and (2) whether the Decision and
Resolution of the CA are in accord with the evidence and the law.
The petition is denied.
Irrefragably, when petitioners filed their petition in this Court, the Decision of the
CA was already final and executory. The corresponding entry of judgment[24] was already
made of record. Clearly then, the decision of the appellate court is immutable and
unalterable. The rule is that a final judgment may no longer be modified in any respect,
even if the modification is meant to correct erroneous conclusions of fact or law, and
regardless of whether the modification is attempted to be made by the court rendering it
or by the highest court of the land.[25] The doctrine is founded on considerations of public
policy and sound practice that, at the risk of occasional errors, judgments must become
final at some definite point in time.[26]
Even on its merits, the petition is destined to fail.
Indeed, the general rule is that findings of facts of the trial court will not
ordinarily be disturbed by an appellate court absent any clear showing that the trial court
has overlooked, misunderstood or misapplied some facts or circumstances of weight or
substance which could very well affect the outcome of the case. It is the trial court that
had the opportunity to observe the witnesses manner of testifying, their furtive glances,
calmness, sighs or their scant or full realization of their oaths.[27] Nevertheless, the higher
court is not entirely precluded from reviewing and reversing these findings if it is not
convinced that they conform to the evidence of record and to its own impressions of the
credibility of the witnesses.[28]
We quote with approval the Decision of the CA:
Appellees aired their alleged misgivings in signing the foregoing
documents upon the alleged prodding of Rene Imperial that such were
only for the purpose of accommodating appellant in its effort to avail of
the rediscounting scheme of the Central Bank without receiving
consideration thereon. We find this strange. First, granted for the sake
of argument that the two promissory notes were executed by appellees
for the purpose of simulating a loan transaction, it is, however, difficult
to understand why they did not register any protest at all when
appellant sent them demand letters. Their natural reaction upon being
made to pay the alleged simulated loan would have been an irate
refusal and protestation.At that very instance, they should have
immediately asked the court for the nullification of the two promissory
notes and the real estate mortgage they executed for lack of
consideration. Or else, written the bank protesting the demand for
payment if it had really no basis. Surprisingly, they even executed
two dacciones en pago on two separate dates.
Second, the fact that appellees did not denounce appellants letters
dated January 14, 1993 giving them preferential right to repurchase the
property they conveyed by way of dacion en pago and that of April 20,
1993 foreclosing the option given to them to repurchase the subject
property and demanding for them to turn over the possession of the
subject property, is an indicia of the factual and truthful basis of the
said letters. Their belated letter of protest to appellant while bearing the
date of May 6, 1993 which was actually mailed on May 12, 1993, the
date when they received the summons in Civil Case S-170 for unlawful
detainer filed by appellant against them, does not manifest spontaneity
which should characterize a truthful and sincere protest if, indeed, the
letters have no factual basis.
Likewise, we cannot give weight to appellees claim that they did not
receive consideration for the loans they applied for. Their signatures at
the back of the cashiers checks are the clear proof that they received
the amount indicated therein. Jocelyn Da, appellants cashier, testified
as follows:
Atty. De Lumen:
Q In this Exhibit 3 which is made payable to the
order of Pedro Surtida, will you please tell this
Honorable Court who is this Pedro Surtida
appearing as the payee in this Cashiers check?
A He is Pedro Surtida.
Q Is he Pedro Surtida, one of the plaintiffs in this
case?
A Yes, Sir.
Q It appears in this Exhibit 3 that the amount that
was released for the payee
was P94,222.22. What is your proof of showing
that this amount supposedly to be released to
the payee Pedro Surtida was actually received
by him?
A The proof showing that he really received this
amount is the signature at the back of this
check.
Q You said that the proof of showing that the payee
Pedro Surtida received the amount reflected
therein is the signature appearing at the dorsal
side of the check, which appears to be illegible,
why do you say that this is the actual signature
of the payee?
A Because he affixed his signature in my presence.
xxxx
Q In this Exhibit 4 which is Cashiers Check No.
6948, it is appearing that the payee of this
cashiers check is a certain Paz Surtida and the
amount supposedly involved in this check
was P46,640.00. What is also your proof of
showing to the Honorable Court that payee Paz
Surtida received from you this amount
of P46,640.00?
A My proof that she received the amount is the
signature appearing on the back of this check.
xxxx
Atty. De Lumen:
Q Why do you know that the signature appearing on
the dorsal portion of this check was the
signature of the payee?
A Because Paz Surtida affixed her signature in my
presence.
Q Exhibit 5 which is Check No. 7641 was likewise
prepared, where the payee was supposedly
Paz Surtida and Pedro Surtida, in the amount
of P103,062.00. What is also your proof of
showing to the Honorable Court that the payee
of this cashiers check received from you the
amount of P103,000.00 plus?
A My proof that they received are the signatures
appearing on the dorsal side of this check.
xxxx
Atty. De Lumen:
Q Why do you say that the signatures were the
signatures of the payee of the check?
A Because they affixed their signatures in my
presence.
xxxx
Court:
Cross examination.
Atty. Madrilejos:
With the permission of the Honorable Court.
Q In the previous loans obtained by Mr. Surtida, from
the defendant Rural Bank as testified to by you,
did you also issue cashiers check to the
plaintiffs representing the proceeds of those
loans?
A Yes, Sir.
Q Do you have those return checks which
represented the proceeds of those loans?
A What return checks, Sir?
Q The checks which you issued which were
encashed?
A The cashiers checks were prepared by me inside
the bank and that cashiers checks were
encashed also in our bank.
xxxx
Further, appellees are not unlettered persons without a modicum of
intelligence and unfamiliar with the transactions they entered into. They
are educated persons with nay a little experience in bank transactions
specifically in applying for loans as they have obtained several bank
loans previously. Thus, there is no question that appellees fully
understood the import and consequences of their acts when they
signed the two promissory notes, real estate mortgage and the
two daciones en pago on separate occasions.[29]
Petitioners bare denial that they had secured several loans from respondent on June 16,
1986 and November 4, 1987 cannot prevail over the testimonial and documentary
evidence presented in the trial court.
Under Section 3, Rule 131 of the Rules of Court, the following are disputable
presumptions: (1) private transactions have been fair and regular; [30] (2) the ordinary
course of business has been followed;[31] and (3) there was sufficient consideration for a
contract.[32] A presumption may operate against an adversary who has not introduced
proof to rebut it. The effect of a legal presumption upon a burden of proof is to create the
necessity of presenting evidence to meet the legal presumption or the prima facie case
created thereby, and which if no proof to the contrary is presented and offered, will
prevail. The burden of proof remains where it is, but by the presumption, the one who
has that burden is relieved for the time being from introducing evidence in support of the
averment, because the presumption stands in the place of evidence unless rebutted.[33]
The presumption that a contract has sufficient consideration cannot be
overthrown by the bare uncorroborated and self-serving assertion of
petitioners that it has no consideration. To overcome the presumption of consideration,
the alleged lack of consideration must be shown by preponderance of
evidence.[34] Petitioners failed to discharge this burden.
The contracts of Dation in Payment dated August 31, 1989 and January 5,
1990 were duly notarized. It was only after respondent filed its complaint for unlawful
detainer against petitioners that the latter filed their complaint in the RTC. Obviously, the
complaint of petitioners in the RTC was intended to derail the complaint for unlawful
detainer.
IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for lack of
merit. Costs against petitioners.
SO ORDERED.
G.R. No. 174436 January 23, 2013
JUANITA ERMITAO, represented by her Attorney-in-Fact, ISABELO
ERMITAO, Petitioner,
vs.
LAILANIE M. PAGLAS, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to reverse and set aside the Decision1 and Resolution2 dated September 8, 2004
and August 16, 2006, respectively, of the Court of Appeals (CA) in CA-G.R. SP No.
77617.
On November 5, 1999, herein respondent and petitioner, through her representative,
lsabelo R. Ermitao, executed a Contract of Lease wherein petitioner leased in favor of
respondent a 336 square meter residential lot and a house standing thereon located at
No. 20 Columbia St., Phase l, Doa Vicenta Village, Davao City. The contract period is
one (1) year, which commenced on November 4, 1999, with a monthly rental rate of
13,500.00. Pursuant to the contract, respondent paid petitioner 2,000.00 as security
deposit to answer for unpaid rentals and damage that may be cause to the leased unit.
Subsequent to the execution of the lease contract, respondent received information that
sometime in March 1999, petitioner mortgaged the subject property in favor of a certain
Charlie Yap (Yap) and that the same was already foreclosed with Yap as the purchaser
of the disputed lot in an extra-judicial foreclosure sale which was registered on February
22, 2000. Yap's brother later offered to sell the subject property to respondent.
Respondent entertained the said offer and negotiations ensued. On June 1, 2000,
respondent bought the subject property from Yap for 950,000.00. A Deed of Sale of
Real Property was executed by the parties as evidence of the contract. However, it was
made clear in the said Deed that the property was still subject to petitioner's right of
redemption.
Prior to respondent's purchase of the subject property, petitioner filed a suit for the
declaration of nullity of the mortgage in favor of Yap as well as the sheriff's provisional
certificate of sale which was issued after the disputed house and lot were sold on
foreclosure.
Meanwhile, on May 25, 2000, petitioner sent a letter demanding respondent to pay the
rentals which are due and to vacate the leased premises. A second demand letter was
sent on March 25, 2001. Respondent ignored both letters.
On August 13, 2001, petitioner filed with the Municipal Trial Court in Cities (MTCC),
Davao City, a case of unlawful detainer against respondent.
In its Decision dated November 26, 2001, the MTCC, Branch 6, Davao City dismissed
the case filed by petitioner and awarded respondent the amounts of 25,000.00 as
attorney's fees and 2,000.00 as appearance fee.
Petitioner filed an appeal with the Regional Trial Court (RTC) of Davao City.
On February 14, 2003, the RTC rendered its Decision, the dispositive portion of which
reads as follows:
WHEREFORE, PREMISES CONSIDERED, the assailed Decision is AFFIRMED with
MODIFICATION. AFFIRMED insofar as it dismissed the case for unlawful detainer but
modified in that the award of attorney's fees in defendant's herein respondent's favor is
deleted and that the defendant respondent is ordered to pay plaintiff herein petitioner the
equivalent of ten months unpaid rentals on the property or the total sum of 135,000.00.
SO ORDERED.3
The RTC held that herein respondent possesses the right to redeem the subject property
and that, pending expiration of the redemption period, she is entitled to receive the rents,
earnings and income derived from the property.
Aggrieved by the Decision of the RTC, petitioner filed a petition for review with the CA.
On September 8, 2004, the CA rendered its assailed Decision disposing, thus:
WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court,
Branch 16, 11th Judicial Region, Davao City is AFFIRMED with the MODIFICATIONS as
follows:
(a) Private respondent's obligation to pay the petitioner the amount of ONE
HUNDRED THIRTY-FIVE THOUSAND PESOS (135,000.00) equivalent of ten
(10) months is hereby DELETED;
(b) Attorney's fees and litigation expenses were correctly awarded by the trial
court having compelled the private respondent to litigate and incur expenses to
protect her interests by reason of the unjustified act of petitioner (Producers
Bank of the Philippines vs. Court of Appeals, 365 SCRA 326), Thus: litigation
expenses of only TEN THOUSAND PESOS (10,000.00) not TWENTY-FIVE
THOUSAND PESOS (25,000.00); and
(c) Attorney's fees REI NSTAT ED in the amount of TEN THOUSAND PESOS
(10,000.00) instead of only TWO THOUSAND PESOS (2,000.00).
SO ORDERED.4
Quoting extensively from the decision of the MTCC as well as on respondent's comment
on the petition for review, the CA ruled that respondent did not act in bad faith when she
bought the property in question because she had every right to rely on the validity of the
documents evidencing the mortgage and the foreclosure proceedings.
Petitioner filed a Motion for Reconsideration, but the CA denied it in its Resolution dated
August 16, 2006.
Hence, the instant petition for review on certiorari raising the following assignment of
errors:
A.WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISMISSING
THE UNLAWFUL DETAINER CASE BY RULING THAT A SHERIFF'S FINAL
CERTIFICATE OF SALE WAS ALREADY ISSUED WHICH DECISION IS NOT
BASED ON THE EVIDENCE AND IN ACCORDANCE WITH THE APPLICABLE
LAWS AND JURISPRUDENCE.
B. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED
THAT PRIVATE RESPONDENT WAS A BUYER IN GOOD FAITH EVEN IF
SHE WAS INFORMED BY PETITIONER THROUGH A LETTER ADVISING
HER THAT THE REAL ESTATE MORTGAGE CONTRACT WAS SHAM,
FICTITIOUS AS IT WAS A PRODUCT OF FORGERY BECAUSE
PETITIONER'S PURPORTED SIGNATURE APPEARING THEREIN WAS
SIGNED AND FALSIFIED BY A CERTAIN ANGELA CELOSIA.
C. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
AWARDED ATTORNEY'S FEES WHICH WAS DELETED BY RTC-BRANCH
16 OF DAVAO CITY DESPITE THE ABSENCE OF ANY EXPLANATION
AND/OR JUSTIFICATION IN THE BODY OF THE DECISION.5
At the outset, it bears to reiterate the settled rule that the only question that the courts
resolve in ejectment proceedings is: who is entitled to the physical possession of the
premises, that is, to the possession de facto and not to the possession de jure.6 It does
not even matter if a party's title to the property is questionable. 7 In an unlawful detainer
case, the sole issue for resolution is the physical or material possession of the property
involved, independent of any claim of ownership by any of the party litigants. 8 Where the
issue of ownership is raised by any of the parties, the courts may pass upon the same in
order to determine who has the right to possess the property. 9The adjudication is,
however, merely provisional and would not bar or prejudice an action between the same
parties involving title to the property.10
In the instant case, pending final resolution of the suit filed by petitioner for the
declaration of nullity of the real estate mortgage in favor of Yap, the MTCC, the RTC and
the CA were unanimous in sustaining the presumption of validity of the real estate
mortgage over the subject property in favor of Yap as well as the presumption of
regularity in the performance of the duties of the public officers who subsequently
conducted its foreclosure sale and issued a provisional certificate of sale. Based on the
presumed validity of the mortgage and the subsequent foreclosure sale, the MTCC, the
RTC and the CA also sustained the validity of respondent's purchase of the disputed
property from Yap. The Court finds no cogent reason to depart from these rulings of the
MTCC, RTC and CA. Thus, for purposes of resolving the issue as to who between
petitioner and respondent is entitled to possess the subject property, this presumption
stands.
Going to the main issue in the instant petition, it is settled that in unlawful detainer, one
unlawfully withholds possession thereof after the expiration or termination of his right to
hold possession under any contract, express or implied. 11 In such case, the possession
was originally lawful but became unlawful by the expiration or termination of the right to
possess; hence, the issue of rightful possession is decisive for, in such action, the
defendant is in actual possession and the plaintiffs cause of action is the termination of
the defendants right to continue in possession.12
In the instant petition, petitioner's basic postulate in her first and second assigned errors
is that she remains the owner of the subject property. Based on her contract of lease with
respondent, petitioner insists that respondent is not permitted to deny her title over the
said property in accordance with the provisions of Section 2 (b), Rule 131 of the Rules of
Court.
The Court does not agree.
The conclusive presumption found in Section 2 (b), Rule 131 of the Rules of Court,
known as estoppel against tenants, provides as follows:
Sec. 2. Conclusive presumptions. The following are instances of conclusive
presumptions:
xxxx
(b) The tenant is not permitted to deny the title of his landlord at the time of the
commencement of the relation of landlord and tenant between them. (Emphasis
supplied).
It is clear from the abovequoted provision that what a tenant is estopped from denying is
the title of his landlord at the time of the commencement of the landlord-tenant
relation.13 If the title asserted is one that is alleged to have been acquired subsequent to
the commencement of that relation, the presumption will not apply. 14 Hence, the tenant
may show that the landlord's title has expired or been conveyed to another or himself;
and he is not estopped to deny a claim for rent, if he has been ousted or evicted by title
paramount.15 In the present case, what respondent is claiming is her supposed title to the
subject property which she acquired subsequent to the commencement of the landlord-
tenant relation between her and petitioner. Hence, the presumption under Section 2 (b),
Rule 131 of the Rules of Court does not apply.
The foregoing notwithstanding, even if respondent is not estopped from denying
petitioner's claim for rent, her basis for such denial, which is her subsequent acquisition
of ownership of the disputed property, is nonetheless, an insufficient excuse from
refusing to pay the rentals due to petitioner.
There is no dispute that at the time that respondent purchased Yap's rights over the
subject property, petitioner's right of redemption as a mortgagor has not yet expired. It is
settled that during the period of redemption, it cannot be said that the mortgagor is no
longer the owner of the foreclosed property, since the rule up to now is that the right of a
purchaser at a foreclosure sale is merely inchoate until after the period of redemption has
expired without the right being exercised.16 The title to land sold under mortgage
foreclosure remains in the mortgagor or his grantee until the expiration of the redemption
period and conveyance by the master's deed.17 Indeed, the rule has always been that it
is only upon the expiration of the redemption period, without the judgment debtor having
made use of his right of redemption, that the ownership of the land sold becomes
consolidated in the purchaser.18
Stated differently, under Act. No. 3135, the purchaser in a foreclosure sale has, during
the redemption period, only an inchoate right and not the absolute right to the property
with all the accompanying incidents.19 He only becomes an absolute owner of the
property if it is not redeemed during the redemption period.20
Pending expiration of the period of redemption, Section 7 of Act No. 3135, 21 as
amended, provides:
Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the
Court of First Instance of the province or place where the property or any part thereof is
situated, to give him possession thereof during the redemption period, furnishing bond in
an amount equivalent to the use of the property for a period of twelve months, to
indemnify the debtor in case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act. Such petition shall be
made under oath and filed in [the] form of an ex parte motion in the registration or
cadastral proceedings if the property is registered, or in special proceedings in the case
of property registered under the Mortgage Law or under section one hundred and ninety-
four of the Administrative Code, or of any other real property encumbered with a
mortgage duly registered in the office of any register of deeds in accordance with any
existing law, and in each case the clerk of the court shall, upon the filing of such petition,
collect the fees specified in paragraph eleven of section one hundred and fourteen of Act
Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight
hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is
situated, who shall execute said order immediately.
Thus, it is clear from the abovequoted provision of law that, as a consequence of the
inchoate character of the purchaser's right during the redemption period, Act. No. 3135,
as amended, allows the purchaser at the foreclosure sale to take possession of the
property only upon the filing of a bond, in an amount equivalent to the use of the property
for a period of twelve (12) months, to indemnify the mortgagor in case it be shown that
the sale was made in violation of the mortgage or without complying with the
requirements of the law. In Cua Lai Chu v. Laqui,22 this Court reiterated the rule earlier
pronounced in Navarra v. Court of Appeals23 that the purchaser at an extrajudicial
foreclosure sale has a right to the possession of the property even during the one-year
redemption period provided the purchaser files an indemnity bond. That bond,
nonetheless, is not required after the purchaser has consolidated his title to the property
following the mortgagor's failure to exercise his right of redemption for in such a case, the
former has become the absolute owner thereof.24
It, thus, clearly follows from the foregoing that, during the period of redemption, the
mortgagor, being still the owner of the foreclosed property, remains entitled to the
physical possession thereof subject to the purchaser's right to petition the court to give
him possession and to file a bond pursuant to the provisions of Section 7 of Act No.
3135, as amended. The mere purchase and certificate of sale alone do not confer any
right to the possession or beneficial use of the premises. 25
In the instant case, there is neither evidence nor allegation that respondent, as purchaser
of the disputed property, filed a petition and bond in accordance with the provisions of
Section 7 of Act No. 3135. In addition, respondent defaulted in the payment of her rents.
Thus, absent respondent's filing of such petition and bond prior to the expiration of the
period of redemption, coupled with her failure to pay her rent, she did not have the right
to possess the subject property.
On the other hand, petitioner, as mortgagor and owner, was entitled not only to the
possession of the disputed house and lot but also to the rents, earnings and income
derived therefrom. In this regard, the RTC correctly cited Section 32, Rule 39 of the
Rules of Court which provides as follows:
Sec. 32. Rents, earnings and income of property pending redemption. The purchaser
or a redemptioner shall not be entitled to receive the rents, earnings and income of the
property sold on execution, or the value of the use and occupation thereof when such
property is in the possession of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment obligor until the expiration of
his period of redemption. (Emphasis supplied)
While the above rule refers to execution sales, the Court finds no cogent reason not to
apply the same principle to a foreclosure sale, as in this case.
The situation became different, however, after the expiration of the redemption period on
February 23, 2001. Since there is no allegation, much less evidence, that petitioner
redeemed the subject property within one year from the date of registration of the
certificate of sale, respondent became the owner thereof. Consolidation of title becomes
a right upon the expiration of the redemption period.26 Having become the owner of the
disputed property, respondent is then entitled to its possession.
As a consequence, petitioner's ejectment suit filed against respondent was rendered
moot when the period of redemption expired on February 23, 2001 without petitioner
having redeemed the subject property, for upon expiration of such period petitioner lost
his possessory right over the same. Hence, the only remaining right that petitioner can
enforce is his right to the rentals during the time that he was still entitled to physical
possession of the subject property that is from May 2000 until February 23,
2001.1wphi1
In this regard, this Court agrees with the findings of the MTCC that, based on the
evidence and the pleadings filed by petitioner, respondent is liable for payment of rentals
beginning May 2000 until February 2001, or for a period of ten (10) months. However, it
is not disputed that respondent already gave to petitioner the sum of 27,000.00, which
is equivalent to two (2) months rental, as deposit to cover for any unpaid rentals. It is
only proper to deduct this amount from the rentals due to petitioner, thus leaving
108,000.00 unpaid rentals.
As to attorneys fees and litigation expenses, the Court agrees with the RTC that since
petitioner is, in entitled to unpaid rentals, her complaint which, among others, prays for
the payment of unpaid rentals, is justified. Thus, the award of attorney' and litigation
expenses to respondent should be deleted.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
77617, dated September 8, 2004 and August 16, 2006, respectively, are AFFIRMED with
the following MODIFICATIONS: (1) respondent is ORDERED to pay petitioner
108,000.00 as and for unpaid rentals; (2) the award of attorneys fees and litigation
expenses to respondent is DELETED.
SO ORDERED.
G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE
JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE
SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN,
GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO
TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN
(OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO
OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO
MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO
ACUPIDO, respondents.
CUEVAS, JR., J.:
On August 21, 1983, a crime unparalleled in repercussions and ramifications was
committed inside the premises of the Manila International Airport (MIA) in Pasay City.
Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the
country after a long-sojourn abroad, was gunned down to death. The assassination
rippled shock-waves throughout the entire country which reverberated beyond the
territorial confines of this Republic. The after-shocks stunned the nation even more as
this ramified to all aspects of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free,
unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was
promulgated creating an ad hoc Fact Finding Board which later became more popularly
known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the
Board conducted public hearings wherein various witnesses appeared and testified
and/or produced documentary and other evidence either in obedience to a subpoena or
in response to an invitation issued by the Board Among the witnesses who appeared,
testified and produced evidence before the Board were the herein private respondents
General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt.
Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC
Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency,
President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano
Agrava; and another one, jointly authored by the other members of the Board namely:
Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto
Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for
appropriate action. After conducting the necessary preliminary investigation, the
TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-
one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No.
10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was
found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that
same fateful day. In both criminal cases, private respondents were charged as
accessories, along with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded
NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution
represented by the Office of the petition TANODBAYAN, marked and thereafter offered
as part of its evidence, the individual testimonies of private respondents before the
Agrava Board. 6 Private respondents, through their respective counsel objected to the
admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude
Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against
him in the above-entitled cases" 7 contending that its admission will be in derogation of
his constitutional right against self-incrimination and violative of the immunity granted by
P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the
prosecution. Major Gen. Olivas and the rest of the other private respondents likewise
filed separate motions to exclude their respective individual testimonies invoking the
same ground. 8 Petitioner TANODBAYAN opposed said motions contending that the
immunity relied upon by the private respondents in support of their motions to exclude
their respective testimonies, was not available to them because of their failure to invoke
their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent
SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit
their respective memorandum on the issue after which said motions will be considered
submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been
required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without
the pending motions for exclusion being resolved, issued a Resolution directing that by
agreement of the parties, the pending motions for exclusion and the opposition thereto,
together with the memorandum in support thereof, as well as the legal issues and
arguments, raised therein are to be considered jointly in the Court's Resolution on the
prosecution's formal offer of exhibits and other documentary evidences.11 On June 3,
1985, the prosecution made a written "Formal Offer of Evidence" which includes, among
others, the testimonies of private respondents and other evidences produced by them
before the Board, all of which have been previously marked in the course of the trial.12
All the private respondents objected to the prosecution's formal offer of evidence on the
same ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in
these two (2) petitions, admitting all the evidences offered by the prosecution except the
testimonies and/or other evidence produced by the private respondents in view of the
immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED,
they now come before Us by way of certiorari 14 praying for the amendment and/or
setting aside of the challenged Resolution on the ground that it was issued without
jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private
prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a
separate petition for certiorari 15 on the same ground. Having arisen from the same
factual beginnings and raising practically Identical issues, the two (2) petitioners were
consolidated and will therefore be jointly dealt with and resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies
given by the eight (8) private respondents who did not invoke their rights against self-
incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner
TANODBAYAN, that said testimonies are admissible against the private respondents,
respectively, because of the latter's failure to invoke before the Agrava Board the
immunity granted by P.D. 1886. Since private respondents did not invoke said privilege,
the immunity did not attach. Petitioners went further by contending that such failure to
claim said constitutional privilege amounts to a waiver thereof. 16 The private
respondents, on the other hand, claim that notwithstanding failure to set up the privilege
against self- incrimination before the Agrava Board, said evidences cannot be used
against them as mandated by Section 5 of the said P.D. 1886. They contend that without
the immunity provided for by the second clause of Section 5, P.D. 1886, the legal
compulsion imposed by the first clause of the same Section would suffer from
constitutional infirmity for being violative of the witness' right against self-
incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal
significance of failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been
previously called upon to rule on issues involving immunity statutes. The relative novelty
of the question coupled with the extraordinary circumstance that had precipitated the
same did nothing to ease the burden of laying down the criteria upon which this Court will
henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry.
In carrying out this monumental task, however, We shall be guided, as always, by the
constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an
impartial and independent body, instead of any ordinary police agency, be charged with
the task of conducting the investigation. The then early distortions and exaggerations,
both in foreign and local media, relative to the probable motive behind the assassination
and the person or persons responsible for or involved in the assassination hastened its
creation and heavily contributed to its early formation. 19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth
and in fact, and to all legal intents and purposes, an entity charged, not only with the
function of determining the facts and circumstances surrounding the killing, but more
importantly, the determination of the person or persons criminally responsible therefor so
that they may be brought before the bar of justice. For indeed, what good will it be to the
entire nation and the more than 50 million Filipinos to know the facts and circumstances
of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This
purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion
of which provides
SECTION 12. The findings of the Board shall be made public. Should
the findings warrant the prosecution of any person, the Board may
initiate the filing of proper complaint with the appropriate got
government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to
the ascertainment and/or determination of the culprit or culprits, their consequent
prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any
person called to testify before the Board the right to counsel at any stage of the
proceedings." 20 Considering the foregoing environmental settings, it cannot be denied
that in the course of receiving evidence, persons summoned to testify will include not
merely plain witnesses but also those suspected as authors and co-participants in the
tragic killing. And when suspects are summoned and called to testify and/or produce
evidence, the situation is one where the person testifying or producing evidence is
undergoing investigation for the commission of an offense and not merely in order to
shed light on the facts and surrounding circumstances of the assassination, but more
importantly, to determine the character and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects in the said
assassination, all of whom except Generals Ver and Olivas, were detained (under
technical arrest) at the time they were summoned and gave their testimonies before the
Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right
to remain silent. They were compelled to testify or be witnesses against themselves.
Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify
or produce evidence, under pain of contempt if they failed or refused to do so. 21 The
jeopardy of being placed behind prison bars even before conviction dangled before their
very eyes. Similarly, they cannot invoke the right not to be a witness against themselves,
both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both
these constitutional rights (to remain silent and not to be compelled to be a witness
against himself) were right away totally foreclosed by P.D. 1886. And yet when they so
testified and produced evidence as ordered, they were not immune from prosecution by
reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to a person
undergoing custodial interrogation? We find no categorical statement in the constitutional
provision on the matter which reads:
... Any person under investigation for the commission of an offense
shall have the right to remain and to counsel, and to be informed of
such right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on
this specific portion of the subject provision. In all these cases, it has been categorically
declared that a person detained for the commission of an offense undergoing
investigation has a right to be informed of his right to remain silent, to counsel, and to an
admonition that any and all statements to be given by him may be used against him.
Significantly however, there has been no pronouncement in any of these cases nor in
any other that a person similarly undergoing investigation for the commission of an
offense, if not detained, is not entitled to the constitutional admonition mandated by said
Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by
having it inserted between the words "under" and investigation", as in fact the sentence
opens with the phrase "any person " goes to prove that they did not adopt in toto the
entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners'
contention that the use of the word "confession" in the last sentence of said Section 20,
Article 4 connotes the Idea that it applies only to police investigation, for although the
word "confession" is used, the protection covers not only "confessions" but also
"admissions" made in violation of this section. They are inadmissible against the source
of the confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable
ordeal and graver trying conditions than one who is at liberty while being investigated.
But the common denominator in both which is sought to be avoided is the evil of extorting
from the very mouth of the person undergoing interrogation for the commission of an
offense, the very evidence with which to prosecute and thereafter convict him. This is the
lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military
contingent that escorted Sen. Aquino while disembarking from the plane that brought him
home to Manila on that fateful day. Being at the scene of the crime as such, they were
among the first line of suspects in the subject assassination. General Ver on the other
hand, being the highest military authority of his co-petitioners labored under the same
suspicion and so with General Olivas, the first designated investigator of the tragedy, but
whom others suspected, felt and believed to have bungled the case. The papers,
especially the foreign media, and rumors from uglywagging tongues, all point to them as
having, in one way or another participated or have something to do, in the alleged
conspiracy that brought about the assassination. Could there still be any doubt then that
their being asked to testify, was to determine whether they were really conspirators and if
so, the extent of their participation in the said conspiracy? It is too taxing upon one's
credulity to believe that private respondents' being called to the witness stand was
merely to elicit from them facts and circumstances surrounding the tragedy, which was
already so abundantly supplied by other ordinary witnesses who had testified earlier. In
fact, the records show that Generals Ver and Olivas were among the last witnesses
called by the Agrava Board. The subject matter dealt with and the line of questioning as
shown by the transcript of their testimonies before the Agrava Board, indubitably evinced
purposes other than merely eliciting and determining the so-called surrounding facts and
circumstances of the assassination. In the light of the examination reflected by the
record, it is not far-fetched to conclude that they were called to the stand to determine
their probable involvement in the crime being investigated. Yet they have not been
informed or at the very least even warned while so testifying, even at that particular stage
of their testimonies, of their right to remain silent and that any statement given by them
may be used against them. If the investigation was conducted, say by the PC, NBI or by
other police agency, all the herein private respondents could not have been compelled to
give any statement whether incriminatory or exculpatory. Not only that. They are also
entitled to be admonished of their constitutional right to remain silent, to counsel, and be
informed that any and all statements given by them may be used against them. Did they
lose their aforesaid constitutional rights simply because the investigation was by the
Agrava Board and not by any police investigator, officer or agency? True, they continued
testifying. May that be construed as a waiver of their rights to remain silent and not to be
compelled to be a witness against themselves? The answer is yes, if they have the
option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the
awesome contempt power of the Board to punish any refusal to testify or produce
evidence, We are not persuaded that when they testified, they voluntarily waived their
constitutional rights not to be compelled to be a witness against themselves much less
their right to remain silent.
Compulsion as it is understood here does not necessarily connote the
use of violence; it may be the product of unintentional statements.
Pressure which operates to overbear his will, disable him from making
a free and rational choice, or impair his capacity for rational judgment
would in our opinion be sufficient. So is moral coercion 'tending to
force testimony from the unwilling lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New
Jersey" where certain police officers summoned to an inquiry being conducted by the
Attorney General involving the fixing of traffic tickets were asked questions following a
warning that if they did not answer they would be removed from office and that anything
they said might be used against them in any criminal proceeding, and the questions were
answered, the answers given cannot over their objection be later used in their
prosecutions for conspiracy. The United States Supreme Court went further in holding
that:
the protection of the individuals under the Fourteenth Amendment
against coerced statements prohibits use in subsequent proceedings
of statements obtained under threat or removal from office, and that it
extends to all, whether they are policemen or other members of the
body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in
the context of threats of removal from office the act of responding to
interrogation was not voluntary and was not an effective waiver of the
privilege against self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause,
petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to
be compelled to be a witness against himself" applies only in favor of an accused in a
criminal case. Hence, it may not be invoked by any of the herein private respondents
before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily
against this theory. Said case is not a criminal case as its title very clearly indicates. It is
not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal
refused to take the stand, to be sworn and to testify upon being called as a witness for
complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained
Cabal's plea that for him to be compelled to testify will be in violation of his right against
self- incrimination. We did not therein state that since he is not an accused and the case
is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that
he can invoke his right against self-incrimination only when a question which tends to
elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the
character of the suit involved but the nature of the proceedings that controls. The
privilege has consistently been held to extend to all proceedings sanctioned by law and
to all cases in which punishment is sought to be visited upon a witness, whether a party
or not. 29 If in a mere forfeiture case where only property rights were involved, "the right
not to be compelled to be a witness against himself" is secured in favor of the defendant,
then with more reason it cannot be denied to a person facing investigation before a Fact
Finding Board where his life and liberty, by reason of the statements to be given by him,
hang on the balance. Further enlightenment on the subject can be found in the historical
background of this constitutional provision against self- incrimination. The privilege
against self- incrimination is guaranteed in the Fifth Amendment to the Federal
Constitution. In the Philippines, the same principle obtains as a direct result of American
influence. At first, the provision in our organic laws were similar to the Constitution of the
United States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness
against himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make
said provision also applicable to cases other than criminal. Decidedly then, the right "not
to be compelled to testify against himself" applies to the herein private respondents
notwithstanding that the proceedings before the Agrava Board is not, in its strictest
sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred
constitutional rights, but also the right to "due process" which is fundamental
fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this
Court, the former Chief Justice Enrique M. Fernando, due process
... is responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason
and result in sheer oppression. Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly, it has been
 Identified as freedom from arbitrariness. It is the embodiment of the
sporting Idea of fair play (Frankfurter, Mr. Justice Holmes and the
Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings for
justice and judges the act of officialdom of whatever branch "in the light
of reason drawn from considerations of fairness that reflect
(democratic) traditions of legal and political thought."(Frankfurter,
Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or
'"echnical conception with fixed content unrelated to time, place and
circumstances."(Cafeteria Workers v. McElroy 1961, 367 US
1230) Decisions based on such a clause requiring a 'close and
perceptive inquiry into fundamental principles of our society. (Bartkus
vs. Illinois, 1959, 359 US 121). Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases. (Pearson
v. McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and
compliance with due process. The manner in which the testimonies were taken from
private respondents fall short of the constitutional standards both under the DUE
PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In
the face of such grave constitutional infirmities, the individual testimonies of private
respondents cannot be admitted against them in ally criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence of a grant of
immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to
the availability to private respondents of the immunity provided for in Section 5, P.D.
1886 which issue was squarely raised and extensively discussed in the pleadings and
oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity";
and the other, which grants what is known as "transactional immunity." The distinction
between the two is as follows: "Use immunity" prohibits use of witness' compelled
testimony and its fruits in any manner in connection with the criminal prosecution of the
witness. On the other hand, "transactional immunity" grants immunity to the witness from
prosecution for an offense to which his compelled testimony relates." 32 Examining
Presidential Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena issued by the Board on the
ground that his testimony or the evidence required of him may tend to
incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in
connection with any transaction, matter or thing concerning which he is
compelled, after having invoked his privilege against self-incrimination,
to testify or produce evidence, except that such individual so testifying
shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or
removal from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants
merely immunity from use of any statement given before the Board, but not immunity
from prosecution by reason or on the basis thereof. Merely testifying and/or producing
evidence do not render the witness immuned from prosecution notwithstanding his
invocation of the right against self- incrimination. He is merely saved from the use against
him of such statement and nothing more. Stated otherwise ... he still runs the risk of
being prosecuted even if he sets up his right against self- incrimination. The dictates of
fair play, which is the hallmark of due process, demands that private respondents should
have been informed of their rights to remain silent and warned that any and all
statements to be given by them may be used against them. This, they were denied,
under the pretense that they are not entitled to it and that the Board has no obligation to
so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by
the petitioners that the right against self-incrimination must be invoked before the Board
in order to prevent use of any given statement against the testifying witness in a
subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant
to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained
in violation of this section shall be inadmissible in evidence. (Emphasis
supplied)
The aforequoted provision renders inadmissible any confession obtained in violation
thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions
but also to admissions, 33 whether made by a witness in any proceeding or by an
accused in a criminal proceeding or any person under investigation for the commission of
an offense. Any interpretation of a statute which will give it a meaning in conflict with the
Constitution must be avoided. So much so that if two or more constructions or
interpretations could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for this purpose to
disregard the more usual and apparent import of the language used. 34 To save the
statute from a declaration of unconstitutionality it must be given a reasonable
construction that will bring it within the fundamental law. 35Apparent conflict between two
clauses should be harmonized. 36
But a literal application of a requirement of a claim of the privilege against self-
incrimination as a condition sine qua non to the grant of immunity presupposes that from
a layman's point of view, he has the option to refuse to answer questions and therefore,
to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing
sanctions upon its exercise, thus:
SEC. 4. The Board may hold any person in direct or indirect contempt,
and impose appropriate penalties therefor. A person guilty of ....
including ... refusal to be sworn or to answer as a witness or to
subscribe to an affidavit or deposition when lawfully required to do so
may be summarily adjudged in direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no
choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The
absurdity of such application is apparent Sec. 5 requires a claim which it, however,
forecloses under threat of contempt proceedings against anyone who makes such claim.
But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the
light of the sanctions provided in Section 4,infringes upon the witness' right against self-
incrimination. As a rule, such infringement of the constitutional right renders inoperative
the testimonial compulsion, meaning, the witness cannot be compelled to answer
UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under
the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness
before he can be required to answer, so as to safeguard his sacred constitutional right.
But in this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional rights are
therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to
construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore,
that in view of the potent sanctions imposed on the refusal to testify or to answer
questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed
immunized under Section 5 of the same law. The applicability of the immunity granted by
P.D. 1886 cannot be made to depend on a claim of the privilege against self-
incrimination which the same law practically strips away from the witness.
With the stand we take on the issue before Us, and considering the temper of the times,
we run the risk of being consigned to unpopularity. Conscious as we are of, but
undaunted by, the frightening consequences that hover before Us, we have strictly
adhered to the Constitution in upholding the rule of law finding solace in the view very
aptly articulated by that well-known civil libertarian and admired defender of human rights
of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and
we quote:
I am completely conscious of the need for a balancing of the interests
of society with the rights and freedoms of the individuals. I have
advocated the balancing-of-interests rule in an situations which call for
an appraisal of the interplay of conflicting interests of consequential
dimensions. But I reject any proposition that would blindly uphold the
interests of society at the sacrifice of the dignity of any human being.
(Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition passing
upon the guilt or innocence of the herein private respondents an issue which is before
the Sandiganbayan. We are merely resolving a question of law and the pronouncement
herein made applies to all similarly situated, irrespective of one's rank and status in
society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions
without merit, same are DISMISSED. No pronouncement as to costs.
SO ORDERED.
Aquino, J., concurs (as certified by Makasiar, C.J.).
Abad Santos, J., is on leave.
Separate Opinions
MAKASIAR, C.J., concurring:
To admit private respondents' testimonies and evidence before the Fact-Finding Board
(FFB) against them in the criminal prosecution pending before the Sandiganbayan, would
violate their constitutional or human rights the right to procedural due process, the right to
remain silent, and the right against self- incrimination.
That their testimonies and other evidence they submitted before the FFB in these
criminal cases are incriminatory, is confirmed by the very fact that such testimonies and
evidence were the very bases of the majority report of the FFB recommending the
prosecution of private respondents as accessories.
It should be stressed that the basic purposes of the right against self- incrimination are
(1) humanity or humanitarian reasons to prevent a witness or accused from being
coerced, whether physically, morally, and/or psychologically, into incriminating himself,
and (2) to protect the witness or accused from committing perjury, because the first law
of nature is self- preservation.
The utilization in the prosecution against them before the Sandiganbayan of the
testimonies and other evidence of private respondents before the FFB collides with
Section 1, Section 17 and Section 20 of the Bill of Rights of the 1973 Constitution:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal
of the laws.
xxx xxx xxx
Section 17, No person shall be held to answer for a criminal offense
without due process of law.
xxx xxx xxx
Section 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any
other means which vitiates the free will shall be used against him. Any
confession obtained in violation of this Section shall be inadmissible in
evidence.
The Bill of Rights constitutes the reservation of the sovereign people against, as well as
the limitation on, the delegated powers of government. These rights thus enshrined need
no express assertion. On the contrary, the police and prosecution officers of the country
should respect these constitutional liberties as directed in the recent decision in the
Hildawa and Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The
established jurisprudence is that waiver by the citizen of his constitutional rights should
be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US 458, 464,
cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. CA, 24 SCRA 663,
682-683).
The use of testimonies and other evidence of private respondents before the FFB against
them in the criminal cases subsequently filed before the Sandiganbayan would trench
upon the constitutional guarantees that "no person shall be deprived of life, liberty, or
property without due process of law ... that "no person shall be held to answer for a
criminal offense without due process of law" and that (Section 17, Article IV, 1973
Constitution), that "no person shall be compelled to be a witness against himself. ..." and
that " a person has the right to remain silent ..." (Section 20, Article IV, 1973
Constitution).
There can be no implied waiver of a citizen's right against self-incrimination or of his right
to remain silent.
Any such renunciation cannot be predicated on such a slender or tenuous reed as a
dubious implication. Otherwise, it would be easier to lose the human rights guaranteed
by the Bill of Rights than to protect or preserve them; it would be easier to enslave the
citizen than for him to remain free. Such a result was never intended by the Founding
Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no person shall be
compelled to be a witness against himself," applies to both the ordinary witness and the
suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right against self-
incrimination and all other constitutional rights by the witness or by the accused, is the
fact that the right against double jeopardy can only be renounced by the accused if the
criminal case against him is dismissed or otherwise terminated with his express consent.
Without such express consent to the dismissal or termination of the case, the accused
can always invoke his constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would become a booby
trap for the unsuspecting or unwary witness, A witness summoned either by subpoena or
by Invitation to testify before the FFB under Section 5, cannot refuse, under pain of
contempt, to testify or produce evidence required of him on the ground that his testimony
or evidence may tend to incriminate or subject him to a penalty or forfeiture; because the
same Section 5 prohibits the use of such testimony or evidence which may tend to
incriminate him in any criminal prosecution that may be filed against him. The law or
decree cannot diminish the scope and extent of the guarantee against self-incrimination
or the right to remain silent or the right against being held to answer for a criminal offense
without due process of law, or against deprivation of his life, liberty or property without
due process of law.
As a matter of fact, numerous decisions culled by American jurisprudence are partial to
the rule that immunity statutes which compel a citizen to testify, should provide an
immunity from prosecution that is as co-extensive, as total and as absolute as the
guarantees themselves (Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-
1623; Kastigar vs. US 1972, 406 US 441).
Even if the witness testified pursuant to an invitation, the invitation does not remove the
veiled threat of compulsion, because as stated in the Chavez case, supra.
Compulsion as it is understood here does not necessarily connote the
use of violence; it may be the product of unintentional statements.
Pressures which operate to overbear his will, disable him from making
a free and rational choice, or impair his capacity for rational judgment
would in our opinion be sufficient. So is moral coercion attending to
force testimony from the unwilling lips of the defendant (Chavez vs.
Court of Appeals, 24 SCRA 663, 679).
The summons issued to private respondents has been euphemistically called as an
invitation, instead of a subpoena or subpoena duces tecum, as a sign of respect for the
important and high positions occupied by private respondents. But the effect of such an
invitation thus worded is the same as a subpoena or subpoena duces tecum. Precisely,
the phraseology of Section 5 of P.D. 1886 entices the unsuspecting private respondents
to testify before the FFB, by dangling in the same Section 5 the assurance that their
testimony or the evidence given by them will not be used against them in a criminal
prosecution that may be instituted against them.
At the very least, their consent to testify was under such misapprehension. Hence, there
can be no clear, categorical, knowing and intelligent waiver of the right to remain silent,
against self-incrimination, against being held to answer for a criminal offense without due
process of law, and against being deprived of life, liberty or property without due process
of law under such misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is accentuated by the
difference of opinion thereon among the counsels in these cases and among members of
this Court. And it is basic in criminal law that doubts should be resolved liberally in favor
of the accused and strictly against the government.
The procedural due process both under Sections 1 and 17 of the Bill of Rights, Article IV
of the 1973 Constitution, simply means, in the language of Justice Frankfurter, the
sporting Idea of fair play. The FFB and its counsel did not inform the private respondents
herein of their right to remain silent and their right against self-incrimination, and that their
testimonies may be utilized against them in a court of law, before they testified. This is
not fair to them, and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for the purpose of
gathering all the possible facts that may lead to the Identity of the culprit. Such
testimonies may provide leads for the FFB, its counsels and agents to follow up. The
FFB and its counsels cannot rely solely on such testimonies to be used against the
private respondents in these criminal cases. It should be recalled that the FFB had ample
funds for the purpose of accomplishing its object. As a matter of fact. it refunded several
million pesos to the government after it concluded its investigation. The Board and its
counsel could have utilized the said amount to appoint additional agents to look for
witnesses to the assassination. In this respect, the FFB counsel could be faulted in not
utilizing the funds appropriated for them to ferret out all evidence that will Identify the
culprit or culprits. The failure of the FFB's counsel to use said funds reflects on the
initiative and resourcefulness of its counsel. He could prosecute private respondents on
evidence other than their testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were compelled to testify before the FFB
whether by subpoena or by invitation which has the effect of a subpoena as provided for
in Section 5 of P.D. 1886; because private respondents then believed, by reading the
entire Section 5, that the testimony they gave before the FFB could not be used against
them in the criminal cases subsequently filed before the Sandiganbayan. Because the
Board was merely a fact-finding board and that it was riot conducting a criminal
prosecution the private respondents were under the impression that there was no need
for them to invoke their rights to remain silent, against self-incrimination and against
being held for a criminal offense without due process of law.
It should be recalled that the counsel of the FFB after submitting the majority report,
refused to cooperate with the Tanodbayan in these cases with the pompous declaration
that, after submitting their majority report, he automatically became functus oficio. Was
his refusal to cooperate with, and assist, the Tanodbayan in the prosecution of these
cases, born of the realization that the FFB majority report is as weak as it was
precipitate? And when the Tanodbayan has now his back to the wall, as it were, by the
ruling of the respondent Sandiganbayan excluding the testimonies and other evidence of
private respondents herein on the ground that the use of their testimonies and other
evidence will incriminate them, the FFB counsel, without being requested by the
Tanodbayan, now files a memorandum in support of the position of the Tanodbayan.
what is the reason for this turn-about to save his report from the fire which they started
with such enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting authorities to
respect their rights under the Constitution as we stated in the recent Hildawa and
Valmonte cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be meaningless if we follow
the posture of petitioners herein. Such a posture would be correct if the phrase "after
having invoked his privilege against self- incrimination" were transposed as the opening
clause of Section 5 to read a follows "After having invoked his privilege against self-
incrimination, no person shall be excused from attending and testifying ... etc."
Said Section 5 has two clauses and contemplates two proceedings. The first clause from
"No person shall be excused ... etc." up to "penalty or forfeiture refers to the proceeding
before the FFB. The second clause after the semi-colon following the word "forfeiture
which begins with but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter, or thing concerning which he is
compelled, after having invoked his privilege against self-incrimination to testify . refers to
a subsequent criminal proceeding against him which second clause guarantees him
against the use of his testimony in such criminal prosecution, but does not immunize him
from such prosecution based on other evidence.
The private respondents herein, if the contention of the prosecution were sustained,
would be fried in their own fat. Consequently, the petition should be dismissed.
CONCEPCION, JR., J., concurring:
1. Let me preface my opinion by quoting from my dissent in Pimentel. 1
1. We are committed to the mandate of the Rule of Law. We resolve
controversies before Us without considering what is or what might be
the popular decision. No. We never do. We only consider the facts and
the law. Always the facts and the law.
2. The issue before Us is not I repeat not the guilt or innocence of Gen.
Fabian C. Ver, Major Gen. Prospero Olivas, and others for their
alleged participation in the assassination of former Senator Benigno S.
Aquino, Jr.
3. The issue is: Are the testimonies given by them before the Agrava
Board admissible in evidence against them in their trial before the
Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the
interpretation of Sec. 5, P.D. No. 1886 and calls for the application of
the Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other
 evidence in obedience to a subpoena issued by the Board on the
ground that his testimony or the evidence required of him may tend to
incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in
connection with any transaction, matter or thing concerning which he is
compelled. after having invoked his privilege against self-incrimination,
to testify or produce evidence, except that such individual so testifying
shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or
removal from office.
6. This section means that any person who is invited or summoned to appear must obey
and testify as to what he knows. Even if the testimony tends to incriminate him he must
testify. Even if he claims his constitutional right against self-incrimination, he still must
testify. However, his testimony cannot be used against him in any subsequent
proceeding, provided that at the time it is being presented, he invokes his privilege
against self-incrimination. His testimony, no matter what it may be, cannot in any way
cause him harm.
The only exception is if the testimony he gave is false, in which case he can be
prosecuted and punished for perjury. He may also be demoted or removed from office.
7. The testimonies given by private respondents before the Agrava Board are therefore
not admissible against them in their trial before the Sandiganbayan, having invoked their
privilege against self-incrimination.
PLANA, J., concurring:
I would like to underscore some considerations underlying my concurrence:
1. According to the Constitution, no person shall be compelled to be a witness against
himself. But the law (PD 1886) which created the Agrava Board decrees that no person
shall be excused from testifying on the ground of self- incrimination. If the law had
stopped after this command, it would have been plainly at variance with the Constitution
and void. lt was to ward off such a Constitutional infirmity that the law provided for
immunity against the use of coerced testimony or other evidence, an immunity which, to
be constitutionally adequate, must give at least the same measure of protection as the
fundamental guarantee against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or expand the
constitutional guarantee against self-incrimination. On the one hand, a law cannot restrict
a constitutional provision. On the other hand, PD 1886 was adopted precisely to coerce
the production of evidence that hopefully would unmask the killers of Senator Aquino,
although the compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self- incrimination must have been invoked before the
Agrava Board if the use of evidence given therein against the witness in a subsequent
criminal prosecution is to be barred. I did not agree.
I fail to see why to preserve pursuant to law (PD 1886) one's constitutional right against
self-incrimination, one has to offer resistance to giving testimony a resistance which the
said law itself says is futile and cannot prevail, as no witness by its specific injunction can
refuse to testify.
4. The constitutional right against self-incrimination may be waived expressly. It may also
be waived impliedly by speaking when one has the option to hold his tongue. Waiver by
implication presupposes the existence of the right to keep silent. Thus, when one speaks
because the law orders him to do so, his action is not really voluntary and therefore his
testimony should not be deemed an implied waiver of his constitutional right against self-
incrimination.
5. Presidential Decree 1886 does not give private respondents absolute immunity from
prosecution, It only bars the use against them of the evidence that was elicited from them
by the Agrava Board. If there are other evidence available, private respondents are
subject to indictment and conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my view, completedly
immunized. What PD 1886 bars from use is only the testimony of the witness who
testified before the Agrava Board and whatever was presented as part of his testimony,
as such. PD 1886 could not have intended to convert non-confidential official documents
into shielded public records that cannot be used as evidence against private
respondents, by the mere fact that they were admitted in evidence as part of private
respondents' testimony before the Agrava Board. In other words, evidence otherwise
available to the prosecution, such as official documents, do not become barred just
because they have been referred to in the course of the testimony of private respondents
and admitted in evidence as part of their testimony They may still be subpoenaed and
offered in evidence. Conceivably, some objections might be raised; but the evidence will
be unfettered by the exclusionary rule in PD 1886.
ESCOLIN, J., concurring:
I concur in the dismissal of the petitions. The admission in evidence of the testimonies of
private respondents given before the Agrava Board would constitute a violation of their
right against self- incrimination guaranteed under Section 20, Article IV of the
Constitution. I subscribe to the majority view that Section 5 of P.D. 1886 cannot be
constitutionally tenable, unless a grant of immunity is read into it vis-a-vis the compulsion
it imposes upon a witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be
interpreted as an immunity statute, which, while depriving one of the right to remain
silent, provides an immunity from prosecution that is as co-extensive, as total and as
absolute as the guarantees themselves. (Jones Law on Evidence, Chapter XVIII, Section
863, pp. 1621-1623, Kastigar v. U.S., 1972, 406 US 441).
Clearly, this is how the private respondents understood the legal provision under
consideration. For ably assisted as they were by counsel, they would not have allowed
themselves to be deliberately dragged into what the Chief Justice would call a "booby
trap". Viewed from another angle, therefore, it could not be truly said that private
respondents had waived their right against self- incrimination in a manner that is clear,
categorical, knowing and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol
v. Homeres, 84 Phil. 525 and Chavez v. CA, 24 SCRA 663).
GUTIERREZ, JR., J., concurring:
I concur in the majority opinion penned by Justice Serafin R. Cuevas and in the pithy
separate opinion of Justice Nestor B. Alampay but would like to add some personal
observations.
This case furnishes an opportunity to appreciate the workings of our criminal justice
system.
The prosecutions which led to this petition serve as a timely reminder that all of us-
civilian or military, layman or judge, powerful or helpless- need the Bill of Rights. And
should the time ever come when like the respondents we may have to invoke the
Constitution's protection, the guarantees of basic rights must be readily available, in their
full strength and pristine glory, unaffected by what is currently popular or decreed and
heedless of whoever may be involved
In many petitions filed with this Court and lower courts, the military has often been
charged with riding roughshod over the basic rights of citizens. Officers and enlisted men
in the frontlines of the fight against subversion or rebellion may, in the heat of combat,
see no need to be concerned over such ,niceties" as due process, unreasonable
searches and seizures, freedom of expression, and right to counsel. They are best
reminded that these rights are not luxuries to be discarded in times of crisis. These rights
are the bedrock of a free and civilized society. They are the reason why we fight so hard
to preserve our system of government. And as earlier stated, there may come times
when we may have to personally invoke these basic freedoms for ourselves. When we
deny a right to an accused, we deny it to ourselves.
The decision of the Court underscores the importance of keeping inviolate the
protections given by the Bill of Rights. Acts which erode or sacrifice constitutional rights
under seductive claims of preserving or enhancing political and economic stability must
be resisted. Any lessening of freedom will not at all increase stability. The liberties of
individuals cannot be preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand and subversion or
rebellion on the other may be difficult to pinpoint during troubled times. The lesson of this
petition is that those charged with suppressing the rebellion and those who sit in courts of
justice should ever be vigilant in not lumping legitimate dissenters and rebels together in
one indiscriminate classification.
An abiding concern for principles of liberty and justice is especially imperative in periods
of crisis and in times of transition. And all persons from the mighty to the lowy must be
given the fullest measure of protection under the Bill of Rights if our constitutional
guarantees are to have any meaning.
In addition to the right against self- incrimination, of not being compelled to be a witness
against one's self, so ably discussed by Justice Cuevas in the Court's opinion, I am
constrained by considerations of basic fairness to vote against granting the petition.
The private respondents were called to testify before the Agrava Commission. The
decree creating the commission stated that no person may refuse to attend and testify or
to produce evidence before it on the ground that what he says or produces may
incriminate him. But since the witness is compelled to give all he knows or possesses in
effect shorn by law of his right not to incriminate himself the decree states that the
evidence wrung from that witness may not be used against him later. This is, simply
speaking, what the petition is all about.
The respondents may be prosecuted as indeed they have been prosecuted. They may
eventually be convicted if the evidence warrants conviction. however, they may not be
convicted solely on the evidence which came from their own mouths or was produced by
their own hands. The evidence must come from other sources. It would be the height of
unfairness and contrary to due process if a man is required to state what he knows even
if it would incriminate him, is promised immunity if he talks freely, and is later convicted
solely on the testimony he gave under such a promise of immunity.
I believe that P.D. 1886 is the first Immunity Act to be enacted in the Philippines. It may
be relevant, therefore, to refer to American decisions expounding on immunity statutes,
more so when a comparison of P.D. 1886 with such statutes as the U.S. Immunity Act of
1954, 68 Stat. 745, 18 U.S.C.A. Section 3486, shows a similarity in the protection given
by the statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in their
investigatins of attempts to endanger the national security or defense of the United
States by treason, sabotage, espionage, sedition, seditious conspiracy, and violations of
various laws on internal security, atomic or nuclear energy, and immigration and
nationality. The law stated that a witness shall not be excused from testifying or from
producing books, papers, or other evidence on the ground that it may tend to incriminate
him or subject him to a penalty or forfeiture. The statute then provides:
But no such witness shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter, or thing
concerning which he is compelled, after having claimed his privilege
against self- incrimination, to testify or produce evidence nor shall
testimony so compelled be used as evidence in any criminal
proceeding ... against him in any court.
The American statute provides immunity against prosecution, penalties, and use of the
testimony. P.D. 1886 is of more limited scope. Only the use of the compelled testimony is
proscribed. The witness may still be prosecuted but the prosecution will have to look for
evidence other than the words of the accused given before the Agrava Commission.
In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted with the
validity of the 1893 Immunity Act. Brown was subpoenaed to testify before a grand jury
investigating railroad anomalies. lie refused to testify on grounds of self- incrimination,
arguing that the Immunity Act compelling him to testify was unconstitutional. The Court
ruled that "(W)hile the constitutional provision in question is justly regarded as one of the
most valuable prerogatives of the citizen, its object is fully accomplished by the statutory
immunity and we are therefore of opinion that the witness was compellable to answer." In
other words, the statutory immunity takes the place of the invocation of the constitutional
guarantee. There is no need at the time of taking testimony to invoke the Fifth
Amendment because it would be denied any way and the witness would be compelled to
testify. It would be absurd to invoke a protection which cannot be availed of when
compelled to testify. The time to invoke the immunity is when the testimony is being used
contrary to the granted immunity. Protected by the statutory immunity, a witness cannot
even insist on his right to remain silent when testifying.
In Ullmann v. United States (350 U.S. 422), the court interpreted the Immunity Act of
1954 and stated.
xxx xxx xxx
... Since that time the Court's holding in Brown v. Walker has never
been challenged; the case and the doctrine it announced have
consistently and without question been treated as definitive by this
Court, in opinions written, among others, by Holmes and Brandeis,
Justices. See, e.g., McCarthy v. Arndstein 226 U.S. 34, 42; Heike v.
United States, 227 U.S. 131, 142. The 1893 statute has become part
of our constitutional fabric and has been included in substantially the
same terms, in virtually all of the major regulatory enactments of the
Federal Government.' Shapiro v. United States, 335 U.S. 1, 6. For a
partial list of these statutes, see, Id., 335 U.S. at pages 6-7, note 4.
Moreover, the States, with one exception a case decided prior to
Brown v. Walker have, under their own constitutions, enunciated the
same doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed
numerous statutes compelling testimony in exchange for immunity in
the form either of complete amnesty or of prohibition of the use of the
compelled testimony. For a list of such statutes, see 8 Wigmore,
Evidence (3d ed.), 2281, n. 11 (pp. 478-501) and Pocket Supplement
thereto, 2281, n. 11 (pp. 147-157). (Emphasis supplied)
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann treated the immunity
not only against the use of the testimony (as under P.D. 1886) but even against
prosecution.
xxx xxx xxx
Petitioner, however, attempts to distinguish Brown v. Walker. He
argues that this case is different from Brown v. Walker because the
impact of the disabilities imposed by federal and state authorities and
the public in general such as loss of job, expulsion from labor unions,
state registration and investigation statutes, passport eligibility and
general public opprobrium-is so oppressive that the statute does not
give him true immunity. This, he alleges, is significantly different from
the impact of testifying on the auditor in Brown v. Walker, who could
the next day resume his job with reputation unaffected. But, as this
Court has often held, the immunity granted need only remove those
sanctions which generate the fear justifying the invocation of the
privilege 'The interdiction of the other Amendment operates only here a
 witness may possibly expose him to a criminal charge. But if the
criminality has already been taken away, the amendment ceased to
apply.' Hale v. Henkel 201 U.S. 43, 67. Here, since the Immunity Act
protects a witness who is compelled to answer to the extent of his
constitutional immunity, he has of course, when a particular sanction is
sought to be imposed against him, the right to claim that it is criminal in
nature. (Emphasis supplied).
In United States v. Murdock (284 U.S. 141), the court ruled that "the principle established
is that full and complete immunity against prosecution by the government compelling the
witness to answer is equivalent to the protection furnished by the rule against compulsory
self-incrimination.
P.D. 1886, being an immunity statute should not be given a strained or absurd
interpretation in order to achieve a certain result. If the immunity given by the decree is
equivalent to the protection furnished by the right against self- incrimination, then,
paraphrasing Justice Frankfurter in Ullmann, the same protection given by one of the
great landmarks in man's struggle to make himself civilized must not be interpreted in a
hostile or niggardly spirit,
xxx xxx xxx
... Too many, even those who should be better advised, view this
privilege as a shelter for wrongdoers. They too readily assume that
those who invoke it are either guilty of crime or commit perjury in
claiming the privilege. Such a view does scant honor to the patriots
who sponsored the Bill of Rights as a condition to acceptance of the
Constitution by the ratifying States. The Founders of the Nation were
not naive or disregard ful of the interest of justice ...
I, therefore, join the majority in dismissing the petition.
DE LA FUENTE, J., concurring:
No person shall be compelled to be a witness against himself." 1 This
basic right against self- incrimination, which supplanted the inquisitorial
methods of interrogating the accused as practiced during the Spanish
regime, has become an indispensable part of our laws since 1900.
Pursuant thereto, an accused in a criminal case has the right not only
to refuse to answer incriminating questions but also to refuse to take
the witness stand. He cannot be compelled even to utter a word in his
defense. 2 As stressed in Chavez vs. Court of Appeals, 3 the rule may
otherwise be stated as the constitutional right of the accused to remain
silent. " The accused can forego testimony 4 without any adverse
implication drawn from his decision to do so, The burden is on the
State to establish the guilt of the accused beyond reasonable doubt;
the prosecution must look elsewhere for other "evidence independently
and freely secured," The rule forbids what has been considered as "the
certainly inhuman procedure of compelling a person 'to furnish the
missing evidence necessary for his conviction'." According to Justice
Harlan, it was intended "to shield the guilty and imprudent as well as
the innocent and foresighted." 5 Transplanted in this country with the
advent of American sovereignty 6and firmly imbedded in our
fundamental law, 7 the said privilege against compulsory self-
incrimination, which is predicated on grounds of public policy and
humanity, 8 "is fundamental to our scheme of justice" 9 and is one of
the procedural guarantees of our accusatorial system.
1. As I see it, what the prosecution proposed to do in these cases was to present, as
evidence of the alleged accessorial acts of private respondents, the transcripts of their
respective testimonies before the Agrava Board. Confronted by the apparent
unwillingness of said respondents to be called to the witness stand in subsequent
criminal proceedings, the prosecution sought to put into the record of these criminal
cases (in lieu of private respondents' testimonies) the said transcripts and other evidence
given by them in the course of their testimony before the Agrava Board. If allowed over
and despite private respondents' objection, this would be a clear infringement of the
constitutional guarantee that they can invoke in said criminal proceedings, as all of them
did. Since the prosecution cannot require said respondents to testify in the criminal cases
before the Sandiganbayan, it stands to reason that it is equally disabled from indirectly
compelling respondents to give evidence against themselves by using their Agrava
Board testimonies. The prosecution must present evidence "derived from a legitimate
source wholly independent of the compelled testimony." 10
2. It is contended, however, that these self- incriminatory testimonies were given
voluntarily because they did not claim the constitutional guarantee before or while giving
testimony to the Agrava Board. Voluntariness, I think. cannot be inferred simply from
such failure to invoke the privilege. There was no fair warning or notice to the declarant
that his testimony would be used against him if incriminatory, unless the privilege is
invoked beforehand or during his testimony. If they were properly warned and still gave
testimony without t invoking the privilege, then it would be clear that they knowingly
waived the privilege. Otherwise, it meant at the most a willingness on their part to help
the Agrava Board in its fact-finding investigation without waiving (a) the immunity granted
by law, and (b) the constitutional guarantee against self- incrimination in case of
subsequent prosecution based on their self-incriminatory testimony. For waiver, it is
wellsettled, to be effective. "must be certain, unequivocal and intelligently,
understandably and willingly made. " 11 Mere submission to an illegal search or seizure
"is not consent or waiver of objection. 12 The prosecution has the burden to prove
otherwise. The same standard should be observed in self-incrimination cases.
PD No. 1886 (as amended), which created that "independent ad hoc fact-finding Board,"
vested it with "plenary powers to determine the facts and circumstances surrounding the
killing [of former Senator Aquino] and to allow for a free, unlimited and exhaustive
investigation into all aspects of said tragedy." In consonance with these objectives, the
law declared that the privilege was unavailable to an Agrava Board "witness", as follows:
"No person shall be excused from attending and testifying or from producing other
evidence on the ground that his testimony or any evidence requested of him may tend to
incriminate him, " 13 etc. At the same time, the Board was empowered to summarily hold
and punish any person in direct contempt for "refusal to be sworn or to answer as a
witness," its judgment being "final and unappealable."
Quite plainly, the constitutional right against compulsory self-incrimination could not be
invoked by Agrava Board witnesses, The privilege was suspended or temporarily taken
away for purposes of the investigation, in order that the Board would have access to all
relevant evidence and all sources of information, not excluding compelled incriminatory
statements of probable and possible or potential defendants. An Agrava Board witness
was, under the terms of the quoted provision, placed in a dilemma: (1) to answer
truthfully all questions including those tending to be self-incriminatory, since he cannot
invoke the privilege; (2) to lie and become liable criminally for perjury; and (3) to insist on
his right to remain silent and be summarily punished by the Board for direct contempt. It
is plain that such a witness was under compulsion to give self-incriminatory testimony. It
was not voluntary. Precisely because of its coerced nature (an infringement of his
constitutional right against self- incrimination), PD No. 1886 promised. in exchange or as
a substitute for the privilege, limited immunity (as provided in the next succeeding clause,
same section), to wit:
... but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing
concerning which he was compelled, after having invoked his privilege
against self- incrimination, to testify or produce evidence. 14
Such immunity 15 would bar the prosecution's use against the witness of his said
testimony in subsequent criminal proceedings (wherein he is charged with offenses
related to his testimony). Nevertheless, this would not operate to change the involuntary
nature of his self- incriminatory testimony. As far as the witness is concerned, it was
"coerced", not freely given, because he was not fully accorded the "liberty of choice." The
law withheld his basic freedom to choose between testifying and remaining silent without
the risk of being punished for direct contempt to forego testimony which could possibly
be to his detriment.
3. I cannot agree with the proposition that the privilege should be invoked by the witness
before or while giving testimony to the Agrava Board. Section 5 should be reasonably
construed and fairly applied to the cases at bar, in the light of the accused's constitutional
right against compulsory self- incrimination. The formula of limited-immunity in-lieu-of-
the-privilege contained in said section rendered unnecessary or superfluous, the
invocation of the privilege before the Board. Under said formula, the witness was
deprived of the privilege to protect himself against inquisitorial interrogation into matters
that a targeted defendant or virtual respondent can keep to himself in ordinary
investigations or proceedings.
Even if the provision is susceptible of an interpretation in support of the petitioner's stand,
it appears that the time for invoking the privilege is not clear enough or certain from the
language of the law. Equally plausible and logical is the contrary view that it may be
invoked later on when it became apparent that the prosecution intended to use the
testimony given before the Board to secure conviction of the declarant in the subsequent
criminal proceedings. The privilege cannot be deemed waived by implication merely as a
consequence of failure to claim it before the Board. It bears emphasis that the right of an
accused "witnesses" against compulsory self-incrimination is predicated on the
constitutional guarantee, not on the special law in question.
3. In the United States, the generally accepted approach in Fifth Amendment Cases
(involving the constitutional guarantee under consideration) was stated as follows
in Johnson vs Zerbst:" 16 It has been pointed out that 'courts indulge in every reasonable
presumption against a waiver of the fundamental rights and that we do not presume
acquiescence in the loss of such fundamental rights.'" Because, as Dean Griswold of
Harvard Law School (later, Solicitor General of the United States) eloquently puts it:
[T]he privilege against self-incrimination is one of the great landmark,s
in man's struggles to make himself civilized ... [W]e do not make even
the most hardened criminal sign his own death warrant, or dig his own
grave ... We have through the course of history developed a
considerable feeling of the dignity and intrinsic importance of the
individual man. Even the evil man is a human being. 17
In this jurisdiction, more than four decades ago, the late Justice Jose P. Laurela
nationalist, constitutionalist and eminent jurist, whose incisive and authoritative opinions
on constitutional questions are often cited by the bench and the bar- voted to sustain a
claim of the constitutional guarantee in Bermudez vs. Castillo. 18 In his concurrence, he
said inter alia:
(1) As between two possible and equally rational constructions, that
should prevail which is more in consonance with the purpose intended
to be carried out by the Constitution. The provision ... should be
construed with the utmost liberality in favor of the right of the individual
intended to be secured. ...
(2) I am averse to the enlargement of the rule allegedly calculated to
gauge more fully the credibility of a witness if the witness would
thereby be forced to furnish the means for his own destruction. Unless
the evidence is voluntarily given, the policy of the constitution is one of
protection on humanitarian considerations and grounds of public
policy...
(3) The privilege should not be disregarded merely because it often
affords a shelter to the guilty and may prevent the disclosure of
wrongdoing. Courts can not, under the guise of protecting the public
interest and furthering the ends of justice, treat a sacred privilege as if
it were mere excrescence in the Constitution. (Emphasis supplied; at
page 493.)
In sum, considering the pertinent legal provisions and judicial pronouncements as well as
the climate prevailing when the private respondents testified before the Agrava Board, I
find it unavoidable to reach the conclusion that they did so under legal, moral and
psychological compulsion. Their compelled testimonies before the Agrava Board cannot
thereafter be used against them in the cases at bar in view of the immunity granted by
P.D. No. 1886. They were not obliged to invoke then and there the constitutional
guarantee. If they did, that would have sufficed to afford them adequate protection. If
they did not, they could do so later on when the Government prosecutors (in spite of the
statutory grant of immunity) decided in the subsequent criminal proceedings, to use
against them their Agrava Board testimonies. For, as earlier stated, there was no
intelligent and knowing waiver on their part of their constitutional right against self-
incrimination.
Accordingly, and for other reasons well stated in the main separate concurring opinions, I
vote to dismiss the petitions.
ALAMPAY, J., concurring:
I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the consideration of the Court
is addressed to is the singular question of whether testimonies adduced by the private
respondents before the Ad Hoc Agrava Fact Finding Board and sought to be introduced
against them in the Sandiganbayan wherein they have been accused were rightfully
excluded as evidence against them.
I find untenable the insistence of the petitioner Tanodbayan that the private respondents
should have claimed the right against self-incrimination before the said Fact Finding
Board and that having omitted doing so, the said privilege afforded to them by law can no
longer be invoked by them before the Sandiganbayan.
The right claimed by private respondents rests on the fundamental principle that no
person shall be compelled to be a witness against himself as so stated in our
Constitution and from the fact that Section 5 of P.D. 1886 disallows the use against him
of such testimony or any evidence produced by him before the said Fact Finding Board,
except for perjury. Petitioner argues however, that there was a waiver of this right to self-
incrimination when respondents proceeded to give their testimonies on various dates
before the Agrava Fact Finding Board without formally invoking on said occasions their
right against self-incrimination.
As private respondents could not have excused themselves from testifying before said
Board as clearly emphasized in the very first clause of Section 5 of P.D. 1886, and as at
that point of time, there was no reason for the declarant to anticipate or speculate that
there would be any criminal charge or any proceeding instituted against them, it would
therefore, be unnatural and illogical to expect that private respondents would even
contemplate the need of prefacing their declarations with an invocation before the Fact
Finding Board of their privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated privilege prior to or while
testifying before said Fact Finding Board, would irresistibly create an inference and
convey an impression that said witness is burdened with his own awareness that he
stands already incriminated in some wrong. To insist therefore, even in the absence yet
of any proceeding against him, that the witness invoke the said privilege before the
Agrava Fact Finding Board, would be obviously self-demeaning. Such an effect could not
have been intended by Section 5 of P.D. 1886, which was even meant to grant to the
witness a benefit rather than a burden. It is more reasonable therefore, to conclude that
the privilege against self-incrimination would be accorded to said witness after he has
invoked the same in a subsequent proceeding wherein he has been charged of a wrong
doing, except in a case for perjury. It is only at such time when the necessity of invoking
the mantle of the privilege or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had intentionally
relinquished or abandoned the said right which they claimed before the Sandiganbayan.
The fact that the issue of when and before what forum should such claim to the right
against self-incrimination be necessarily presented has provoked much discussion and
debate because of divergent views. This has even prompted the submissions to the
Court of opinions of amicus curiae or friends of the court as to how Section 5 of
Presidential Decree 1886 should be construed and applied which are however different
from and contrary to the views expressed by the Justices of the Sandiganbayan and
other legal luminaries. These conflicting views negate the proposition that there was an
effective waiver made by the private respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver must be certain
and unequivocal and intelligently, understandably and willingly made. (Chavez vs. Court
of Appeals, et al., 24 SCRA 663). In the same cited case, it has been stated that courts
indulge in every reasonable presumption against waiver of fundamental constitutional
rights and that we do not presume acquiescence in the loss of fundamental rights (Citing
Johnson vs. Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the
alleged waiver is express or implied, it must be intentional. (Davison vs. Klaess 20 N.E.
2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time, ever intended to
relinquish or abandon their right against self-incrimination.
PATAJO, J., concurring:
I vote for the dismissal of the petition in these consolidated cases. Said petitions do not
merit being given due course and should be dismissed outright.
I hold the view that the testimonies and evidence given before the Agrava Board are
inadmissible as evidence against those who testified or gave said evidence irrespective
of whether said persons were subpoenaed or invited. I believe it is not a condition sine
quo non to the non-admissibility of said evidence that at the time they testified or gave
evidence before the Agrava Board that they had invoked their privilege against self-
incrimination.
The Agrava Board was created as an independent ad hoc fact finding board to determine
all the facts and circumstances surrounding the assassination of former Senator Benigno
S. Aquino, Jr. on August 21, 1983. It was given plenary powers to allow for a free,
unlimited and exhaustive investigation into all the aspects of said tragedy. It was given
the power to issue subpoena or subpoena duces tecum and "other compulsory
processes" requiring the attendance and testimony of witnesses and the production of
any evidence relative to any matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce any documentary
evidence before the Board shall not be excused from testifying or presenting evidence
before said Board on the ground that their testimony or evidence may tend to incriminate
them or subject them to penalty or forfeiture. I believe an invitation from the Board is as
much a compulsory process 1 to appear and testify before the Board as a subpoena and
one receiving said invitation cannot also excuse himself from appearing and testifying
before the Board. Petitioners appear to share this view when they said in subparagraph
(c), paragraph 7 of their petition in G.R. No. L-71208-09.
(c) People were either invited or issued subpoenas, depending upon
their rank and office, to give testimony before the Board and among
those invited were respondents General Fabian C. Ver and Major
General Olivas while the rest of the military respondents were issued
subpoenas.
Unquestionably, it was the intention of the decree creating the Board to investigate the
Aquino assassination to encourage all who have some information on any "aspect of said
tragedy" to furnish the Board said information whether they are subpoenaed or issued
other forms of compulsory process such as an invitation and to do so without fear that
what they will say may be used against them. It is in this context that Section 5 of PD No.
1886 should be viewed. When they testified before the Board, they were given full
assurance that whatever they say before the Board will not be used against them. Only if
they testify falsely that they may be prosecuted for perjury. This is to prevent people from
preventing the Board from finding out the truth about the Aquino assassination by giving
false leads or information for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes which do not
pronounce an entire immunity by forbidding punishment or prosecution for any testimony
or evidence given in connection with the investigation of certain offenses more widely
known as immunity statutes, but merely prohibit in any criminal prosecution the use of
the testimony of the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients resorted for
the investigation of many offenses, chiefly those whose proof or punishment were
otherwise impracticable because of the implication in the offense itself of all who could
bear useful testimony.
The expediency and practical utility of this mode of obtaining evidence
may as a measure of legislation, be open to argument. But the tradition
of it as a lawful method of annulling the privilege against self-
incrimination is unquestioned in English history." ignore on Evidence,
Vol. III, p. 469.
Speaking of this kind of privilege of non-admission of testimony given by the witness in
subsequent prosecutions as allowed by the common law and modified by subsequent
statutes, State vs. Quarles 13 Ark 307, 311, said:
The privilege in question, in its greatest scope, as allowed by the
common law and no one, be he witness or accused, can pretend to
claim it beyond its scope at the common law never did contemplate
that the witness might not be proved guilty of the very crime about
which he may be called to testify; but only that the witness should not
be compelled to produce the evidence to prove himself guilty of that
crime. His privilege, therefore, was not an exemption from the
consequences of a crime that he might have committed; but only an
exemption from the necessity of himself producing the evidence to
establish his own crime ... So long as it might be lawful to produce in
evidence against an accused party whatever he might before have
voluntarily said as a witness on a prosecution against another, there
were no means by which the privilege could be made available short of
a claim by the witness to be silent; and as that was the rule of the
common law, this was the common-law mode of making the privilege
available. And that silence was but a mode of making the privilege
available, and was not of the essence of the privilege itself, is
conclusively proven by all that current of enlightened authority, to
which we yield our fullest assent, which holds that the privilege has
ceased when the crime has been pardoned, when the witness has
been tried and acquitted, or is adjudged guilty, or when the
prosecution, to which he was exposed, has been barred by lapse of
time ... But the Legislature has so changed the common-law rule, by
the enactment in question in the substitution of a rule that the
testimony required to be given by the act, shall never be used against
 the witness for the purpose of procuring his conviction for the crime or
misdemeanor to which it relates, that it is no longer necessary for him
to claim his privilege as to such testimony, in order to prevent its being
afterwards used against him. And the only question that can possibly
arise under the present state of the law, as applicable to the case now
before us, is as to whether our statutory regulations afford sufficient
protection to the witness, responsive to this new rule and to his
constitutional guarantee against compulsory self-accusation ...
Considering the objectives sought to be achieved by PD No. 1886 the provision thereof
making testimony and evidence given before the Board inadmissible in evidence against
the ones giving the same, provides protection beyond that granted by the Constitutional
provision against self- incrimination, otherwise it will be constitutionally
suspect. Counselman vs. Hitchcock, 142 US 547, 35 L Ed 1110.
Of relevance are the observations of the District Court, N.D. Illinois, in United States vs.
Armour & Co., 112 Fed 808, 821, 822:
All of these immunity acts are relied upon by the individual defendants,
and, while expressed in, slightly varying language, they all mean the
same thing, and each of them is a substitute for the privilege contained
in that clause of the fifth amendment to the Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a witness against himself.'
This fifth amendment deals with one of the most cherished rights of the
American citizen, and has been construed by the courts to mean that
the witness shall have the right to remain silent when questioned upon
any subject where the answer would tend to incriminate him. Congress
by the immunity laws in question, and by each of them, has taken
away the privilege contained in the amended it is conceded in
argument that this cannot be done without giving to the citizen by way
of immunity something as broad and valuable as the privilege thus
destroyed We are not without authority on this question. By a previous
act, Congress undertook to take away the constitutional privilege by
giving the citizen an equivalent, and the Supreme Court held in the
case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct. 195, 35 I
Ed., 1110, that the substitution so given was not an equivalent. Then,
at various times, the immunity acts in question were passed by
Congress with full knowledge that in furnishing a substitute for this
great right of the citizen, it must give something as broad as the
privilege taken away. It might be broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege
given by the fifth amendment, which the act was intended to substitute.
The privilege of the amendment permits a refusal to answer. The act
wipes out the offense about which the witness might have refused to
answer. The privilege permits a refusal only as to incriminating
evidence. The act gives immunity for evidence of or concerning the
matter covered by the incident and the evidence need not be self-
incriminating. The privilege must be personally claimed by the witness
at the time. The immunity flows to the witness by action of law and
without any claim on his part. Brown v. Walker, 161 U.S. 591, 16 Sup.
Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26 Sup. Ct.
370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S. 567,
12 Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E.
319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v.
Boyden, 160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St.
Foundry, 201 I11. 236, 248, 66 N.E. 349.
I am further of opinion that the immunity given by the act must be as
broad as the liabilities imposed by the act. The act calls upon the
citizen to answer any 'lawful requirement' of the Commissioner.
'Require' means to ask of right and by authority. Webster's Dictionary.
Tenn. Coal Co. v. Saller (C.C.) 37 Fed. 545, 547. Anything is a
requirement by a public officer which brings home to the person called
upon that the officer is there officially and desires compliance.
'Demand' and' require' are synonymous. Miller v. Davis, 88 Me. 454,
34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the
duty of the witness to obey.
The contention has been made that in order to get immunity the citizen
shall wait until the compulsion becomes irresistible. That is the effect of
the government contention. I am not able to bring my mind to accept
that doctrine. If I am right in saying that immunity flows from the law l,
without any claim on the part of the defendant and at different times
that has been conceded here in argument then no act of any kind on
his part which amounts to a claim of immunity, which amounts to
setting up a claim of immunity is demanded by the law. The law never
puts a premium on contumacy. A person does not become a favored
citizen by resistance to a lawful requirement. On the contrary, the
policy of the law favors the willing giving of evidence whenever an
officer entitled to make a demand makes it upon a citizen who has no
right to refuse. And it would be absurd and un-American to favor the
citizen who resists and places obstacles in the way of the government
as against the citizen who, with a full knowledge of the law, obeys
without resistance the demand of an officer who has the legal right to
make the demand for something which the citizen has no legal right to
refuse. This, then, is the proposition to which we are led. When an
officer, who has a legal right to make a demand, makes such demand
upon a citizen who has no legal light to refuse, and that citizen
answers under such conditions, he answers under compulsion of the
law.
There is no merit then to the contention that private respondents should be invoked the
privilege against self-incrimination before the Agrava Board for precisely PD No. 1886
had explicitly provided that the testimony of those who testified before the Board can not
be used against them. It will be a meaningless act of supererogation to require that said
witnesses before answering any question addressed to them must invoke their privilege
against self-incrimination. The phrase "after having invoked his privilege against self-
incrimination" in Section 5 of PD No. 1886 to be consistent with the intention of said
decree, should refer to the time that the testimony of the witness will be used against him
in another proceeding, such as the cases now pending before the Sandiganbayan. It
could not refer to the proceedings before the Agrava Board because no one is being
accused before said Board and no matter how self-incriminating the testimony of said
witness is, he runs no risk of being prejudiced, much less convicted by the Agrava Board.
It is in the prosecution of cases based on the report of said Board that the witness should
invoke his right against self-incrimination. These private respondents did just that when
they moved for the exclusion in evidence of their statement before the Agrava Board.
Any other interpretation would defeat the very purpose of PD No. 1886.
TEEHANKEE, J., dissenting:
The majority decision is based on erroneous premises, viz. what the case at bar presents
a "novel question;" that "this Court has not been previously called upon to rule on issues
involving immunity statute" and is burdened with the monumental task" of "laying the
criteria ... (to) build future jurisprudence on a heretofore unexplored area of judicial
inquiry." 1 The fact is that we have a wealth of settled jurisprudence and precedents,
Philippine and foreign, that control the determination of the simple issue at bar and call
for the setting aside of the exclusion order issued by respondent court (Sandiganbayan)
which wrongly rules as totally and absolutely inadmissible the testimonies given by
private respondents General Ver and Olivas and their six co- respondents (all charged as
accessories) as well as all the documents, records and other evidence produced by them
before the Fact-Finding Board, notwithstanding that all were represented by
counsel 2 and none of them invoked the privilege or right against self- incrimination or
made any claim or objection at the time of his testimony before the Board that any
question propounded to him and which he willingly answered called for an incriminating
answer against himself.
The following vital considerations based on settled jurisprudence and precedents show
that respondent court acted with gross error and misconception of the applicable
principles of the right against self-incrimination:
1. Respondent court grossly disregarded the settled guidelines laid down for trial courts
by this Court of Appeal vs. Paylo 3 thru Mr. Justice J.B.L. Reyes, speaking for a
unanimous Court, Chat
By so doing [ordering the exclusion of the proferred confessions of the
two accused upon a ground not raised by counsel but motu proprio by
the trial court, i.e. lack of independent proof of conspiracy] the [trial]
court overlooked that the right to objection is a mere privilege which
the parties may waive; and if the ground for objection is known and not
seasonably made, the objection is deemed waived and the [trial] court
has no power, on its own motion, to disregard the evidence (Marella
vs. Reyes, 12 Phil. 1) ... Suffice it to say that the lower court should
have allowed such confessions to be given in evidence at least as
against the parties who made them, and admit the same conditionally
to establish conspiracy, in order to give the prosecution a chance to
get into the record all the relevant evidence at its disposal to probe the
charges. At any rate, in the final determination and consideration of the
case, the trial court should be able to distinguish the admissible from
the inadmissible, and reject what, under the rules of evidence, should
be excluded.
Trial courts should be liberal in the matter of admission of proof and avoid the premature
and precipitate exclusion of evidence on doubtful objections to its admissibility, citing the
Court's long-standing basic ruling and policy in Prats & Co. vs. Phoenix Ins. Co. 4 that
reception and admission of evidence objected to on doubtful or technical grounds is
ultimately the less harmful course to either litigant, since the Supreme Court upon appeal
would then have all the materials before it necessary to make a correct judgment
(instead of returning the case for a new trial which only prolongs the determination of the
case); and
There is greater reason to adhere to such policy in criminal cases
where questions arise as to admissibility of evidence for the
prosecution, for the unjustified exclusion of evidence may lead to the
erroneous acquittal of the accused or the dismissal of the charges,
from which the People can no longer appeal 5
2. The right against self-incrimination is found in the first sentence of section 20 of the Bill
of Rights of the 1973 Constitution stating that "No person shall be compelled to be a
witness against himself." This single sentence constituted the whole text of section 18 of
the Bill of Rights of the 19,7,5 Constitution. This right against self-incrimination has a
settled meaning in jurisprudence which is fully applicable here since the right against
self-incrimination was first enforced here as an inviolable rule" in U.S. President
McKinley's instructions under date of April 7, 1900 to the Taft Commission. 6 As
recounted by the late Mr. Justice Conrado Sanchez as ponente for a unanimous Court in
the leading 1968 case of Chavez vs. Court of Appeals 7, "Mr. Justice Malcolm, in
expressive language, tells us that this maxim was recognized in England in the early
days 'in a revolt against the thumbscrew and the rack.' An old Philippine case [1904]
speaks of this constitutional injunction as 'older than the Government of the United
States;' as having 'its origin in a protest against the inquisitorial methods of interrogating
the accused person;' and as having been adopted in the Philippines 'to wipe out such
practices as formerly prevailed in these Islands of requiring accused persons to submit to
judicial examinations, and to give testimony regarding the offenses will which they were
charged.' " But Mr. Justice Sanchez equally stressed that "(an) accused occupies a
different tier of protection from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each question requiring an
incriminating answer is shot at him, 8 an accused may altogether refuse to take the
witness stand and refuse to answer any and all questions." 9
As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs.
Tengco, 10 "No legal impediment exists against a litigant calling any of the adverse
parties to be his witness. ... True, an accused in a criminal case may not be compelled to
testify, or to so much as utter a word, even for his own defense (U.S. vs, Junio, 1 Phil.
50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs. Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of
Court). But while the constitutional guaranty against self-incrimination protects a person
in all types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No. 18,
Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in, proceedings
other than a criminal case against him who invokes it, is considered an option of refusal
to answer incriminating question, and not a prohibition of inquiry.
Except in criminal cases, there is no rule prohibiting a party litigant
from utilizing his adversary as witness. As a matter of fact, section 83
of Rule 123, Rules of Court expressly authorizes a party to call an
adverse party to the witness stand and interrogate him. This rule is, of
course, subject to the constitutional injunction not to compel any
person to testify against himself. But it is established that the privilege
against self-incrimination must be invoked at the proper time, and the
proper time to invoke it is when a question calling for a incriminating
answer is propounded. This has to be so, because before a question is
asked there would be no way of telling whether the information to be
elicited from the witness is self-incriminating or not. As stated in Jones
on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to
be sworn as a witness' and 'no claim of privilege can be made until a
question calling for a incriminating answer is asked, at that time, and,
generally speaking, at that time only, the claim of privilege may
properly be interposed.' (Gonzales vs. Sec. of Labor, L-6409, February
5, 1954, 11 cit. in Navarro, Criminal Procedure, p. 302.)'
Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 wherein once
again the Court, with the concurrence in the result of the now Chief Justice, under similar
facts held that the petitioner (provincial treasurer) could not refuse to take the stand as
an adverse party in a civil case since the privilege against self-incrimination "in
proceedings other than a criminal case against him who invokes it, is considered an
option to refuse to answer incriminating questions, and not a prohibition of inquiry" and
"must be invoked when a question calling for an incriminating answer is propounded,
because before a question is asked, there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not." The Court therein
denied "the petition to prohibit respondent judge from directing petitioner to take the
witness stand and testify ... without prejudice to petitioner's properly invoking the
guaranty against self-incrimination when questions are propounded to him on the stand.
Costs against the petitioner."
3. All the respondents at bar were in this category of ordinary witnesses in the hearings
of the Fact-Finding Board. They were not accused in any criminal case nor were they
persons under custodial interrogation who under the second part of section 20 of the Bill
of Rights (consisting of three additional sentences 13) were given additional rights to
silence and counsel and to be informed of such rights and to the out-lawing of any
confession obtained in violation of the rights guaranteed in the cited section, by virtue of
the incorporation into the Bill of Rights of the rights granted in the rulings of the U.S.
Supreme Court in the Miranda-Escobedo cases. As noted by former Chief Justice
Enrique M. Fernando, "(I)t amounts to an acceptance of the applicability in this
jurisdiction of the epochal American Supreme Court decision in Miranda vs. Arizona, the
opinion being rendered by Chief Justice Warren. It is thus now a part of our fundamental
law. Such doctrine was promulgated in response to the question of the admissibility of
statements obtained from an individual interrogated under police custody, considering
that such a time and under the stress of such conditions, his right against self-
incrimination could be rendered futile." 14 The Miranda pronouncements thus became
necessarily a part and parcel of the additional rights granted in the cited section 20, as
made by the late U.S. Chief Justice Warren in the Miranda case thus: "The prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial interrogation we
mean questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.
" 15 These additional Miranda rights could not be invoked by respondents, as the
members of the Fact-Finding Board were not law enforcement officers nor were
respondents under custodial interrogation.
As ordinary witnesses before the Fact-Finding Board and under the settled jurisprudence
above-cited, they could not invoke the right to silence and refuse to take the witness
stand. Their right and privilege (which is not self-executory or automatic ipso jure) was,
while testifying, whether voluntarily or by subpoena, to invoke the privilege and refuse to
answer as and when a question calling for an incriminating answer is propounded.
Failure to invoke the privilege which is personal does automatically result in its loss ipso
facto. The law, usage and settled jurisprudence uniformly require that the privilege must
be asserted or else is lost. The court or board upon its invocation still has to pass upon
and rule upon the proper application of the privilege. As restated by Francisco, the rule
and exceptions are: "Certainly, where the witness, on oath declares his belief that the
answer to the question would criminate or tend to criminate him, the court cannot compel
him to answer, unless it is clear perfectly, from a careful consideration of all the
circumstances of the case, that the witness is mistaken, or is acting in bad faith, and that
the answer cannot possibly have any such tendency. " 16
4. The view that withal, it is best, although not required, that a warning to the witness of
his option to refuse an answer to incriminating questions as advanced even by the
Tanodbayan at the hearing dates back to a century ago and has been long discarded as
"witnesses are usually well enough advised beforehand by counsel as to their rights
when such issues impend" and "as general knowledge spread among the masses and
the preparation for testimony became more thorough." Thus, "ignore, the bible on the law
of evidence so remarks and adds that "there is no reason for letting a wholesome custom
degenerate into a technical rule."
It is plausible to argue that the witness should be warned and notified,
when a incriminating fact is inquired about, that he has an option to
refuse an answer; and this view was often insisted upon, a century
ago, by leaders at the Bar,
xxx xxx xxx
But there are opposing considerations. In the first place, such a
warning would be an anomaly; it is not given for any other privilege;
witnesses are in other respects supposed to know their rights; and why
not here? In the next place, it is not called for by principle, since, until
the witness refuses, it can hardly be said that he is compelled to
answer; nor is it material that he believes himself compelled; for the
Court's action, and not the witness' state of mind, must be the test of
compulsion. Again, the question can at any rate only be one of judicial
propriety of conduct, for no one supposes that an answer given under
such an erroneous belief should be struck out for lack of the warning.
Finally, in practical convenience, there is no demand for such rule;
witnesses are usually well enough advised beforehand by counsel as
to their rights when such issues impend, and judges are too much
concerned with other responsibilities to be burdened with the provision
of individual witnesses' knowledge; the risk of their being in ignorance
should fall rather upon the party summoning than the party opposing.
Nevertheless, it is plain that the old practice was to give such a
warning, when it appeared to be needed. But, as general knowledge
spread among the masses, and the preparation for testimony became
more thorough, this practice seems to have disappeared in England,
so far at least as any general rule was concerned.
In the United States, both the rule and the trial custom vary in the
different jurisdictions. No doubt a capable and painstaking judge will
give the warning, where need appears, but there is no reason for
letting a wholesome custom degenerate into a technical rule. 17
But from the environmental facts and circumstances of the Fact-Finding Board hearings,
to require such a warning to the witness of his option of refusal to answer incriminatory
questions would have been an exercise in absurdity and futility, As is a matter of public
knowledge, respondents had concluded in their investigation that Galman was the
assassin of the late Senator Aquino. As observed by former Senator Ambrosio Padilla as
amicus curiae at the hearing on the merits of August 15, 1985, they were all too eager to
testify and make a strong effort to gain support from the Fact-Finding Board and the
public for the military version and report that the assassin was Galman who was forthwith
gunned down by the military escorts and guards at the tarmac. It would have been
ridiculous, if not bordering on officiousness and impropriety, to warn them as the highest
ranking military officers of their option of refusal to answer incriminatory questions and
also as the majority holds, 18 of their right to remain silent. When respondents generals
appeared before the Board, respondent Ver precisely made the opening statement that
GENERAL VER:
I welcome this opportunity, Madame Justice,
members of this Honorable Board, Dean, Gentlemen
this opportunity to assist ... this Honorable Board in
the quest for truth and justice, We all deplore this
tragic incident which is now the subject of inquiry,
This Board, this Honorable Board is mandated to
conduct a free, full and exhaustive investigation into
the matter under investigation We all hope that my
testimony, madame, will somehow dispel any
misconception, or any misinformation surrounding
this tragic incident. I am now ready to answer your
questions.
JUSTICE AGRAVA:
Now, General, at the outset, we give the right and
the privilege for every witness to be assisted by
 counsel Do you have your counsel with you this
morning?
GENERAL VER:
I did not bring any counsel, madame, but ... if I need
a counsel, madame, I could probably look for...
probably ...
JUSTICE AGRAVA:
Yes?
GENERAL VER:
I may call Fiscal Parena or the Public Coordinator. I
was talking to Atty. Tan to assist me, in the
protection of my constitutional rights ...
JUSTICE AGRAVA:
Yes.
GENERAL VER:
... if it is necessary:
ATTY. TAN:
Your Honor, please, it is part of the function of this
office to help the witness if he doesn't have counsel,
and so, if the General is willing to have me, I will
happily serve as counsel, Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you. 19
Respondent Olivas likewise testified before the Board in response to its invitation to
assist it in determining the true facts and circumstances surrounding the double killing.
6. The majority decision would go around this by asserting without basis in the record
that "(A)ll the private respondents, except Generals Ver and Olivas, are members of the
military contingent that escorted Sen. Aquino while embarking from the plane that
brought him home to Manila on that fateful day. Being at the scene of the crime as such,
they were among the first line of suspects in the subject assassination. General Ver on
the other hand, being the highest military authority of his co-petitioners labored under the
same suspicion and so with General Olivas, the first designated investigator of the
tragedy, but whom others suspected, felt and believed to have bungled the case. The
papers, especially the foreign media, and rumors from ugly wagging tongues, all point to
them as having, in one way or another participated or have something to do, in the
alleged conspiracy that brought about the assassination. Could there still be any doubt
then that their being asked to testify, was to determine whether they were really
conspirators and if so, the extent of their participation in the said conspiracy?" In fact, the
respondent court's decision and separate opinions as well as the majority decision at bar
and the separate concurring opinions all fail to specify the particular portions of the
testimonies of respondents or any specific question and answer that can be in any way
deemed to be self-incriminating. Indeed, even if we assumed arguendo that they were
warned of their right against self-incrimination and tried absurdly to invoke the same,
there is no specific question and answer by way of testimony that could be pointed to
them as having been made under compulsion for the simple reason that their testimony
was in full support of their own military report that Galman was Aquino's killer and for
which they were trying to gain the Board's acceptance. In the all too brief and inadequate
deliberations held on August 20 and 21, 1985 after the hearing on the merits of August
15, 1985, without reaching a definite conclusion, the ponente reported and I share this
view from a cursory examination, for want of material time, of the excluded testimonies
only since the excluded documents, records and other evidence produced by them were
not before the Court that there is nothing in the excluded testimonies that could in any
way be deemed self-incriminatory perse. So there would be no legal basis whatever for
their exclusion. But the ponente circulated only last August 26th at noon his draft for
dismissal of the petitions which were filed only last month. And its release has been set
for August 30th.
7. There has not been enough time to weigh and ponder on the far-reaching
consequences of the decision at bar. The decision orders the total and unqualified
exclusion of the testimonies and evidence produced before the Fact-Finding Board by
the eight respondents charged as accessories "even though (they) failed to claim (their)
privilege before giving the incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the
cited compilation of American State and Federal Law expressly cautions that "The
question whether a witness must claim exemption . on from self-incrimination to be
entitled to immunity from subsequent prosecution must in each case be determined in
the light of constitutional and statutory provisions in the jurisdiction where the question
arises" (21 Am. Jur. 2d. 151). It recites on the same cited page that "Under a statute
granting immunity to persons who have been compelled to testify, one who has appeared
voluntarily and testified without claiming his privilege against self-incrimination or one
who has appeared and testified pursuant to a void subpoena or one addressed to
another person, without claiming the privilege, cannot say he has been compelled to
testify, and therefore, he is not entitled to immunity." And the necessity of claiming the
privilege against self-incrimination before an administrative officer or board such as the
Fact Finding Board is recognized to be essential, thus:
This is not only equally true as for the case of testimony in a judicial
trial, but the explicitness is here even more essential, and particularly
where the administrative officer makes a general demand for
documents or testimony upon a broad class of topics. The reason is
clear. The officer has testimonial powers to extract a general mass of
facts, or which some, many, or most will certainly be innocent and
unprivileged, some may be privileged communications (e.g., between
attorney and client) whose privilege remains unaffected by the statute
defining his powers, and some may be privileged as self-incriminating
but liable to become demandable by overriding this privilege with a
grant of immunity. Among these mass of facts, then, the officer will
seek those which are relevant to his administrative inquiry; he cannot
know which of them fall within one or another privilege in particular,
which of them tend to criminate at all, or to criminate a particular
person; if such facts are there, he may not desire or be authorized to
exercised the option of granting immunity so as to obtain them; his
primary function and power is to obtain the relevant facts at large, and
his power to obtain a special and limited class of facts by grant of
immunity is only a secondary one, and one which he will not exercise
till a cause arises, if even then.
For these reasons of practical sense, then, as well as for the inherent
requirements of principle already noticed for judicial officers, it is
particularly true for an inquiry by an administrative officer that the
witness must explicitly claim his privilege, and specifically the privilege
against self- incrimination, and must then be overridden in that claim,
before immunity can take effect. (VII Wigmore on Evidence, 2282, pp.
517-518)
The concurrence of Justice Vera Cruz sounds even more ominous thus:
I believe that where evidence is produced by a witness in accordance
with the conditions of the statute granting immunity such as P.D. No.
1886, as amended, its immunity provisions attach instantly and it is
entirely immaterial what use the investigation authority makes of it
 (People ex rel. Massarsky v. Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d
244).
Consequently, the evidence, given before the Agrava Board by the
accused in the instant cases namely, Generals Fabian Ver and
Prospero Olivas, and Sergeants Pablo Martinez, Tomas Fernandez,
Leonardo Mojica, Pepito Torio, Prospero Bona and Aniceto Acupido
cannot be used against them and this proscription did attach instantly
when they testified before the same Board. Verily, the prohibition
stands, irrespective of the purpose for which the prosecution would like
to use this evidence.
The total and unqualified exclusion of the testimony and evidence granted by respondent
court and sustained by the majority decision herein refers expressly to the eight
respondents charged as accessories. Would not this unprecedented grant of immunity
and exclusion of testimony be now claimed by the rest of the twenty-two accused
charged as principals except for the lone civilian? As reported by the press, respondent
court has suspended its trial and placed the pressure on the Court to rush its decision, as
"(T)he so-called 'trial of the century' has been delayed since last week on motion of the
defense panel which had argued that the high court's decision on the admissibility of
Ver's testimonies was a vital prerequisite to the presentation of witnesses for the
defense. " 20 Would this not result in the People holding an empty bag of excluded
testimonies and evidence, since to all intents and purposes all respondents-accused
testified before the Fact-Finding Board? Would their testimonies be inadmissible for
purposes even of impeaching such testimony as they may now give before respondent
court? These ponderous questions need not confront us had we but required respondent
court to hew to the settled procedure and doctrine of Yatco (supra, par. I hereof) of giving
the prosecution a chance to get into the record its relevant evidence until the final
determination and consideration of the case, for the unjustified exclusion of evidence of
the prosecution may lead to the erroneous acquittal of the accused or dismissal of the
charges, from which the People can no longer appeal.
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886 cited in respondent
court's questioned order and bolstered by the majority decision's "novel" conclusion and
ruling that the cited section quoted therein 21 requires a claim from the witness of the
privilege against self-incrimination but "forecloses under threat of contempt proceedings
[under section 4] against anyone who makes such a claim. But the strong testimonial
compulsion imposed by section 5 of P.D. 1886 viewed in the light, of the actions provided
in section 4, infringes upon the witness' right against self- incrimination. As a rule, such
infringement of the constitutional right renders inoperative the testimonial compulsion,
meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection
in the form of IMMUNITY is offered. Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be required to
answer, so as to safeguard his sacred constitutional right. But in this case, the
compulsion has already produced its desired results the private respondents had all
testified without offer of immunity. Their constitutional rights are, therefore, in jeopardy.
The only way to cure the law of its unconstitutional effects is to construe it in the manner
as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent
sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D.
1886, the testimonies compelled thereby are deemed immunized under Section 5 of the
same law. The applicability of the immunity granted by P.D. 1886 cannot be made to
depend on a claim of the privilege against self-incrimination which the same law
practically strips away from the witness. " Emphasis supplied).
It bears emphasis that none of respondents made any such claim against self-
incrimination. The "oppressive compulsion" if it may be so-called, consists of a maximum
penalty of P200. fine and/or 30 days imprisonment for direct contempt. As indicated, it
would be ridiculous for any respondent to 1 make such claim when his testimony was but
in full support of their own military theory and report that Galman killed Aquino.
The language of the cited section 22 is plain and simple. It excuses no one from testifying
and producing books and records but grants him immunity from prosecution (except for
perjury) after having invoked his privilege against self-incrimination " There is nothing
oppressive about such compulsion in exchange for immunity provided the witness
invokes his and aims his privilege a against self-incrimination.
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to dismiss outright
the petitions. opined that The clause 'concerning which lie is compelled to testify after
having invoked his privilege against self-incrimination' is surplusage. It is in conflict with
the first clause which, as already stated, gives immunity to the witness except in case of
perjury. So, section 5 should be read as if that clause were not there.This is contrary to
the rules of statutory construction that there is no room for construction when tile text is
plain and simple, i.e. requires invocation and that the provisions must be taken in context
and all the words taken into account and given their full meaning. The Anti-Gambling
Law, Act No. 1757, enacted on October 9, 1907 by the Philippine Commission (probably
the first Philippine immunity statute) granted such absolute immunity and does not
contain the conditional clause requiring that the witness invoke his privilege against self-
incrimination. Section 10 of the cited Act reads:
Sec. 10. Upon any investigation or proceeding for violation of this Act
no person shall be excused from giving testimony upon the ground that
such testimony would tend to convict him of a crime, but such
testimony cannot be received against him upon any criminal
investigation or proceeding; Provided, however, That no person so
testifying shall be exempt from prosecution or punishment for perjury
committed in the course of any proceeding or investigation had by
virtue of [his Act. (1 CPS [Rev. Ed.], 190)
But when the statute grants conditional immunity (and not absolute as in the above-
quoted section 10 of the Anti-Gambling Act.), then it explicitly contains the cited
conditional clause in section 5 of P.D. 1886 granting immunity only when "he is
compelled to testify after having invoked his privilege against self-incrimination. "
This is but in accord with long-settled Philippine jurisprudence cited above (supra.
paragraph 2 hereof), that the witness has an option of refusal to answer incriminatory
questions, which he loses ipso facto if he does not invoke the privilege and nevertheless
answers the questions. Here, in review of the national and international importance of the
case with the country's very prestige at stake, the P.D. added the incentive of offering
immunity: "The purpose of immunity provisions is to aid prosecuting officers by inducing
criminals or their confederates to turn state's evidence and tell on each other, to enable
prosecuting officers to procure evidence which would otherwise be denied to them
because of the constitutional right against self-incrimination, and at the same time to
protect every person from gluing testimony which directly or indirectly would be helpful to
the prosecution in securing an indictment or a conviction. The provisions for immunity are
or should be as broad as or co-extensive with the constitutional provisions granting the
privilege against self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec. 148). It is bad
enough that no state's evidence turned up to tell on his confederates in exchange of
immunity. But to call the cited section " a booby trap for the unsuspecting or unwary
witness" unless it was construed as granting absolute and unconditional immunity from
the very fact of merely testifying as a witness before the Board without claiming immunity
nor giving any incriminatory information that would aid the state to determine the true
facts about Aquino's assassination would be a sell-out. It would make a shambles of the
letter and spirit as well as the salutary intent and objective of the Decree to ferret out the
truth and obtain state witnesses.
9. The truncated and distorted reading of the cited section 5 which consists of a single
integrated paragraph and splitting it into two isolated parts so as to allow the privilege
against self-incrimination (which was already lost for failure to claim it in the Board
hearings) to be resurrected and raised in a much later time frame and "subsequent
criminal proceeding" is against all usage and rules of statutory construction, not to
mention the long line of above-cited jurisprudence to the contrary. And if there still be
doubt, we need only reproduce hereunder the similar wording of Senate Joint Resolution
137 (Public Law 88-202) after which section 5 of P.D. 1886 was patterned. Said law was
enacted by the U.S. Congress in December 1963 to empower the Warren Commission to
issue subpoenas requiring the testimony of witness and the production of evidence
relating to any matter under its investigation. The Report of the President's Commission
on the Assassination of President John F. Kennedy in its foreword on page X stated that
"In addition, the resolution authorized the Commission to compel testimony from
witnesses claiming the privilege against self-incrimination under the fifth amendment to
the U.S. Constitution by providing for the grant of immunity to persons testifying under
such compulsion." (Emphasis supplied). The cited Public Law reads:
(e) No person shall be excused from attending and testifying or from
producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena, on the ground that the testimony
or evidence required of him may tend to incriminate him or subject him
to a penalty or forfeiture but no individual shall be prosecuted or
subjected to any penalty or forfeiture (except demotion or removal from
office) for or on account of any transaction matter, or thing concerning
which he is compelled, after having claimed his privilege against self-
incrimination to testify or produce evidence, except that such individual
so testifying shall not be exempt from prosecution and punishment for
perjury committed in so testifying. (Emphasis supplied).
10. As already indicated above, none of the respondents, public and private, has
indicated the specific portions of their testimony that they have been "oppressively
compelled" to glue, in alleged violation of their privilege against self-incrimination. The
reason for this is that they all testified voluntarily and eagerly to support the military report
and version that Galman killed Senator Aquino. The Board unanimously rejected the
military report and found that the killings were the product of criminal conspiracy. A brief
flashback is herein appropriate: Within 60 seconds from his being led away by soldiers
from his plane that had just landed at the Manila International Airport on Sunday, August
21, 1983 at past one p.m., former Senator Benigno S. Aquino, Jr. who was coming home
after three years of self-exile in the U.S. laid dead face down on the tarmac, with his
brain smashed by a bullet fired point blank into the back of his head by a murderous
assassin. 23 Also lying dead on the tarmac, face up, near the senator was another man,
to be Identified much later as Rolando Galman, whom the soldiers admittedly gunned
down. The military pointed to him as Aquino's assassin, who had somehow allegedly
penetrated the air-tight security of close to 2000 men ringing the airport. The military
version met with great public disbelief and skepticism. The first fact-finding commission
created under Administrative Order No. 469 dated August 24, 1983 and P.D. 1879 dated
August 27, 1983 was the object of several suits charging bias and that the President
"had already prejudged the case, by rejecting the version of foreign media that it is one of
the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said commission
was dissolved per P.D. 1886, dated October 14, 1983 (later amended by P.D. 1903
dated February 8, 1984) which created the ad hoc Fact-Finding Board with plenary
powers to investigate "the treacherous and vicious assassination (which) has to all
Filipinos become a national tragedy and national shame ... (and) to determine the facts
and circumstances surrounding the killing and to allow for a free, unlimited and
exhaustive investigation into all the aspects of said tragedy." The Board after extensive
hearings, submitted to the President their majority report on October 24, 1984, while the
chairman former Court of Appeals Justice Corazon Agrava submitted her minority report
one day earlier on October 23, 1984. All five members of the Board unanimously rejected
the official military version that Galman was the assassin and instead found that there
was criminal conspiracy. Their main difference of opinion is that the four-member
majority found twenty-five military men (headed by respondents Generals Ver, Olivas
and Luther Custodia) and one civilian "indictable for the premeditated killing of Senator
Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983." The
chairman's report confined the conspiracy to seven men headed by General Custodia.
The Tanodbayan, after conducting the preliminary investigation, adopted the Board's
majority report recommending the indictment of the accused as "involved in this
conspiracy, either as principals, upon the theory that the act of one is the act of all, or as
accessories, for attempting to hide the corpus of the offense." The eight accessories so
indicted are the private respondents herein named headed by respondents Ver and
Olivas. (The chairman in her minority report had found that "(T)he indications are that the
plotters had agreed that only one would be the assassin; that the others can either point
to Galman as the killer; or they can state that they did not see the shooting; and that they
will give false testimony to mislead and confuse.
11. Only the former lawyers of the Fact-Finding Board created under P.D. No. 1886,
consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Jr., Mario E. Ongkiko and
Francisco A. Villa have given us the answer that there is nothing incriminatory per se in
the testimonies of the respondents, in the Memorandum submitted by them, to wit:
I. The so-called 'Galman Theory that it was Rolando Galman who killed
Senator Aquino is either true or untrue, a matter the
SANDIGANBAYAN will have to resolve.
II. If the 'Galman Theory' be true as advocated by the military officers
concerned then the testimony of Ver, et al. is true. It is not self-
incriminatory. There would then be no reason to exclude it.
If, on the other hand, the theory be untrue as the prosecution in turn
advocates then the testimony of Ver, et al. is untrue. It is incriminatory
of them, because by giving it and thereby seeking to hide the crime,
they incriminated themselves. Withal there would also be no reason to
exclude it. Surely, after their plot to deceive the Board had been
exposed, they should not now be allowed to use the law to bring about
exclusion of the very proof of their deception.
In short, the testimonies of respondents could only be deemed incriminating if it be found
that they sought thereby to hide or cover up the crime and thus incriminate themselves,
as accessories to the murder of Senator Aquino. The former Fact-Finding Board lawyers
amplify their theory, as follows:
5. The plain language of Section 5, PD 1886 precludes its interpretation as extending
immunity to all testimony or evidence produced before the Board in obedience to
subpoena regardless of whether the witness giving such evidence invokes the privilege
against self-incrimination or not.
6. The fact is, the invocation by Ver, et al. of such right would have been self-defeating
first, it would have prevented them from presenting evidence in substantiation of the
'Galman Theory,' which they wished the Board to accept; and second, it might have
exposed to some extent their real objective, which was to deceive the Board.
7. It would have been incongruous for Ver, et al. to have claimed that their testimony
would incriminate them as accessories to the murder of Aquino when they were, by
testifying, actually in process of committing that precise crime, becoming accessories.
8. Neither PD 1886 nor the Constitution should be used as a shield for crime, fraud or
trickery.
9. The foregoing propositions were ignored by the SANDIGANBAYAN. Instead, with all
due respect, it has
a. given Section 5, PD 1886 a strained construction not justified by and
contrary to its plain language;
 b. given Section 20, Article IV, Constitution, a meaning at odds with its
plain terms and contrary to relevant decisions of this Honorable
Supreme Court; and
c. sanctioned the use of legal provisions to shield persons from
criminal liability arising from their perfidious testimony before the Fact-
Finding Board.
There is no legal ground nor justification for the exclusion order. It is for respondent
court, upon consideration of the evidence for the People, without any exclusion, and of
the evidence for the defense in due course, to render its verdict of guilty or not guilty.
With a word of commendation for the former Fact-Finding Board lawyers and former
Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose memoranda as amid
curiae, have been of great assistance, I vote, accordingly, to grant the petitions at bar
and to set aside the questioned exclusion order.
MELENCIO-HERRERA, J., dissenting:
I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan.
The resolution of the issue revolves around the interpretation to be given to Sec. 5 of PD
No. 1886, reading as follows:
SEC. 5. No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena issued by the Board on the
grounds that his testimony or the evidence required of him may tend to
incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in
connection with any transaction, matter, or thing concerning which he
is compelled, after having invoked his privilege against self-
incrimination, to testify or produce evidence, except that such an
individual so testifying shall not be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office. (Emphasis supplied)
As I read the law, Section 5 does not require that the person testifying before the Agrava
Fact Finding Board (the Board, for short) shall first invoke the privilege against self-
incrimination. Under said statute it is obvious that he has no such privilege.
But what is the effect of the second part providing that his testimony or any evidence
produced by him shall not be used against him in connection with any transaction, matter
or thing concerning which he is compelled, after having invoked his privilege against self-
incrimination, to testify or produce evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has testified before the
Board absolute or total immunity. It should not operate as a shield against criminal
liability specially since, under Section 12 of the same Decree, the Board may initiate the
filing of the proper complaint if its finding so warrant. Thus,
SEC. 12. The findings of the Board shall be made public. Should the
findings warrant the prosecution of any person the Board may initiate
the filing of the proper complaint with the appropriate government
agency. ... (Emphasis supplied)
The inquiry before the Board was a general one. It was not directed against any
particular individual or individuals. Private respondents did not testify therein as suspects
or as accused persons. There should therefore be no hindrance to a criminal
prosecution.
It has been held that where an inquiry by a grand jury is a general one
and is not directed against a particular individual the fact that on the
basis of the information elicited, grounds for a criminal prosecution
may evolve against a witness, may not serve as a bar to such
prosecution (U.S. v. Okin D.C.N.J., 154 F. Supp. 553; Benson v.
Goldstein, 124 N.Y.S. 2d 452) even though he testified before the
grand jury without being warned of his constitutional privileges against
self- incrimination. (U.S. v. Okin supra) (Emphasis supplied)
The right against self incrimination is not a prohibition of inquiry but an option of refusal to
answer incriminating questions Cabal vs. Kapunan, 6 SCRA 1059 [1962]). The kernel of
the privilege is testimonial compulsion. Whether or not any specific portion of the
testimonies of private respondents is incriminating should be determined by the
Sandiganbayan itself. The claim against self-incrimination should be invoked when a
specific question, which is incriminating in character, is put to a witness in the
subsequent proceeding. There should be no automatic "immunity bath" of the entire
testimony before the Board for immunity does not extend to such of the evidence as is
not privileged.
... But it is established that the privilege against self-incrimination must
be invoked at the proper time, and the proper time to invoke it is when
a question calling for an incriminating answer is propounded. This has
to be so, because before a question is asked there would be no way of
telling whether the information to be elicited from the witness is self-
incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-
4927), a person who has been summoned to testify 'cannot decline to
appear, nor can be decline to be sworn as a witness' and 'no claim or
privilege can be made until a question calling for a incriminating
answer is asked; at that time, and generally speaking, at that time only,
the claim of privilege may be interposed. (Gonzales vs. Sec. of Labor,
et al., 94 Phil. 325, 326 [19541).
Moreover, the issue actually addresses itself to a question of admissibility or competency
of evidence and not to its credibility. Whether the evidence so admitted is to be given any
probative weight or credence is best addressed to the Sandiganbayan. It should be
recalled that the Board was not unanimous in its assessment of the testimonies given.
There are additional considerations. While the right against self-incrimination is
indubitably one of the most fundamental of human rights, Section 5 of PD No. 1886
should be construed so as to effect a practical and beneficent purpose and not in such a
manner as to hinder or obstruct the administration of criminal justice.
... Any statute which, while it compels him to testify, protects the
witness if he does disclose the circumstances of his offense and the
sources from which or the means by which evidence of its commission
or of his connection with it may be obtained or made effectual for his
subsequent prosecution and conviction is sufficient to comply with the
constitutional requirements. Such a statute, however should be
construed to effect a practical and beneficent purpose, namely, at the
same time to secure the witness in his constitutional rights and to
permit the prosecuting officer to secure evidence of a crime. It should
not be construed so as to unduly impede, hinder, or obstruct the
administration of criminal justice." Brown v. Walker 161 US 591, 16
Sup. Ct. 644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S.
990, 132 App. Div. 406)
The objective in all this exercise is to arrive at the truth. "Though the constitutional
provisions for the protection of one who appears ... must be liberally and fairly applied,
the interests of the people are also entitled to consideration" (Wharton's Criminal
Evidence, 11th Ed., Vol. 1, p. 609; People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593).
Specially so since, in the language of PD No. 1886 itself, the "treacherous and vicious
assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all
Filipinos become a national tragedy and national shame. "
In the interest of eliciting the truth, the excluded testimonies should be admitted, leaving
it to the Sandiganbayan to determine which specific questions and answers are to be
excluded because they are incriminatory, and which should be given credibility, in found
to be competent and admissible.
RELOVA, J., dissenting:
The issue raised in these two petitions is whether the testimonies and other evidence
produced by the private respondents before the Agrava Board may be used as evidence
against them before the Sandiganbayan
Respondent Sandiganbayan rejected their testimonies on the ground that "under statutes
providing in substance that no person shall be excused from testifying or furnishing
evidence on the ground that the testimony or evidence may tend to incriminate him, but
that no person shall be subject to indictment or prosecution for anything concerning
which he may testify or furnish evidence, it has been held that one who testifies
concerning criminal offenses when required to do so is entitled to immunity from
prosecution even though he fails to claim his privilege before giving the incriminating
testimony (21 Am Jur 2d 218). He could not be required, in order to gain the immunity
which the law afforded, to go though the formality of an objection or protest which,
however made, would be useless (VIII Wigmore 516)." (p. 4, Resolution of
Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
SEC. 5. No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena issued by the Board on the
ground that his testimony or the evidence required of him may tend to
incriminate him or subject him to penalty or forfeiture; but his testimony
or any evidence produced by him shall not be used against him in
connection with any transaction, matter or thing concerning which he is
compelled, after having invoked his privilege against self- incrimination
to testify or produce evidence ... (Emphasis supplied.)
Pursuant to the above Presidential Decree no one can refuse to testify or furnish
evidence before the Fact Finding Board. However, his testimony or any evidence
produced shall not be used against him after he invoked the privilege against self-
incrimination. Stated differently, the privilege against self-incrimination must be invoked
when the question at the hearing before the Board, calling for an incriminating answer is
propounded; otherwise, before any question is asked of the witness, he would not know
whether the information to be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court held that
"the privilege against self-incrimination must be invoked at the proper time, and the
proper time to invoke it is when question calling for a incriminating answer is
propounded. This has to be so, because before a question is asked there would be no
way of telling whether the information to be elicited from the witness is self-incriminating
or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can he decline to be sworn as a
witness' and 'no claim of privilege can be made until a question calling for a incriminating
answer is asked; at that time, and generally speaking, at that time only, the claim of
privilege may properly be interposed.'" And, since it is a personal right to be exercised
only by the witness, this privilege against self-incrimination may be waived by him and,
when so waived, cannot thereafter be asserted. The privilege is waived by his voluntary
offer to testify by, answering questions without objecting and/or claiming the privilege.
When private respondents gave testimonies before the Board they were not defendants
but witnesses invited and/or subpoenaed "to ventilate the truth thorougly free,
independent and dispassionate investigation." They could not refuse or withhold answers
to questions propounded to them unless the inquiry calls for an incriminating answer and
a timely objection is raised.
In the case at bar, since the private respondents answered questions from the Fact
Finding Board without claiming the privilege against self-incrimination they cannot now
be allowed to invoke the immunity clause provided in Section 5 of Presidential Decree
No. 1886.
I vote to grant the petitions.
[G.R. No. 148220. June 15, 2005]
ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his
mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding
Judge, Branch 48, Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000
of the Court of Appeals (appellate court) in CA-G.R. SP No. 59766. The appellate court
affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial
court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera
(petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the Order
dated 8 June 2000 denied petitioners motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented
by his mother Armi Alba, filed before the trial court a petition for compulsory recognition,
support and damages against petitioner. On 7 August 1998, petitioner filed his answer
with counterclaim where he denied that he is the biological father of respondent.
Petitioner also denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate
the proceedings. To support the motion, respondent presented the testimony of
Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at
De La Salle University where she taught Cell Biology. She was also head of the
University of the Philippines Natural Sciences Research Institute (UP-NSRI), a DNA
analysis laboratory. She was a former professor at the University of the Philippines in
Diliman, Quezon City, where she developed the Molecular Biology Program and taught
Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity
testing and asserted that the test had an accuracy rate of 99.9999% in establishing
paternity.[4]
Petitioner opposed DNA paternity testing and contended that it has not gained
acceptability. Petitioner further argued that DNA paternity testing violates his right against
self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondents motion to
conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant
individuals, namely: the petitioner, the minor child, and respondent are directed to
undergo DNA paternity testing in a laboratory of their common choice within a
period of thirty (30) days from receipt of the Order, and to submit the results
thereof within a period of ninety (90) days from completion. The parties are further
reminded of the hearing set on 24 February 2000 for the reception of other
evidence in support of the petition.
IT IS SO ORDERED.[5] (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He
asserted that under the present circumstances, the DNA test [he] is compelled to take
would be inconclusive, irrelevant and the coercive process to obtain the requisite
specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied petitioners motion for
reconsideration.[6]
 On 18 July 2000, petitioner filed before the appellate court a petition
for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the
trial court rendered the Orders dated 3 February 2000 and 8 June 2000 in excess of, or
without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Petitioner further contended that there is no appeal nor any [other] plain,
adequate and speedy remedy in the ordinary course of law. Petitioner maintained his
previous objections to the taking of DNA paternity testing. He submitted the following
grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of
Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the
limitations on, and conditions precedent for the admissibility of DNA
testing and ignoring the serious constraints affecting the reliability of
the test as admitted by private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent
relying on scientific findings and conclusions unfit for judicial notice
and unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled
to take will be inconclusive, irrelevant and the coercive process to
obtain the requisite specimen from the petitioner, unconstitutional. [7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition
and affirming the questioned Orders of the trial court. The appellate court stated that
petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is
an available remedy for an error of judgment that the court may commit in the exercise of
its jurisdiction. The appellate court also stated that the proposed DNA paternity testing
does not violate his right against self-incrimination because the right applies only to
testimonial compulsion. Finally, the appellate court pointed out that petitioner can still
refute a possible adverse result of the DNA paternity testing. The dispositive portion of
the appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is
hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders
of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its
Resolution dated 23 May 2001.[9]
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this
jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA
technology may be integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.[10]
Petitioner further submits that the appellate court gravely abused its discretion
when it authorized the trial court to embark in [sic] a new procedure xxx to determine
filiation despite the absence of legislation to ensure its reliability and integrity, want of
official recognition as made clear in Lim vs. Court of Appeals and the presence of
technical and legal constraints in respect of [sic] its implementation.[11] Petitioner
maintains that the proposed DNA paternity testing violates his right against self-
incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to
give an overview of a paternity suit and apply it to the facts of this case. We shall
consider the requirements of the Family Code and of the Rules of Evidence to establish
paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to
secure a legal right associated with paternity, such as citizenship, [13] support (as in the
present case), or inheritance. The burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child. There are four
significant procedural aspects of a traditional paternity action which parties have to face:
a prima facie case, affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child. [14]
A prima facie case exists if a woman declares that she had sexual relations with the
putative father. In our jurisdiction, corroborative proof is required to carry the burden
forward and shift it to the putative father.[15]
There are two affirmative defenses available to the putative father. The putative
father may show incapability of sexual relations with the mother, because of either
physical absence or impotency.[16] The putative father may also show that the mother
had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed
legitimate.[17] The childs legitimacy may be impugned only under the strict standards
provided by law.[18]
Finally, physical resemblance between the putative father and child may be offered
as part of evidence of paternity. Resemblance is a trial technique unique to a paternity
proceeding. However, although likeness is a function of heredity, there is no
mathematical formula that could quantify how much a child must or must not look like his
biological father.[19] This kind of evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondents mother, put forward a prima facie case when she asserted that petitioner is
respondents biological father. Aware that her assertion is not enough to convince the trial
court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the
other hand, denied Armi Albas assertion. He denied ever having sexual relations with
Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba
countered petitioners denial by submitting pictures of respondent and petitioner side by
side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look
to the law, rules, and governing jurisprudence to help us determine what evidence of
incriminating acts on paternity and filiation are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same evidence as legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment;
or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of
Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related
to him by birth or marriage, may be received in evidence where it occurred before
the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word pedigree includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces
also facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The reputation or
tradition existing in a family previous to the controversy, in respect to the pedigree
of any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity. Entries
in family bibles or other family books or charts, engraving on rings, family
portraits and the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA,[20] a case petitioner often cites, we stated
that the issue of paternity still has to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative father. Under Article 278 of
the New Civil Code, voluntary recognition by a parent shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic writing. To be
effective, the claim of filiation must be made by the putative father himself and the writing
must be the writing of the putative father.[21] A notarial agreement to support a child
whose filiation is admitted by the putative father was considered acceptable
evidence.[22] Letters to the mother vowing to be a good father to the child and pictures of
the putative father cuddling the child on various occasions, together with the certificate of
live birth, proved filiation.[23] However, a student permanent record, a written consent to a
fathers operation, or a marriage contract where the putative father gave consent, cannot
be taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor
family pictures[26] are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and
filiation to incriminating acts alone. However, advances in science show that sources of
evidence of paternity and filiation need not be limited to incriminating acts. There is now
almost universal scientific agreement that blood grouping tests are conclusive on non-
paternity, although inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that
the putative father was a possible father of the child. Paternity was imputed to the
putative father after the possibility of paternity was proven on presentation during trial of
facts and circumstances other than the results of the blood grouping test.
In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed
to submit themselves to a blood grouping test. The National Bureau of Investigation (NBI)
conducted the test, which indicated that the child could not have been the possible
offspring of the mother and the putative father. We held that the result of the blood
grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA
analysis may be admitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a persons entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic
identity is unique. Hence, a persons DNA profile can determine his identity. [30]
DNA analysis is a procedure in which DNA extracted from a biological sample
obtained from an individual is examined. The DNA is processed to generate a pattern, or
a DNA profile, for the individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.[31] We quote relevant portions of the
trial courts 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic
acid). It is exclusive to an individual (except in the rare occurrence of identical
twins that share a single, fertilized egg), and DNA is unchanging throughout life.
Being a component of every cell in the human body, the DNA of an individuals
blood is the very DNA in his or her skin cells, hair follicles, muscles, semen,
samples from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the
four bases appear in an individuals DNA determines his or her physical makeup.
And since DNA is a double-stranded molecule, it is composed of two specific
paired bases, A-T or T-A and G-C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a particular
sequence. This gives a person his or her genetic code. Somewhere in the DNA
framework, nonetheless, are sections that differ. They are known as polymorphic
loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or
analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA
typing simply means determining the polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or extracted, a
molecular biologist may proceed to analyze it in several ways. There are five (5)
techniques to conduct DNA typing. They are: the RFLP (restriction fragment length
polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287 cases
that were admitted as evidence by 37 courts in the U.S. as of November 1994;
mtDNA process; VNTR (variable number tandem repeats); and the most recent
which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or copying DNA in an
evidence sample a million times through repeated cycling of a reaction involving
the so-called DNA polymerize enzyme. STR, on the other hand, takes
measurements in 13 separate places and can match two (2) samples with a
reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined. To
illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal
case, the evidence collected from the crime scene is compared with
the known print. If a substantial amount of the identifying features are the same,
the DNA or fingerprint is deemed to be a match. But then, even if only one feature
of the DNA or fingerprint is different, it is deemed not to have come from the
suspect.
As earlier stated, certain regions of human DNA show variations between people.
In each of these regions, a person possesses two genetic types called allele, one
inherited from each parent. In [a] paternity test, the forensic scientist looks at a
number of these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is possible to
determine which half of the childs DNA was inherited from the mother. The other
half must have been inherited from the biological father. The alleged fathers profile
is then examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the mans DNA types do not match that of
the child, the man is excluded as the father. If the DNA types match, then he
is not excluded as the father.[32] (Emphasis in the original)
Although the term DNA testing was mentioned in the 1995 case of People v.
Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of Appeals[34] that
more than a passing mention was given to DNA analysis. In Tijing, we issued a writ
of habeas corpus against respondent who abducted petitioners youngest son.
Testimonial and documentary evidence and physical resemblance were used to establish
parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University
of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. xxx For it was said, that courts should apply the results of
science when completely obtained in aid of situations presented, since to reject
said result is to deny progress. Though it is not necessary in this case to resort to
DNA testing, in [the] future it would be useful to all concerned in the prompt
resolution of parentage and identity issues.
Admissibility of
DNA Analysis as Evidence
The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This
may be considered a 180 degree turn from the Courts wary attitude towards DNA testing
in the 1997 Pe Lim case,[36] where we stated that DNA, being a relatively new science,
xxx has not yet been accorded official recognition by our courts. In Vallejo, the DNA
profile from the vaginal swabs taken from the rape victim matched the accuseds DNA
profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to
death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data: how the samples were collected,
how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests.[37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002,
there was no longer any question on the validity of the use of DNA analysis as evidence.
The Court moved from the issue of according official recognition to DNA analysis as
evidence to the issue of observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence
on DNA testing: People v. Yatar[38] and In re: The Writ of Habeas Corpus for
Reynaldo de Villa.[39] In Yatar, a match existed between the DNA profile of the semen
found in the victim and the DNA profile of the blood sample given by appellant in open
court. The Court, following Vallejos footsteps, affirmed the conviction of appellant
because the physical evidence, corroborated by circumstantial evidence, showed
appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA
test results to prove that he is not the father of the child conceived at the time of
commission of the rape. The Court ruled that a difference between the DNA profile of the
convict-petitioner and the DNA profile of the victims child does not preclude the convict-
petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to
two United States cases to support their respective positions on the admissibility of DNA
analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow
Pharmaceuticals.[41] In Frye v. U.S., the trial court convicted Frye of murder. Frye
appealed his conviction to the Supreme Court of the District of Columbia. During trial,
Fryes counsel offered an expert witness to testify on the result of a systolic blood
pressure deception test[42] made on defendant. The state Supreme Court affirmed Fryes
conviction and ruled that the systolic blood pressure deception test has not yet gained
such standing and scientific recognition among physiological and psychological
authorities as would justify the courts in admitting expert testimony deduced from the
discovery, development, and experiments thus far made. The Frye standard of general
acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle must be recognized, and while
courts will go a long way in admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing from which the deduction is
made must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged
with stabbing and murder. Bloodstained articles and blood samples of the accused and
the victim were submitted for DNA testing to a government facility and a private facility.
The prosecution introduced the private testing facilitys results over Schwartzs objection.
One of the issues brought before the state Supreme Court included the admissibility of
DNA test results in a criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general
acceptance in the scientific community, we hold that admissibility of specific test
results in a particular case hinges on the laboratorys compliance with appropriate
standards and controls, and the availability of their testing data and results.[44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified
the Frye-Schwartz standard. Daubert was a product liability case where both the trial
and appellate courts denied the admissibility of an experts testimony because it failed to
meet the Frye standard of general acceptance. The United States Supreme Court ruled
that in federal trials, the Federal Rules of Evidence have superseded the Frye standard.
Rule 401 defines relevant evidence, while Rule 402 provides the foundation for
admissibility of evidence. Thus:
Rule 401. Relevant evidence is defined as that which has any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory authority. Evidence
which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance
does not mean that the Federal Rules do not place limits on the admissibility of scientific
evidence. Rather, the judge must ensure that the testimonys reasoning or method is
scientifically valid and is relevant to the issue. Admissibility would depend on factors such
as (1) whether the theory or technique can be or has been tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the known or
potential rate of error; (4) the existence and maintenance of standards controlling the
techniques operation; and (5) whether the theory or technique is generally accepted in
the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified
the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now
reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
the case.
We now determine the applicability in this jurisdiction of these American cases.
Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines.[47] At best, American jurisprudence merely has a persuasive
effect on our decisions. Here, evidence is admissible when it is relevant to the fact in
issue and is not otherwise excluded by statute or the Rules of Court.[48] Evidence is
relevant when it has such a relation to the fact in issue as to induce belief in its existence
or non-existence.[49] Section 49 of Rule 130, which governs the admissibility of expert
testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill, experience
or training which he is shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue. [50]
Indeed, it would have been convenient to merely refer petitioner to our decisions
in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In
our jurisdiction, the restrictive tests for admissibility established by Frye-
Schwartz and Daubert-Kumho go into the weight of the evidence.
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data: how the samples were collected,
how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests.[51]
We also repeat the trial courts explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to determine which half of the childs
DNA was inherited from the mother. The other half must have been inherited from
the biological father. The alleged fathers profile is then examined to ascertain
whether he has the DNA types in his profile, which match the paternal types in the
child. If the mans DNA types do not match that of the child, the man is excluded as
the father. If the DNA types match, then he is not excluded as the father.[52]
It is not enough to state that the childs DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and the DNA profile of the putative
father does not necessarily establish paternity. For this reason, following the highest
standard adopted in an American jurisdiction,[53] trial courts should require at least 99.9%
as a minimum value of the Probability of Paternity (W) prior to a paternity inclusion. W is
a numerical estimate for the likelihood of paternity of a putative father compared to the
probability of a random match of two unrelated individuals. An appropriate reference
population database, such as the Philippine population database, is required to compute
for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%.
However, the accuracy of W estimates is higher when the putative father, mother and
child are subjected to DNA analysis compared to those conducted between the putative
father and child alone.[54]
DNA analysis that excludes the putative father from paternity should be conclusive
proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA
analysis should be considered as corroborative evidence. If the value of W is 99.9% or
higher, then there is refutable presumption of paternity.[55] This refutable presumption of
paternity should be subjected to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that no person shall be
compelled to be a witness against himself. Petitioner asserts that obtaining samples from
him for DNA testing violates his right against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable only to testimonial evidence.
Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the
respondent in a paternity case, contrary to the belief of respondent in this action,
will not violate the right against self-incrimination. This privilege applies only to
evidence that is communicative in essence taken under duress (People vs. Olvis,
154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-
incrimination is just a prohibition on the use of physical or moral compulsion to
extort communication (testimonial evidence) from a defendant, not an exclusion of
evidence taken from his body when it may be material. As such, a defendant can
be required to submit to a test to extract virus from his body (as cited in People vs.
Olvis, Supra); the substance emitting from the body of the accused was received
as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine
forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735);
an order by the judge for the witness to put on pair of pants for size was allowed
(People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of
adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the
gist of the privilege is the restriction on testimonial compulsion.[56]
The policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children, is without prejudice to
the right of the putative parent to claim his or her own defenses.[57] Where the evidence
to aid this investigation is obtainable through the facilities of modern science and
technology, such evidence should be considered subject to the limits established by the
law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional
Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna,
JJ., concur.
G.R. No. 136051 June 8, 2006
ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners,
vs.
JULIANO LIM and LILIA LIM, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside the Decision 1 of
the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the
Orders of Branch 77 of the Regional Trial Court (RTC) of Quezon City in Civil Case No.
Q-95-25803 dated 22 July 19972 and 27 August 1997,3 allowing the taking of deposition
upon oral examination of petitioners Oscar P. Mapalo and Chito P. Rosete, and its
Resolution4 dated 19 October 1998 denying petitioners Motion for Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of
the RTC of Quezon City a Complaint for Annulment, Specific Performance with Damages
against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty
and Development Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo,
Chito P. Rosete, Bank of the Philippine Islands (BPI), and Register of Deeds of the
Province of Mindoro Occidental, docketed as Civil Case No. Q-95-25803.5 It asked,
among other things, that the Deed of Sale executed by AFP-RSBS covering certain
parcels of lands in favor of Espreme Realty and the titles thereof under the name of the
latter be annulled; and that the AFP-RSBS and Espreme Realty be ordered to execute
the necessary documents to restore ownership and title of said lands to respondents,
and that the Register of Deeds be ordered to cancel the titles of said land under the
name of Espreme Realty and to transfer the same in the names of respondents.
On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court
has no jurisdiction over the subject matter of the action or suit and that venue has been
improperly laid.6 A Supplemental Motion to Dismiss was filed by petitioner Alfredo P.
Rosete on 23 January 1996.7 Respondents opposed the Motion to Dismiss filed by
petitioners8 to which petitioners filed their Reply.9 Respondents filed a Comment on the
Reply.10 AFP-RSBS,11Espreme Realty,12 and, BPI13 filed their respective Motions to
Dismiss which respondents opposed.
In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants were
denied.14 The Motions for Reconsideration filed by petitioners 15 and BPI,16 which
respondents opposed,17 were also denied in an Order dated 24 May 1996.18
On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-
claim19 to which respondents filed their Reply and Answer to
Counterclaim.20 Respondents also filed a Motion21 to Serve Supplemental Allegation
against BPI and petitioner Chito Rosete which the trial court granted in an order dated 28
July 1996.22
On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a Petition 23 for
Certiorari and Prohibition in the Court of Appeals, docketed as CA-G.R. SP No. 40837,
challenging the trial courts Orders dated 12 March 1996 and 24 May 1996 that denied
their Motions to Dismiss and Reconsideration, respectively.24 They likewise informed the
trial court that on 6 June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex
Abudanti Cautela.26lavvphi1.net
On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting
the Motion to Serve Supplemental Allegation against BPI and him be reconsidered and
set aside, and that respondents be ordered to reduce their supplemental allegations in
the form and manner required by the Rules of Court.27 Same was denied in an order
dated 12 August 1996.28 This denial was appealed to the Court of Appeals on 26 August
1996, which was docketed as CA-G.R. SP No. 41821.29
Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9
September 1996.30
On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination
giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of
petitioners Oscar Mapalo and Chito Rosete.31
On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take
Deposition Upon Oral Examination.32 They argued that the deposition may not be taken
without leave of court as no answer has yet been served and the issues have not yet
been joined since their Answer was filed ex abudanti cautela, pending resolution of the
Petition for Certiorari challenging the orders dated 12 March 1996 and 24 May 1996 that
denied their Motions to Dismiss and for Reconsideration, respectively. This is in addition
to the fact that they challenged via a Petition for Certiorari before the Court of Appeals
the lower courts Orders dated 23 July 1996 and 12 August 1996 which, respectively,
granted respondents Motion to Serve Supplemental Allegation Against Defendants BPI
and Chito Rosete, and for the latter to plead thereto, and denied Chito Rosetes Motion
for Reconsideration of the order dated 23 July 1996. Moreover, they contend that since
there are two criminal cases pending before the City Prosecutors of Mandaluyong City
and Pasig City involving the same set of facts as in the present case wherein respondent
Juliano Lim is the private complainant and petitioners are the respondents, to permit the
taking of the deposition would be violative of their right against self-incrimination because
by means of the oral deposition, respondents would seek to establish the allegations of
fact in the complaint which are also the allegations of fact in the complaint-affidavits in
the said criminal cases.
Respondents filed their Comment on the Objection to Deposition Taking 33 to which
petitioners filed their Reply.34
In an Order dated 22 July 1997, the lower court denied petitioners motion and objection
to take deposition upon oral examination, and scheduled the taking thereof.35 On 7
August 1997, petitioners filed a Motion for Reconsideration. 36 They filed a Supplemental
Motion for Reconsideration on 11 August 1997.37
On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the
Taking of the Deposition Upon Oral Examination.38
In an Order dated 27 August 1997, the lower court denied petitioners Motion for
Reconsideration and Supplemental Motion for Reconsideration, and scheduled the taking
of the Deposition Upon Oral Examination.39
On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer
of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito
Rosete In Default; and (3) For Reception of Plaintiffs Evidence Ex-parte,40 which
petitioners opposed.41
On 29 September 1997, petitioners filed with the Court of Appeals a Petition for Certiorari
and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court dated 22
July 1997 and 27 August 1997.42
In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the
record of the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete
for their continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules
of Civil Procedure; (2) declared defendants Mapalo and Chito Rosete in default; and I
allowed plaintiffs to present their evidence ex-parte as regards the latter.43 On 25
November 1997, petitioners filed an Urgent Ex-parte Omnibus Motion (1) For
Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation
of Plaintiffs Evidence Ex-parte.44 The day after, petitioners filed an Amended Omnibus
Motion.45
On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte Presentation
of Evidence46 which the lower court set for 11 December 1997.47
In an Order dated 11 December 1997, the lower court denied petitioners urgent ex-parte
omnibus motion.48 On even date, the ex-parte presentation of evidence against
petitioners Mapalo and Chito Rosete was terminated.49
On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition before
the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower courts Orders dated
29 October 1997 and 11 December 1997.51
On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari and
Prohibition, and upheld the Orders of the lower court dated 22 July 1997 and 27 August
1997 (CA-G.R. SP No. 45400).52 The Motion for Reconsideration53 which was
opposed54 by respondents was denied on 19 October 1998.55
Petitioners assail the ruling of the Court of Appeals via a Petition for Review on
Certiorari. They anchor their petition on the following grounds:
I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS
ORDER DATED AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT AGAINST
SELF INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE
VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN
THE LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR
DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN
PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME OR IDENTICAL SET
OF FACTS; AND
II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS
ORDER DATED JULY 22, 1997 THAT (A) THE NOTICE TO TAKE DEPOSITION UPON
ORAL EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN
ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B) JOINDER OF
ISSUES IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 2356 OF THE
RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.
Petitioners argue that the Court of Appeals gravely erred when it found that the trial court
did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo and
Chito Rosetes constitutional right against self-incrimination when, through its Orders
dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their
depositions by way of oral examination. They explain they refuse to give their depositions
due to the pendency of two criminal cases against them, namely, Batasan Pambansa
Blg. 22 and Estafa, because their answers would expose them to criminal action or
liability since they would be furnishing evidence against themselves in said criminal
cases. They allege there can be no doubt that the questions to be asked during the
taking of the deposition would revolve around the allegations in the complaint in the civil
case which are identical to the allegations in the complaint-affidavits in the two criminal
cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete.
Moreover, they explain that while an ordinary witness may be compelled to take the
witness stand and claim the privilege against self-incrimination as each question
requiring an incriminating answer is shot at him, an accused may altogether refuse to
answer any and all questions because the right against self-incrimination includes the
right to refuse to testify.
In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in
the civil case because they allegedly would be incriminating themselves in the criminal
cases because the testimony that would be elicited from them may be used in the
criminal cases. As defendants in the civil case, it is their claim that to allow their
depositions to be taken would violate their constitutional right against self-incrimination
because said right includes the right to refuse to take the witness stand.
In order to resolve this issue, we must determine the extent of a persons right against
self-incrimination. A persons right against self-incrimination is enshrined in Section 17,
Article III of the 1987 Constitution which reads: "No person shall be compelled to be a
witness against himself."
The right against self-incrimination is accorded to every person who gives evidence,
whether voluntary or under compulsion of subpoena, in any civil, criminal or
administrative proceeding. The right is not to be compelled to be a witness against
himself. It secures to a witness, whether he be a party or not, the right to refuse to
answer any particular incriminatory question, i.e., one the answer to which has a
tendency to incriminate him for some crime. However, the right can be claimed only
when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a
subpoena, decline to appear before the court at the time appointed, or to refuse to testify
altogether. The witness receiving a subpoena must obey it, appear as required, take the
stand, be sworn and answer questions. It is only when a particular question is addressed
to which may incriminate himself for some offense that he may refuse to answer on the
strength of the constitutional guaranty.57
As to an accused in a criminal case, it is settled that he can refuse outright to take the
stand as a witness. In People v. Ayson,58 this Court clarified the rights of an accused in
the matter of giving testimony or refusing to do so. We said:
An accused "occupies a different tier of protection from an ordinary witness." Under the
Rules of Court, in all criminal prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself, and
2) to testify as witness in his own behalf; but if he offers himself as a witness he
may be cross-examined as any other witness; however, his neglect or refusal to
be a witness shall not in any manner prejudice or be used against him.
The right of the defendant in a criminal case "to be exempt from being a witness against
himself" signifies that he cannot be compelled to testify or produce evidence in the
criminal case in which he is the accused, or one of the accused. He cannot be compelled
to do so even by subpoena or other process or order of the Court. He cannot be required
to be a witness either for the prosecution, or for a co-accused, or even for himself. In
other words unlike an ordinary witness (or a party in a civil action) who may be
compelled to testify by subpoena, having only the right to refuse to answer a particular
incriminatory question at the time it is put to him the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer
any question. X x x (Underscoring supplied.)
It is clear, therefore, that only an accused in a criminal case can refuse to take the
witness stand. The right to refuse to take the stand does not generally apply to parties in
administrative cases or proceedings. The parties thereto can only refuse to answer if
incriminating questions are propounded. This Court applied the exception a party who
is not an accused in a criminal case is allowed not to take the witness stand in
administrative cases/proceedings that partook of the nature of a criminal proceeding or
analogous to a criminal proceeding.59 It is likewise the opinion of the Court that said
exception applies to parties in civil actions which are criminal in nature. As long as the
suit is criminal in nature, the party thereto can altogether decline to take the witness
stand. It is not the character of the suit involved but the nature of the proceedings that
controls.60
In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary
witness, who can invoke the right against self-incrimination only when the incriminating
question is propounded. Thus, for a party in a civil case to possess the right to refuse to
take the witness stand, the civil case must also partake of the nature of a criminal
proceeding.
In the present controversy, the case is civil it being a suit for Annulment, Specific
Performance with Damages. In order for petitioners to exercise the right to refuse to take
the witness stand and to give their depositions, the case must partake of the nature of a
criminal proceeding. The case on hand certainly cannot be categorized as such. The fact
that there are two criminal cases pending which are allegedly based on the same set of
facts as that of the civil case will not give them the right to refuse to take the witness
stand and to give their depositions. They are not facing criminal charges in the civil case.
Like an ordinary witness, they can invoke the right against self-incrimination only when
the incriminating question is actually asked of them. Only if and when incriminating
questions are thrown their way can they refuse to answer on the ground of their right
against self-incrimination.
On the second assigned error, petitioners contend that the taking of their oral depositions
should not be allowed without leave of court as no answer has yet been served and the
issues have not yet been joined because their answers were filed ex abudanti cautela
pending final resolution of the petition for certiorari challenging the trial courts Orders
dated 12 March 1996 and 24 May 1996 that denied their motions to dismiss and for
reconsideration, respectively.
Section 1 of Rule 2461 of the Revised Rules of Court reads:
Section 1. Depositions pending action, when may be taken. By leave of court after
jurisdiction has been obtained over any defendant or over property which is the subject of
the action, or without such leave after an answer has been served, the testimony of any
person, whether a party or not, may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken
only in accordance with these rules. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court prescribes.
From the quoted section, it is evident that once an answer has been served, the
testimony of a person, whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. In the case before us, petitioners contend they
have not yet served an answer to respondents because the answers that they have filed
with the trial court were made ex abudanti cautela. In other words, they do not consider
the answers they filed in court and served on respondents as answers contemplated by
the Rules of Court on the ground that same were filed ex abudanti cautela.
We find petitioners contention to be untenable. Ex abudanti cautela means "out of
abundant caution" or "to be on the safe side."62 An answer ex abudanti cautela does not
make their answer less of an answer. A cursory look at the answers filed by petitioners
shows that they contain their respective defenses. An answer is a pleading in which a
defending party sets forth his defenses63 and the failure to file one within the time
allowed herefore may cause a defending party to be declared in default. 64 Thus,
petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers
despite the pendency of their appeal with the Court of Appeals on the denial of their
motion to dismiss.
Petitioners argument that the issues of the case have not yet been joined must
necessarily fail in light of our ruling that petitioners have filed their answers although the
same were made ex abudanti cautela. Issues are joined when all the parties have
pleaded their respective theories and the terms of the dispute are plain before the
court.65 In the present case, the issues have, indeed, been joined when petitioners, as
well as the other defendants, filed their answers. The respective claims and defenses of
the parties have been defined and the issues to be decided by the trial court have been
laid down.
We cannot also sustain petitioners contention that the lower court erred when it said that
the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of
Civil Procedure may be availed of. Under said section, a deposition pending action may
be availed of: (1) with leave of court when an answer has not yet been filed but after
jurisdiction has been obtained over any defendant or property subject of the action, or (2)
without leave of court after an answer to the complaint has been served. In the instant
case, the taking of the deposition may be availed of even without leave of court because
petitioners have already served their answers to the complaint.
WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of
merit.
SO ORDERED.
EN BANC
[G.R. No. L-6204. July 31, 1956.]
CAPITOL SUBDIVISION, INC., Plaintiff-Appellee, vs. PROVINCE OF NEGROS
OCCIDENTAL, Defendant-Appellant.
DECISION
REYES, A., J.:
The Provincial Hospital of Occidental Negros, located in the City of Bacolod, capital of
the province, was built in 1924 at a cost of about P200,000. But subsequent
improvements brought the total cost to more than half a million pesos.
The Hospital was erected on a parcel of land of more than 22,000 square meters
identified as lot No. 378 of the Bacolod Cadastre and claimed by the province of
Occidental Negros as its property by virtue of a deed of sale with donation executed in its
favor by Jose Benares, former owner, as a result of expropriation proceedings. It does
not appear that a transfer certificate of title has been issued to the province. But the lot
has for many years stood in the records of the assessment office as the property of the
Province or the Hospital and enjoyed exemption from the realty tax as such.
In 1949, the Capitol Subdivision, Inc., a real estate company, claiming to be the owner of
the lot, questioned the right of the Hospital to occupy it, and when its claim of ownership
was rejected, it brought the present action in the Court of First Instance of Occidental
Negros to recover possession of the lot and reasonable rents for its use. But before filing
the action, it had, in May, 1950, the lot declared in its name for assessment purposes.
It would appear that the lot in question was part of a large tract of land known as the
Hacienda Mandalagan, formerly owned by Agustin Amenabar and Pilar Amenabar. The
land consisted of several lots. In 1926 the lots were purchased by Jose Benares, who
later mortgaged them to the Philippine National Bank. The mortgage having been
foreclosed, the Bank bought the lots at a foreclosure sale and had transfer certificates of
title issued to it in 1934. In 1935 the Bank signed a contract agreeing to sell the lots to
Carlos Benares for P400,000, payable P30,000 down and the balance in ten equal
installments, the title to remain in the Bank until the price had been fully paid. In an
instrument signed on the same date, Carlos Benares, on his part, assigned to the
Subdivision the rights acquired by him under his contract with the Bank. With the
payment of the last installment in 1949, a deed of absolute sale was executed by the
Bank in favor of the Subdivision, and as a result the latter was issued the corresponding
transfer certificates of title for the lots, of which transfer certificate of title No. 1798
pertains to lot No. 378, the one here in question.
In resisting the action of the subdivision, the Province put up the defense that it had
acquired the lot in question from its former owner, Jose Benares, and that the subdivision
was aware of that fact when it bought the hacienda. In support of this defense, the
province endeavored to prove that in compliance with Act No. 3144, as amended, which
required the Province to provide a site for the hospital before the funds for its
construction could be released, the Province instituted condemnation proceedings, (Civil
Case No. 3041) in 1924 or 1925 against Jose Benares for the acquirement of the lot in
question, took possession of the same and began the construction of the hospital; chan
roblesvirtualawlibrarythat pending trial the case was amicably settled, with the Province
paying to Benares the assessed value of the lot and Benares donating to the Province so
much of the purchase price as was in excess of the assessed value; chan
roblesvirtualawlibrarythat to give effect to the settlement Benares executed a deed of
sale with donation in favor of the Province, which deed was delivered to the clerk of court
and attached to the record of the case; chan roblesvirtualawlibrarythat as a result of this
transaction the lot became the property of the province; chan roblesvirtualawlibrarythat
the court record of the case, including the deed of sale and donation, was totally
destroyed during the last war; chan roblesvirtualawlibrarythat the subdivision had
constructive notice of those facts and was therefore not an innocent purchaser, knowing
fully well that at the time it bought the lot this was already occupied by the Hospital and
the Hospital had been in full operation as a public institution for many years prior to the
date of the alleged acquisition; chan roblesvirtualawlibraryand that Mr. Alfredo
Montelibano, the controlling stockholder and president and general manager of the
subdivision, had knowledge of those facts because during his incumbency as first city
mayor of Bacolod, the city was contributing a large sum yearly for the support, operation,
and maintenance of the Hospital.
After trial, the lower court rendered judgment in favor of Plaintiff requiring
the Defendant to restore possession of the lot to Plaintiff subject to the latters right to
exercise the option granted in Article 361 of the old Civil Code and further requiring
the Defendant to pay rents from November 8, 1935, which all in all would amount to
P151,706.29. From this judgment Defendantappealed directly to this court. For some
unknown reason the record was elevated to the Court of Appeals, but that court, upon
motion of the Plaintiff-Appellee, certified the case here, for involving more than P50,000.
The questions for determination are (1) whether the Defendant had already acquired
right or title to the lot as a result of the alleged expropriation proceedings and deed of
sale with donation, and (2) whether Plaintiff had actual or constructive knowledge of such
fact at the time it bought the property.
After going over the record, we do not feel that those questions could be justly decided
on the somewhat limited evidence actually admitted by the trial court. With the record of
expropriation proceedings destroyed together with the deed of sale and donation
attached thereto, secondary proof of such proceedings and deed should have been
allowed. But presentation of that proof was effectively barred when the trial court refused
to give the provincial fiscal sufficient time to resubpoena two important witnesses, who
had failed to come on the day of the continuation of the trial for lack of notice. Those
witnesses were Mr. Jose Benares (the person from whom the Province allegedly
acquired the lot) and Mr. Ildefonso Coscolluela, who, as former treasurer of the Province,
had knowledge of such acquisition. Considering the amount of the public funds and the
public interest involved, the trial court should have granted the fiscal sufficient time to
produce the said witnesses. A delay of two or three days for that purpose would not have
amounted to much, and the plea that the adverse party was incurring heavy expenses for
its attorneys continued stay in Bacolod could have been met with a ruling that those
expenses, if reasonable, should be taxed against the party that caused them. Liberality
should be exercised in granting postponements of trial to obtain presence of material
evidence and to prevent miscarriage of justice. (Canal Oil Co. vs. National Oil Co. Cal
Appeal, 66 P. 2d 197.) A litigant is entitled to reasonable delay and opportunity to get his
witnesses. (Moran vs. Leone, 129 So. 398, 1, Aa. App. 45; chan
roblesvirtualawlibraryEndnote:chanroblesvirtuallawlibrary 82, 17 C.J. S. 224.) While
the granting or refusal of motions for continuance is discretionary. that discretion must be
exercised wisely with a view to substantial justice.
Other evidence of vital importance to the case also appears to have barred.
On the question of the subdivisions good or bad faith, Mr. Montelibano, the president
and general manager and controlling stockholder of the Subdivision, pretends that the
Subdivision had no knowledge of the expropriation or deed of sale with donation at the
time it bought the land. The fiscals efforts to cross-examine him on those matters were
frustrated by Plaintiffs counsels objections and the trial courts rulings sustaining those
objections. The court reasoned that Mr. Montelibano was then on the stand as Plaintiffs
own witness and could not be questioned in such a way as to make him to
the Defendants witness. But the fact alone that Mr. Montelibano was then testifying
as Plaintiffs witness is no justification for not permitting the fiscal to cross-examine him
on any matter that would elicit all important facts bearing on the issue. As former Chief
Justice Moran puts it
In this jurisdiction, section 87 above quoted provided that the adverse party may cross-
examine a witness for the purpose among others, of eliciting all important facts bearing
upon the issue. From this provision it may clearly be inferred that a party may cross-
examine a witness on matters not embraced in his direct examination. But this does not
mean that a party by doing so is making the witness his own accordance with section
83. (III Moran, Rules of Court, 3rd ed. 587.)
The trial court refused to allow the witness Jose Marco, a former deputy clerk of court, to
say anything about the expropriation proceeding in question on the excuse that his
testimony on this matter would be immaterial and incompetent. The loss of the records of
said expropriation proceeding had already been established, and section 51, Rule 123,
expressly permits proof by secondary evidence.
The trial court, after thus preventing Defendant from proving the existence of the
expropriation case through the testimony of Jose Marco, willingly acceded to the
presentation in rebuttal of a witness who testified to the non-existence of the said
expropriation case, thus permitting Plaintiffto prove in rebuttal what he had
refused Defendant to substantiate in defense.
The trial court appears to have had no justification in refusing to admit most of the
exhibits offered in evidence for the Defendant. Those exhibits have direct bearing on the
issue of ownership.
In fine, we are persuaded that the interests of justice demand that there be further trial in
this case.
Wherefore, the judgment appealed from is set aside and the case ordered remanded to
the court of origin for further trial in order that the Defendant may have an opportunity to
fully prove its case, with equal opportunity to the Plaintiff to meet such further evidence
as the Defendant may present, it being understood that the evidence already taken need
not be reintroduced. No pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Endencia, and Felix, JJ., concur.
[A.M. No. P-02-1555. April 16, 2004]
OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. ATTY. EDGAR ALLAN
C. MORANTE, Clerk of Court, Regional Trial Court, Las Pias City, Branch
275, respondent.
DECISION
PER CURIAM:
This case stemmed from an anonymous letter dated September 10,
2001 addressed to the Chief Justice from CONCERNED LAW PRACTITIONERS.[1] The
letter brought to his attention the alleged corrupt acts/practices of respondent Edgar Allan
Morante, Branch Clerk of Court of the Regional Trial Court, Las Pias City, Branch
275. Attached to the letter was a news clipping that appeared in the September 10,
2001 issue of The Metro Daily Tribune, entitled NBI Agents Nab Las Pias Clerk of Court
for Extort.[2] The news item reported that the respondent was caught by government
agents in the act of receiving some P.2 million to fix a court decision.[3]
In a First Indorsement dated September 24, 2001, the matter was referred to the
Office of the Court Administrator (OCA) for appropriate action.[4]
The OCA requested National Bureau of Investigation (NBI) Director Reynaldo G.
Wycoco, through Special Action Unit Head Atty. Vicente de Guzman, for a copy of its
investigation report and its annexes on the Morante extortion case, and to inform the said
office whether the filing of administrative/criminal cases against the subject was
recommended.[5] On January 28, 2002, Deputy Court Administrator Christopher Lock
submitted his memorandum on the matter to the Court.
The Court thereafter issued a Resolution dated February 19, 2002, re-docketing the
instant case as A.M. No. P-02-1555,[6] suspending the respondent effective immediately
pending the investigation of the case, and referring the administrative matter to Justice
Narciso Atienza, Consultant, Office of the Court Administrator, for investigation, report
and recommendation.[7]
Pursuant to the Courts resolution, Justice Atienza conducted a formal investigation
of the case.[8] In due course, the Investigating Justice submitted his report to the Court
on January 15, 2003, finding the respondent guilty of grave and serious misconduct and
recommending that the respondent be dismissed from the service with forfeiture of all
benefits, with prejudice to his appointment in any branch of the government or its
agencies or instrumentalities.
The Case for the Complainant[9]
Tetsuo Momma, a Japanese citizen, was the president of the Montec International
Corporation with principal offices at Lot 2, Block 21, Phase III, Cavite Export Processing
Zone Authority, Rosario, Cavite. He employed Jose Joey Olavere as his executive
secretary, who also acted as his personal interpreter.
Luz Amper filed a criminal complaint against Momma, her former employer, for libel
with the Las Pias City Prosecutor. After the requisite preliminary investigation, an
information for libel was filed against Momma on January 28, 2000 with
the Regional Trial Court of Las Pias City, docketed as Criminal Case No. 00-0117. The
case was raffled to Branch 255 of the court, presided by Judge Ambrosio Alumbres
whose pairing judge was Judge Bonifacio Sanz Maceda, the Presiding Judge of Branch
275 of the court.Momma posted a cash bail bond of P80,000. On March 29, 2000, the
court issued a hold departure order against him.
 In the meantime, Momma filed a petition for review of the resolution of the Las Pias
City Prosecutor finding probable cause for libel against him. On November 7, 2000, the
Secretary of Justice issued a resolution granting Mommas petition for review, reversing
the resolution of the City Prosecutor, and directed the latter to file a motion to withdraw
the information, and to inform the Secretary of Justice of his action thereon within ten
days from notice. Private complainant Luz Amper, through counsel, filed a motion for the
reconsideration of the resolution of the Secretary of Justice, but the latter issued a
Resolution on January 12, 2001 denying the said motion. She forthwith filed a petition
for certiorari with the Court of Appeals (CA), entitled Luz Amper v. Secretary of
Justice[10] for the nullification of the said resolution. However, the CA did not issue any
temporary restraining order against the respondents and thereafter dismissed the
petition.
On December 1, 2000, Momma filed a letter-complaint with the Court against Judge
Ambrosio Alumbres, alleging, inter alia, that the Judge pressured him into settling the
libel case for P7,000,000. According to Momma, the Judge would even call his
representative to his chambers in an effort to convince him to settle the case. When he
refused, the Judge agreed to reduce the offer to P3,000,000.00. He also complained that
the Judge was eager to issue warrants for his arrest although there were no valid
reasons therefor. He asked the Court to help him have an impartial judge to decide the
libel case.[11]
On December 2, 2000, Olavere, in behalf of Momma, filed a motion with the RTC
Branch 255, for the inhibition of the presiding judge.[12] Acting on the complaint of
Momma, the OCA wrote him on February 5, 2001, requesting that his complaint be
executed under oath within ten days. Momma complied with the request.
On March 12, 2001, the State Prosecutor filed a motion with the trial court in
Criminal Case No. 00-0117 for the withdrawal of the information, conformably with the
resolution of the Secretary of Justice, and the lifting of the hold departure order. Momma,
through his counsel Atty. Roberto Garay, filed a motion on April 17, 2001 for the release
of his cash bail bond in the amount of P80,000. Because the private complainant was not
notified of the hearing of the public prosecutors motion on May 2, 2001, the court reset
the hearing to May 16, 2001, and then reset it anew to June 25, 2001.
On June 3, 2001, Judge Ambrosio Alumbres, Presiding Judge of Branch 255,
retired from office. Executive Judge Manuel Fernandez designated Judge Bonifacio Sanz
Maceda, the pairing Judge of Branch 255, as Acting Presiding Judge thereof.
Judge Maceda at times required Ms. Joselita P. Macaldo, Officer-In-Charge (OIC)
of the Office of the Deputy Clerk of Court of Branch 255, to make a case summary or a
preliminary statement of pending incidents thereon before resolving the same. She also
prepared drafts of orders for Judge Macedas approval and signature, and the latter
would either approve the draft and sign the same, or revise it, in which case, the order
would be typewritten in Branch 255. Macaldo would then affix her initials below the
typewritten name of Judge Maceda before the latter signed the Order.
On June 25, 2001, Momma filed a motion for the lifting of the hold departure
order. The said motion was set for hearing on July 2, 2001. Conchita Blanza,
Stenographer, Branch 255, RTC, Las Pinas, recorded the proceedings of the hearing.
Judge Maceda issued an Order stating that the pending incidents had been submitted for
the resolution of the court. On July 3, 2001 OIC Macaldo transmitted the records of
Criminal Case No. 00-0117 to respondent Atty. Edgar Allan C. Morante, who was the
Deputy Clerk of Court of Branch 255, for the resolution by Judge Maceda of the pending
incidents.
Olavere and Mommas counsel, Atty. Garay, followed up the case with the
respondent several times for the early resolution of the pending incidents
therein. According to Olavere and Momma, the ninety-day period for the resolution
thereof had long since elapsed.
On August 20, 2001, Atty. Garay arrived in the house of Olavere, and informed the
latter that the respondent had a message: if Olavere wanted a favorable decision in the
libel case against Momma, he, Olavere, would have to talk with the respondent to make
arrangements with the Judge. Olavere forthwith saw the respondent in the latters office
at the Justice Hall in Las Pias City. The respondent told Olavere that he, the respondent,
could have the case against Momma dismissed by Judge Maceda if Momma was willing
to come across with P250,000.
When Olavere relayed the respondents message to Momma, the latter replied that
he would have to see the order of dismissal first. Olavere, in turn, relayed Mommas
message to the respondent, and the latter told Olavere that Momma would have to
pay P50,000 in exchange for an unsigned copy of the order of dismissal of the court. The
balance of P200,000 would then be paid to the respondent upon delivery to Olavere of
the order of dismissal bearing the signature of Judge Maceda. Olavere informed Momma
of the respondents message. The two agreed to report the matter to the NBI, so that the
respondent could be apprehended in flagrante delicto.
On August 27, 2001, Momma arrived at the NBI where he executed a complaint-
affidavit against the respondent for robbery/extortion. The said affidavit was subscribed
and sworn to before Atty. Timoteo Pineda, Jr., the Executive Officer of the Special Action
Unit of the NBI. In the said complaint-affidavit, Momma alleged, inter alia, that the
respondent had requested him to produce P250,000 in exchange for the courts favorable
decision in the libel case.[13] It was also alleged that Momma and Olavere agreed to
give P50,000 in consideration for the unsigned order dismissing Criminal Case No. 00-
0117.
At about 11:00 a.m. on August 28, 2001, Olavere saw the respondent in his office
at the second floor of the Justice Hall in Las Pias City. The other court personnel were
then having lunch. Olavere gave the P50,000 to the respondent who then gave Olavere
an unsigned copy[14] of the Order dated July 19, 2001 granting the motion to withdraw
information filed by the State Prosecutor, Mommas motion for the release of his cash
bond, as well as the lifting of the hold departure order. The respondent told Olavere that
he would call him as soon as the order had already been signed by Judge Maceda. In
the afternoon of the same day, Olavere proceeded to the Special Action Unit of the NBI
and gave a sworn statement to Senior Agent Nelson Pacada, alleging, inter alia, that the
respondent had demanded P250,000 in exchange for the order of dismissal of the libel
case against Momma, and that he, Olavere, had already given P50,000 to the
respondent earlier that morning in exchange for an unsigned order of the dismissal of the
libel case, the balance payable to the respondent upon delivery by him of the order of
dismissal duly signed by Judge Maceda.[15] Olavere gave the NBI the unsigned Order he
earlier received from the respondent.[16]
Momma and NBI Agent Pineda decided to conduct an entrapment operation
against the respondent at his office. Momma gave four P500 bills to Pineda bearing
Serial Numbers RU582077, RU582078, SW730103 and TX016250 for the
operation.[17] Pineda requested NBI Forensic Chemist, Felicisima Francisco, to subject
the four bills contained in the white envelope to fluorescent powder
markings.[18] Francisco also dusted the white envelope with fluorescent powder. She then
returned the bills and the white envelope to Pineda. The latter, in turn, placed the
four P500 bills on top of other peso bills amounting to P198,000. Since the bills were so
bulky, Pineda placed the P200,000 in a brown envelope and sealed the same. The
forensic chemist, however, did not dust the envelope with fluorescent powder.
In the meantime, Olavere was able to talk with the respondent over the telephone a
couple of times. They agreed that Olavere would deliver the balance of P200,000 to the
respondent at his office in the morning of August 31, 2001. In exchange, the respondent
would give Olavere the order dismissing the case bearing the signature of Judge
Maceda.
 On August 29, 2001, Judge Maceda signed an Order granting the Motion to
Withdraw Information, the State Prosecutors Motion to Lift Hold Departure Order, as well
as Mommas motion for the release of his cash bond of P80,000. The respondent affixed
his initials on the order below the typewritten name of Judge Maceda. [19] Instead of
returning the records of Criminal Case No. 00-0117 to Branch 255 of the RTC for the
release of the said order, the respondent kept the said records, including the order of
Judge Maceda, and waited Olavere to return with the P200,000.
When Olavere informed Pineda that the respondent had agreed to a meeting in the
morning on August 31, 2001 for the payoff, Pineda called the other NBI agents to a pre-
entrapment conference and agreed on the mechanics of the operation. Olavere and
Pineda agreed that they would proceed to the office of the respondent; Olavere would
carry the brown envelope containing the P200,000, while the NBI agents would position
themselves strategically nearby. Immediately after delivering the envelope with the
money to the respondent, Olavere will give the pre-arranged signal. The NBI agents
would then enter the office of the respondent, take him into custody and confiscate from
him the P200,000.
Shortly before noon of August 31, 2001, Olavere and NBI Agents Timoteo Pineda,
Jr. Marlon Toleda, Joel Toresa, and Dante Sonbar arrived at the second floor of the
Justice Hall in La Pias City. Judge Maceda was absent because he was ill. The agents
strategically positioned themselves outside the office of the respondent, while Olavere,
with the brown envelope containing P200,000, proceeded to the latters office. The
respondent met Olavere outside the office and brought him inside. The respondent then
gave Olavere a copy of the Order in the libel case signed by Judge Maceda,
dated August 29, 2001.[20] Olavere handed over to the respondent the brown envelope
containing the P200,000 and gave the pre-arranged signal to the NBI agents who were
waiting outside. Instead of opening the envelope and counting the money contained
therein, the respondent placed the envelope on top of his table.
When the NBI agents heard Olaveres pre-arranged signal, they entered the office
of the respondent. They saw the brown envelope containing the P200,000 on the
respondents table. They took custody of the respondent and the brown envelope,
including the money inside. The NBI agents informed the respondent of his constitutional
rights and brought him to the NBI headquarters in Taft Avenue, Manila, where he was
placed under arrest.[21] The chemist was unable to examine the brown envelope which
contained the bribe money because the NBI agents failed to deliver the same to her.
Olavere gave a sworn statement to NBI Agent Toledo. [22] The NBI agents executed
their joint affidavit of the respondents arrest.[23] On the same date, the NBI Director
transmitted to Inquest Prosecutor Roberto D. Lao of the Department of Justice the
complaint of Momma and Olavere charging the respondent of violating Section 3(b) in
relation to paragraph (c) of Republic Act No. 3019.[24] The respondent submitted his
counter-affidavit[25] and rejoinder[26] during the preliminary investigation. The respondent
was later charged of violating Rep. Act No. 3019 in an Information filed with the RTC of
Las Pias City, docketed as Criminal Case No. 02-0317.
The Case for the Respondent[27]
The respondent vehemently denied the charges hurled against him. He adopted the
counter-affidavit he submitted to the Inquest Prosecutor as his testimony on direct
examination before the Investigating Justice. His version of the incident is as follows:
When Judge Bonifacio Sanz Maceda of RTC, Branch 275 took over the numerous
cases pending before the sala of Judge Alumbres after the latter retired as Presiding
Judge of RTC, Branch 255, an inventory of cases revealed that there were 143 cases
with pending incidents; 91 cases submitted for decision which were already beyond the
reglementary period for issuing an order, resolution or decision, and 891 other pending
cases. The office was deluged by calls from party litigants, their representatives, as well
as their respective counsels, who were eager to follow up the status of their respective
cases and seek the speedy resolution thereof. One case being followed up with unusual
persistence was the criminal case for libel against Momma. The respondent met Atty.
Roberto Garay during the third or fourth week of June 2001 when the latter followed up
the resolution of the pending incidents. He met Jose Joey Olavere, who introduced
himself as an employee of Momma and followed-up the resolution of the motion to lift
hold departure order, the motion to withdraw information filed by the State Prosecutor
and Mommas motion for the refund of the cash bond then pending before Branch 255 of
the RTC.
Olavere began telling stories that his employer had already spent
almost P1,000,000 to settle or dispose of the said libel case, particularly the hold
departure order issued by the court. Olavere showed to him a list containing the names
of the recipients and the amounts received by each: Judge, P300,000; Clerk of
Court, P100,000; sheriff, P20,000; fiscal, P50,000. Olavere even admitted that he was
being paid a bonus for the arrangements that he had facilitated with the said officials. He
also revealed that Momma wanted to go back to Japan to visit his father who was
seriously ill.[28]
Because of his employers apparently precarious situation, Olavere requested the
respondent to intercede for his employer so that the criminal case against the latter could
be resolved in the soonest possible time. The respondent replied that Judge Maceda was
a very strict presiding judge, and that it was impossible to influence him in the resolution
of cases. He also told Olavere that he was going to do his best to help, but emphasized
that he was not promising anything.
After this first visit, Olavere came to his office several more times. Olavere and Atty.
Garay also started calling the said office frequently. It got to a point where the
respondent evaded their calls.[29]
The respondent denied that he received the sum of P50,000 from Olavere in
exchange for an unsigned Order dated July 19, 2001. He denied ever preparing and
giving the said unsigned order to Olavere. He alleged that although Judge Maceda often
asked him to prepare a preliminary study of the facts and legal issues in pending cases,
the Judge did not ask him to prepare any order in Criminal Case No. 00-0117. He
claimed that the records of Criminal Case No. 00-0117 were inside the chambers of
Judge Maceda from July to August 2001.
At around 9:00 a.m. of August 28, 2001, Olavere arrived in his office and asked the
respondent if there was already an order lifting the hold departure order issued against
his employer duly signed by Judge Maceda. He replied in the negative. He was in a hurry
at the time because he had an appointment with the City Legal Officer, Atty. Zardi Melito
Abellera. Before he left the office, he advised Olavere to check the matter out with
Branch Sheriff Josefino Ortiz.[30] Sheriff Ortiz heard him say, Theres no resolution yet.
Better follow up with Branch 255.[31] Olavere then told him that he would be back on
Friday to find out if an order had already been issued. There was no talk about
money.[32]The respondent was accompanied by Branch Sheriff Josefino Ortiz, and they
arrived in Atty. Abelleras office at about 9:15 a.m. Ortiz stood by the door to the office of
Atty. Abellera during the meeting. The meeting, where they talked about the budget for
the offices and the newly appointed judges, lasted until about 11:30 a.m.[33] Thereafter,
the respondent and Ortiz had lunch together.[34]
In the morning of August 29, 2001, the respondent arrived in his office and saw a
draft of an order for Judge Macedas review bearing his corrections. The said order was
appended to the records. The respondent corrected the draft and gave the records to the
stenographic reporter for the typing of the final draft. The next day, August 30, 2001, he
saw the Order dated August 29, 2001, already signed by Judge Maceda. However, the
respondent did not transmit the records to the Branch Clerk of Court, Branch 255 for the
release of the Order.
On or about 11:20 a.m. on August 31, 2001, Olavere again came to his office to
follow up the libel case. He stood up and went inside Judge Macedas chambers to get a
copy of the order, which he knew had already been signed the day before.[35] At
around 11:30,[36] he summoned RTC Sheriff Roberto Galing of Branch 255 to have the
order certified by OIC Joselita R. Macaldo of Branch 255. Sheriff Galing had the copy of
the order certified by Macaldo, and handed the same to him. The respondent, in turn,
gave a copy of the Order to Olavere. The respondent also made the latter acknowledge
the receipt of the said copy in the original copy of the order retained for the court
file.[37]Olavere read the order, then placed it inside his bag as he stood in front of the
respondents desk. The respondent noticed that Olavere was pulling out a bulky brown
envelope, about 8x11 inches in size. Olavere placed the envelope on top of the
respondents desk. The latter immediately said, Ano yan?[38]
Court Process Server Leon Matienzo of RTC, Branch 255, had entered the office to
inform the respondent that he was able to get a schedule for the civil service examination
and stood in front of the copy machine located beside the respondents table. Matienzo
heard the respondent say, Ano yan? as the latter pointed to a thick brown envelope on
his table.[39] Matienzo told him, Boss, excuse me po, ipapa-alam ko lang na nakapag pa-
schedule na kami para sa civil service exam, to which the latter replied, Okay. Matienzo
then left the room to have his lunch.[40]
The respondent turned his attention back to Olavere and repeated his query about
the envelope, Ano yan? Bakit may letterhead pa yan ng Garay Law Office? Olavere
replied, Eh galing kay Garay yan, e![41] Suddenly, a group of about eight persons barged
into the office, approached his desk and introduced themselves as agents of the
NBI.They surrounded the desk and one of them took hold of the brown envelope. The
seal was removed and the envelope was opened in front of the respondent. The latter
saw that the envelope contained bundles of money.[42] Realizing that the respondent had
not picked up the envelope, much less touched the money contained therein, one of the
NBI agents positioned to grab his right hand and tried to place it inside the envelope, in
an apparent attempt to mark it with the fluorescent powder with which the money was
previously dusted.[43] The apparent attempt to mark the respondents right hand was
foiled by the timely entry of Leticia B. Agbayani, the Branch Stenographer, who
immediately shouted, Whats happening here? Anong nangyayari dito? to which the
respondent replied, Entrapment daw![44] Agbayani asked, Anong inilagay? Hinawakan mo
ba? to which the respondent replied, Hindi, hindi ko hinawakan. She then told the NBI
agents, You mean to say that you can entrap anybody when somebody (sic) put an
envelope on top of your table? When she inquired where the envelope was, a certain
Atty. Pineda replied, It was already secured.[45]
People began to gather in the office. One of them, Branch Sheriff Josefino Ortiz,
pointed to the NBI agents for setting him up, and asked to accompany the latter to the
NBI Headquarters in Manila. At this point, Olavere informed the respondent that he was
also a confidential agent of the NBI and showed his identification card.[46] The group left
the office at around 12:00 noon. They boarded a pick-up truck together with Atty. Pineda
and a certain Atty. Bonoan. They arrived at around 1:30 in the afternoon. The respondent
underwent interrogation and testing for fluorescent powder marks.[47] While he was being
questioned at the NBI office, he noticed a foreign-looking individual who was freely going
in and out of the office of NBI Division Chief Atty. De Guzman. He later came to know
that the man was in fact Tetsuo Momma.[48] Momma was apparently a very influential
individual at the NBI as he was also seen conversing and laughing with Olavere and Atty.
De Guzman.[49]
According to the respondent, the case against him was weakened by Olaveres
execution of an affidavit retracting his sworn statement and supplemental statement to
the NBI, the latters testimony, and by the affidavit of desistance executed by Momma
dated March 5, 2001.
The Issues
The issues for resolution in this case are the following: (a) whether or not the
complainant adduced substantial evidence to prove that the respondent gave the
unsigned Order dated July 19, 2001 to Olavere on August 28, 2001 after
receiving P50,000 from the latter; (b) whether or not the respondent promised and
agreed to give to Olavere onAugust 31, 2001 a certified copy of the August 28, 2001
Order signed by Judge Bonifacio Maceda and in consideration of P200,000; (c) whether
or not the respondent received the brown envelope containing P200,000 from Olavere on
August 31, 2001 after giving to Olavere the certified copy of the August 28, 2001 Order
signed by Judge Maceda; and, (d) whether the respondent is guilty of grave and serious
misconduct in office.
The Ruling of the Court
On the first issue, the respondent asserts that in administrative cases, where the
acts subject of the complaint are criminal in nature such as bribery or violation of Rep.
Act No. 3019, the quantum of proof required is proof beyond reasonable doubt. The
respondent asserts that the complainant failed to adduce evidence to prove beyond
reasonable doubt that he demanded P50,000 in consideration for the delivery of
an unsigned order granting the motion of the State Prosecutor for the withdrawal of the
Information and for the granting of the motion for the lifting of the hold departure order,
and that he actually gave to Olavere on August 28, 2001 an unsigned order after
receiving P50,000 from him. The respondent contends that the affidavit-complaint of
Momma was hearsay because the latter failed to testify. He also asserts that Olaveres
claim, as contained in his affidavit, that he had an agreement with the respondent to
give P50,000 in consideration of an unsigned order, is belied by Olaveres testimony
during the investigation, that the agreement was for the delivery of a signed copy of the
Order to Olavere. Furthermore, Toledos allegation that Olavere arrived in the NBI
on August 27, 2001 is belied by the latters testimony that it was only on August 28,
2001 when he made a report to the NBI. The respondent concludes that Olavere could
not have given him P50,000 on August 28, 2001 because Olavere admitted that it was
entirely possible that he did not give the P50,000 to the respondent but pocketed the
money himself.
The contention of the respondent does not persuade.
In Office of the Court Administrator v. Judge Bautista,[50] this Court, citing its ruling
in Mamba v. Garcia,[51] held that in administrative proceedings only substantial evidence,
or that amount of relevant evidence which a reasonable mind might accept as adequate
to support a conviction, is required. Evidence to support a conviction in a criminal case is
not necessary, as the standard of integrity demanded of members of the Bench is not
satisfied which merely allows one to escape the penalties of criminal law.The dismissal of
any criminal case against the respondent in an administrative case, for the prosecutions
failure to prove his guilt beyond reasonable doubt, is not a ground for the dismissal of the
administrative case. The affidavit-complaint[52] of Momma was admitted by the
Investigating Justice as part of the testimony of Toledo and Olavere and, more
specifically, Momma submitted the said affidavit-complaint against the respondent to the
NBI and subscribed and swore to the truth of its contents before Toledo.[53]
The complainant adduced substantial evidence that the respondent himself gave to
Olavere the unsigned order[54] after receiving P50,000 from the latter. As gleaned from
Olaveres affidavit, the respondent gave the unsigned order to him in the morning
of August 28, 2001 after he had given P50,000 to the respondent.
T: Papaano naman aayusin ni ATTY. MORANTE ang kaso?
S: Sinabi niya sa akin na mapapadismiss niya ang kaso ng boss ko bastat
magproduce lang ako ng P250,000. Sinabi ko ito sa boss ko pero ang
sabi niya, gusto niyang makita ang papeles.
T: Ano ang nangyari pagkatapos?
S: Ang sabi ni ATTY. MORANTE magbigay ako ng P50,000 kapalit ang
walang pirmang papeles at pagkatapos yong balanseng P200,000 ay
itatawag niya sa akin.
T: Pumayag ba naman ang boss mo?
 S: Opo, sa katunayan ay binigay ko na kaninang umaga ang P50,000 at
itatawag ni ATTY. MORANTE sa akin kapag pirmado na ang desisyon
para maibigay ko ang balanseng P200,000.
T: Mayroon ibinigay bang papeles si ATTY. MORANTE?
S: Opo, ito pong walang pirmang Order ni Judge MACEDA. (Affiant submits
an unsigned six-page Order dated July 19, 2001 under Judge
BONIFACIO SANZ MACEDA, RTC, Branch 255, Las Pinas City marked
as Annexes A to A-5).[55]
We reject respondents contention that Olavere was impeached as a witness, and
that the entirety of his sworn statement and supplemental statement to the NBI and his
testimony during the investigation was weakened, merely because in answer to one of
the questions of respondents counsel on cross examination, Olavere stated that he went
to the office of the respondent on August 28, 2001 with the intention of getting a signed
copy of the Order of Judge Maceda,[56] contrary to his earlier declaration in his sworn
statement that he was at the office of the respondent on the said date, with the intention
of getting an unsigned order. We find no basis for the respondents assertion that since
the case against him is based principally on Olaveres testimony and sworn statement,
the complaint against him must be dismissed.
It is true that in response to one of the questions of the respondents counsel on
cross examination on whether Olavere had intended to secure an unsigned order from
the respondent on August 28, 2001, Olavere declared that he was expecting a signed
order from the respondent. Indeed, the answer of Olavere contradicts his sworn
statement to the NBI in which he stated that he went to the office of the respondent
on August 28, 2001 to get an unsigned order. It bears stressing, however, that in answer
to the subsequent questions on cross examination, Olavere testified that he intended to
secure an unsigned decision from the respondent on August 28, 2001, thereby
corroborating his sworn statement.[57]
To determine the credibility and probative weight of the testimony of a witness, such
testimony must be considered in its entirety and not in truncated parts. To determine
which contradicting statements of a witness is to prevail as the truth, the other evidence
received must be considered. In People v. Ubia,[58] the Court held that contradicting
testimony given subsequently does not necessarily discredit the previous testimony if the
contradiction is satisfactorily explained. There is no rule which states that a previous
testimony is presumed to be false merely because a witness now says that the same is
not true. A testimony solemnly given in court should not be lightly set aside. Before this
can be done, both the previous testimony and the subsequent one should be carefully
scrutinized in other words, all the expedients devised by man to determine the credibility
of witnesses should be utilized to determine which of the two contradicting testimonies
represents the truth.
Also, under Rule 132, Section 13 of the Revised Rules of Court, a witness may be
impeached by showing that such two contradicting statements are under oath. However,
in order to impeach Olaveres testimony to be inconsistent with the sworn statement, the
sworn statement alleged to be inconsistent with the subsequent one should have been
shown and read to him and, thereafter, he should have been asked to explain the
apparent inconsistency. This was not done in this case, and the respondent cannot
derive any benefit from the supposed contradiction in Olaveres testimony.[59] We reiterate
our own ruling in People v. De Guzman:[60]
In People vs. Resabal, this Court explicitly ruled that the mere presentation of the prior
declarations of a witness without the same having been read to the witness while he was
testifying in court is insufficient for the desired impeachment of his testimony. As
explained therein, the apparent contradiction between the declarations of the witness
before the former justice of the peace court and those before the then court of first
instance was insufficient to discredit him since he was not given ample opportunity, by
reading to him his declarations before the lower court, to explain the supposed
discrepancy.
The rule which requires a sufficient foundation to be first laid before introducing evidence
of inconsistent statements of a witness is founded upon common sense and is essential
to protect the character of a witness. His memory is refreshed by the necessary inquiries,
which enables him to explain the statements referred to, and to show that they were
made under a mistake, or that there was no discrepancy between them and his
testimony.
It would be unjust to complainant at this stage to be declared an incredible witness as a
result of the unauthorized procedure adopted by appellant. It is evidentiarily proscribed to
discredit a witness on the bases of purportedly prior inconsistent statements which were
not called to the attention of that witness during the trial, although the same are
supposedly contained in a document which was merely offered and admitted in its
entirety without the requisite specifications.
Through such a somewhat underhanded recourse, a party can expediently offer in
evidence at the trial the whole document containing allegedly variant statements and
then point out much later on appeal the supposed contradictory statements which were
not specified, intentionally or otherwise, in the same trial. That sub silentio gambit would
necessarily deprive a witness of the chance to explain the seeming divergencies, which
is the paramount consideration of the rule mandating the laying of the proper predicate.
Complainant is undoubtedly the person best suited and mandated by the rule to explain
the supposed differences in her statements. Without such explanation before us, whether
plausible or not, we are left with no basis to evaluate and assess her credibility on the
rationale that it is only when no reasonable explanation is given by a witness in
reconciling his conflicting declarations that he should be deemed impeached. As things
stand before us and the court a quo, therefore, complainants credibility remains
unimpeached.
On the foregoing considerations, we confirm the validity of the doctrine articulated by the
Court of Appeals in Villaruel vs. Bascon that, unless the proper predicate is laid during
the trial by calling the attention of a witness to his alleged inconsistent statements given
outside of his testimony in court and asking him to explain the contradiction, the
supposed inconsistencies cannot be pointed out on appeal for the purpose of destroying
the credibility of the witness. This pronouncement was actually based upon and in line
with the holdings of this Court in Escosura and People vs. Lim Quingsy.
We have calibrated, in light of the other evidence on record, the entirety of Olaveres
testimony on cross-examination and have arrived at the conclusion that, indeed, Olavere
intended to receive an unsigned Order of Judge Maceda from the respondent on August
28, 2001. The evidence on record shows that when Olavere arrived at the respondents
office on August 28, 2001, he received the unsigned order from the respondent after the
latter had received the P50,000. We, therefore, rule that Olavere was not impeached as
a witness and his sworn statement rendered of no probative weight merely because of
his erroneous answer to one of the questions of respondents counsel on cross-
examination. We also note that the Investigating Justice gave credence and full probative
weight to the sworn statement of Olavere, that he received the unsigned order [61] from
the respondent on August 28, 2001.
The probative weight of the sworn statement of Olavere that the respondent gave
him the unsigned Order on August 28, 2001 cannot be overcome by the latters bare
denials.
This Court is convinced, as the Investigating Justice was, that the respondent
himself prepared the unsigned order. The evidence on record shows that the respondent,
as the Deputy Clerk of Court of Branch 275, received from Macaldo, the Branch Clerk of
Court of Branch 255, the records of Crim. Case No. 00-0117 on July 3, 2001, as Judge
Maceda was to resolve the pending incidents, including the Motion to Resolve Ex-Parte
Omnibus Motion to Quash, Lift Hold Departure Order and to Recall Warrant of Arrest and
Release Bond filed by the State Prosecutor. After receiving the records of the case from unsigned order reads Luspo vs. Mogue, while in the signed order the authority cited
Macaldo, the respondent kept the same in his custody. The respondent failed to adduce reads, Crespo vs. Mogul, 151 SCRA 462. The cited authority which reads Luspo vs.
credible evidence that he parted with the records from July 3, 2001 to August 28, Mogue can be concocted only by a devious mind. Par. 2, p. 3 to p. 4, of the unsigned
2001 and turned over the same to Judge Maceda. order is similar to par. 1, p. 2 of the signed order; and, the last paragraphs of both the
Even a cursory reading of the unsigned Order will show that it contained facts unsigned and signed orders are the same.
culled from the records of Criminal Case No. 00-0117. As the records were in the The respondent resorted to twisting the testimony of Olavere to prove his claim that
custody of the respondent, only he could have prepared the said order. Moreover, on the the latter pocketed the P50,000 intended for the respondent.
last page, on the left bottom side of the order, contain the initials of the stenographic When asked by counsel for the respondent if it was possible that he, Olavere, did
reporter who typed the said order, followed by the initials of the respondent himself: not give the P50,000, Olavere testified it was possible, but insisted that he gave the
EACM corresponding to his full name, Edgar Allan C. Morante. We agree with the same to the respondent:
perceptive disquisitions of the Investigating Justice in his Report to this Court on the utter ATTY. MORALES-PADUA:
untenability of the respondents bare denial, thus: Q: And then you reported to Mr. Momma that the amount of P50,000.00 was
The denial of the respondent, and even a thousand more, cannot alter the fact that his received by Mr. Morante?
initial eacm which stands for Edgar Allan Ching Morante and the initial of one of the A: Of course.
stenographers of Branch 275 which reads, cgl appeared at the left bottom portion of the Q: He takes (sic) your word for it?
last page of the unsigned order (Exhibit B-5, p. 131, Rollo). The stenographer A: Yes.
with cglinitial appeared to be the favorite stenographer of Judge Maceda as shown by the Q: It is possible that you did not give it to Mr. Morante? You just told Mr.
fact that all the orders that the judge issued which were marked as Exhibits H to H-23, Momma that you gave it to Mr. Morante. Is that not possible?
only Exhibit H-22 did not bear said initial. The initial of the respondent eacm that A: It is possible, but I gave it to Mr. Morante.
appeared in the unsigned order is a mute but a very persuasive and convincing witness Q: And it is also possible that you pocketed the money?
that, indeed, the unsigned order was prepared by him (respondent) and, he was the one A: That is impossible, I will not do that.
who gave it to Olavere in exchange of the Fifty Thousand (P50,000.00) Pesos. Moreover, Q: It is possible.
the signed order except for two or three significant paragraphs was bodily lifted from the A: I will not do that to my boss.
unsigned order. The signed order also bore the initial (cgl) of the same stenographer at Q: When you alleged you gave the money to Atty. Morante, you did notify the
the bottom of the last page and of the respondent below the typewritten name, NBI?
BONIFACIO SANZ MACEDA (TSN, p. 6, Nov. 8, 2002).[62] A: After I gave the money, I went directly to the NBI and reported what
The respondent foisted on the Court a tattle-tale when he claimed that the records happened during the exchange of unsigned decision.
of Criminal Case No. 00-0117 had been in the chambers of Judge Maceda from July to Q: We are talking about the P50,000.00?
August 2001 and, as such, it was physically impossible for him to have prepared the A: Yes.
unsigned order and later gave it to Olavere. The respondent failed to adduce any Q: You did not go to the NBI before you gave the money to entrap Atty.
documentary evidence to prove that Judge Maceda received the records of said case Morante?
from Macaldo or from the respondent before August 28, 2001. The respondent should COURT:
have adduced in evidence the record book of Branch 275 showing when the records Before you gave the money, you did not go to the NBI?
were transmitted to Judge Maceda. It behooved the respondent to have presented Judge That is the question.
Maceda as a witness to corroborate his claim that the records were in the chambers of Q: The P50,000.00?
the Judge from July 3, 2001 up to August 28, 2001. The respondent could have elicited A: I am coordinating my every move with the Chief of SAU. That includes
from Judge Maceda that he kept the records of said criminal case in his chambers during the P50,000.00 we were supposed to give in exchange for the unsigned
the said period. Judge Maceda could have identified the person who prepared the draft decision.
of the signed order which he corrected before he signed the same on August 28, COURT:
2001. The respondent failed to do so. The respondents culpability became more evident When you say SAU. What do you mean by that?
when he was confronted by the Investigating Justice with the unsigned order. The WITNESS:
Investigating Justice noticed that the respondent blushed and started to stammer when Special Action Unit.
the latter answered clarificatory questions.[63] COURT:
A reading of both the unsigned order[64] and the signed order[65] reveals that there Of what?
can be no other conclusion than that the two orders were prepared by one and the same WITNESS:
person using the same typewriter, and the records of Criminal Case No. 00-0117. As Of the NBI.
gleaned from the encompassing Report of the Investigating Justice: Q: So before you allegedly gave the P50,000.00 to Atty. Morante, you
When respondent was confronted with the two (2) orders unsigned and signed with his informed the NBI?
initials in both and, asked whether he noticed that the 2nd par. of page 2 of the signed A: Yes, they knew of my every move.[66]
order was verbatimly copied from the 3rd par., p. 1 of the unsigned order, When Olavere saw the NBI agents on August 27, 2001 as claimed by Toledo about
respondent blushed and started to stammer in answering further questions. the denial of the respondent for P250,000 in consideration of an unsigned order is not of
A careful examination of the two (2) orders would show that par. 2, p. 1 of the unsigned such importance. Olavere went to the NBI on said date and executed an affidavit-
order is the same as par. 1, p. 3 of the signed order; par. 1, p. 3 of the unsigned order is complaint against the respondent and filed the same to the NBI. Olavere closely
the same as par. 2, p. 3 of the signed order except that the cited authority in the
coordinated all their moves with the NBI, including the giving of P50,000 for the unsigned
order:
Q When you alleged you gave the money to Atty. Morante, you did notify the
NBI?
A After I gave the money, I went directly to the NBI and reported what
happened during the exchange of unsigned decision.
Q We are talking about the P50,000.00?
A Yes.
Q You did not go to the NBI before you gave the money to entrap Atty.
Morante?
COURT:
Before you gave the money, you did not go to the NBI?
That is the question.
Q The P50,000.00?
A I am coordinating my every move with the Chief of SAU. That includes
the P50,000.00 we were supposed to give in exchange for the unsigned
decision.
Q When you say SAU, what do you mean by that?
A Special Action Unit.
Q Of what?
A Of the NBI.
Q So before you allegedly gave the P50,000.00 to Atty. Morante, you
informed the NBI?
A Yes, they knew of my every move.[67]
Indeed, immediately after receiving the unsigned order from the respondent
on August 28, 2001, Olavere gave the unsigned order to the NBI as evidence against the
respondent. The culpability of the respondent is, likewise, evidenced by his failure to
follow procedure when he made arrangements with Olavere to release the order signed
by Judge Maceda himself. As ruled by the Investigating Justice:
Respondent violated procedure when he personally released the signed order to
Olavere. According to Ms. Macaldo, the release of the order should have been made by
the court where it was filed. Since the Momma case was filed with Branch 255 and the
pending incidents were resolved by Judge Maceda only as a pair judge, the order should
be released by the staff of Branch 255. This procedure was followed in all cases with
pending incidents from Branch 255 that were resolved by Judge Maceda, except the
Momma case.[68]
Anent the second and third issues, we agree with the findings of the Investigating
Justice in his Report that the complainant was able to adduce substantial evidence to
prove that the respondent promised to Olavere and agreed to give and did give and
actually gave to the latter on August 31, 2001 a certified copy of the August 28, 2001
Order already signed by Judge Maceda after receiving the brown envelope containing
the P200,000 from Olavere. In his affidavit-sworn statement on August 31, 2001 Olavere
declared, thus:
T Pagkatapos na maibigay mo ang P50,000 noong August 28, 2001 kapalit
ang walang pirmang desisyon, anong nangyari?
S Nakipagset ng schedule si ATTY. MORANTE na ibibigay niya ang
pirmadong desisyon kapalit ng P200,000 sa biyernes, August 31, 2001.
T Ano ang sumunod na pangyayari?
S Ngayon araw na ito, August 31, 2001, bandang alas-onse y medya ng
umaga (11:30 AM) ay nagpunta ako sa opisina ni ATTY. MORANTE.
T Ano naman ang ginawa mo sa opisina ni ATTY. MORANTE?
S Ayon sa usapan ay kinuha ko ang pirmadong desisyon ni Judge
BONIFACIO SANZ MACEDA kapalit ng P200,000. Tinanggap niya ang
pera na nasa loob ng envelop at ipinatong sa ibabaw ng kanyang
mesa. (Affiant submits Order of Judge BONIFACIO SANZ MACEDA
dated August 29, 2001 marked as Annexes A to A-3)
T Ano ang sumunod dito?
S Dumating na ang mga taga-NBI at hinuli si ATTY. MORANTE.
T May ipapakita ako sa iyong tao, kilala mo ba siya?
S Opo, siya po si ATTY. ALLAN MORANTE ang Branch Clerk of Court ng
Branch 275, RTC, Las Pias City, na tumanggap ng P200,000 nasa loob
ng envelope.
T Pansamantala ay wala na muna akong nais na itanong pa sa inyo, mayroon
ba kayong nais na idagdag o ibawas dito sa inyong salaysay?
S Wala po.[69]
To the clarificatory questions of the Investigating Justice, Olavere replied, viz:
Q When you went inside the room, there is (sic) a door?
COURT
Door to the office?
Q Door to the office of Atty. Morante from the outside? There must be a door.
A Yes, of course.
Q The door was not locked.
A Presumably it was not locked.
Q You did not lock it when you enter (sic)?
A No.
Q Then you went to the office of Mr. Morante?
A Yes, he led me inside.
Q Then according to you, you got the signed copy of the decision given to you
allegedly by Atty. Morante?
A After the exchange of the money.
Q Then you got the money from your back contained in an envelope, and you
gave it to Atty. Morante?
A I handed it to him.
Q He got it and then placed it in (sic) the table. That is the statement that you
swore and I quote: Tinanggap niya ang pera na nasa loob ng envelope
at ipinatong sa ibabaw ng kanyang mesa. He did not hide it in his
drawer. He did not pocket it. And after receiving the money, he placed it
there on top of the table. And you swore to that statement?
A Yes.
Q When was the money given to you by the NBI? We are referring to
the P200,000.00. Who gave to (sic) you the money?
A Mr. Momma gave the money.
Q Did you give it to the NBI?
A I showed it to them and then they had it dusted for (sic) fluorescent
powder. All the proceedings were done with proper paper works. And I
had the money with me and I went to Las Pinas.
Q When you handed the money contained in an envelope, you know that it
was already dusted for (sic) fluorescent powder and everything in order
to show?
A Yes.[70]
Respondent belabored on the evidence on record that after the entrapment
operation in the office of the respondent, the dorsal and palmar aspects of his left and
right hand were subjected to ultraviolet light test and were found negative for fluorescent
powder. However, the result of the test does not enfeeble the case for the
complainant. In the first place, the absence of fluorescent powder on the dorsal and
palmar aspects of the respondents hands is not conclusive evidence that he did not hold
the brown envelope at all before the NBI agents arrived in his office. The evidence on
record shows that the NBI agents referred the white mailing envelope with the P1,000
bills to the NBI Forensic Chemist Section for the application of fluorescent
powder.[71] The said bills and the white mailing envelope were dusted with fluorescent
powder. However, the NBI agents discovered that the white mailing envelope was too
small to contain bundles of bills amounting to P200,000, and placed the bundles of bills
in a 6x8-inch size brown envelope, which, however, was no longer dusted with
fluorescent powder. After receiving the envelope from Olavere, the respondent placed it
on top of his table. Had the respondent opened the envelope containing the four P1,000
bills dusted with fluorescent powder, for sure, the palmar aspects of his hand would have
tested positive for fluorescent powder.
The respondent claimed that one of the NBI agents who barged into his room took
hold of the brown envelope, removed the seal and opened it in front of him, and that the
said agent grabbed his right hand and attempted to place it inside the envelope, but was
foiled when stenographer Leticia B. Agbayani entered the room and shouted, Whats
happening here? (Anong nangyayari dito?) to which the respondent replied, Entrapment
daw.[72] The claim of the respondent is belied by his testimony that before Agbayanis
arrival, an NBI agent had already taken the money from the brown envelope and placed
the bundles of money on top of his table. Thus, when Agbayani barged into the
respondents room, Agbayani must have seen the bundles of money on his table. In her
affidavit,[73] she stated that when she barged into the respondents room after the NBI had
gained entry, she asked the respondent, Alam mo ba kung anong laman niyan? to which
the respondent replied, Hindi, does not bolster the respondents defense, but on the
contrary, weakens the same. It is incredible that the respondent would respond that he
did not know what was contained in the envelope, when, according to his testimony,
Agbayani barged into the room and the bundles of P200,000 had already been taken out
of the envelope and were placed on his table. The respondent even failed to identify the
NBI agent who filed an administrative or criminal charge against him for attempting to
falsely implicate the respondent.
Apart from the presumption that the NBI agents performed their duties in
accordance with law, the bare statement of the respondent cannot prevail, especially
since Leon Matienzo, the principal witness, whose testimony the respondent principally
relied on to corroborate his, was found by the Investigating Justice incredible. We agree
with the following disquisition of the Investigating Justice in his Report to the Court:
To corroborate respondents defense that he did not received (sic) the money inside the
bulky brown envelope, another tutored and perjured witness in the person of Leon
Matienzo was presented.
Leon Matienzo admitted that his affidavit was prepared by Atty. Cayton, counsel for the
respondent. Witness was not sure whether his affidavit was prepared in August or
September 2001. When the witness finally decided that his affidavit was prepared
September 2001, on a Monday after talking to Atty. Morante, yet he cannot remember
the date. The witness was warned not to talk to anybody while still testifying (TSN, pp.
22-23, July 22, 2001). The witness was even ambivalent when asked as to the time his
affidavit was prepared (TSN, p. 24, Ibid.) which is a proof that he was tutored and was
just asked to sign it.
Witness Matienzo is the Process Server of Branch 254. He claimed that at about 11:30
oclock in the morning on August 31, 2001, he went inside the office of the respondent to
inform him that they were able to get a schedule for their civil service
examinations. Almost simultaneous with his arrival in said office, he heard Atty. Morante
asked (sic) the person he was talking to, ano yan? He asked to be excused and told the
respondent, boss ipapaalam ko lang na nakapagpa-schedule na kami para sa civil
service examination and, he (Morante) answered, Okay. And he asked permission to
leave.
The role assigned to Matienzo in the defense of respondent was just to say/testify that he
heard Atty. Morante asked (sic), ano yan? and, nothing more. The witness is the Process
Server of Branch 254 presided by Judge Fernandez, the Executive Judge. According to
him, he was already permitted by the Executive Judge and the Branch Clerk of Court to
take the civil service examination. Why then would he still go to the office of Atty.
Morante, who was not his superior, on the fateful day of August 31, 2001 just to inform
him that he had a scheduled civil service examination?
Hereunder are portions of the testimony of the witness that would show the limited role
assigned to the witness in respondents defense:
Q What was the reaction of the person who was inside (the office) when Atty.
Morante say (sic), ano yan?
A Nakatingin po sa kanya, sir.
Q He did not react?
A Hindi ho kasi mabilis lang po ako doon, eh. Nang sabihin po nag-excuse na
po ako.
Q Why were you in a hurry to leave the place when at that point, Atty. Morante
was already asking, what was that?
A Dahil sa nag-excuse po ako, sir. Excuse me, sir, sabi ko sa kanya at sa
kanyang kausap, me sasabihin lang po ako (TSN, p. 32, July 22, 2002).
Q Now, are you sure that what you heard was, ano yan?
A Yes, sir.
Q Nothing else?
A Nothing else, sir. (TSN, p. 35, Ibid.)
The witness cannot even remember the date when the affidavit was prepared, the day he
signed it and, the date when it was subscribed before a person authorized to administer
oath. These only show that all the facts stated therein were supplied by counsel to
corroborate the testimony of the respondent.[74]
The case for the complainant is not enfeebled by the affidavit of Olavere dated
December 5, 2002 where he retracted his sworn statement, the supplemental sworn
statement to the NBI and his testimony before the Investigating Justice; and desisted
from being a witness against the respondent on his claim that the statements therein are
not only hearsay but were brought about by grave mistake and misapprehension of fact
and any lack of knowledge of court procedures;[75] nor by the affidavit of desistance
executed by Momma on his claim that:
3. However, the said statement was merely provided by my interpreter, which is turned
out and was later on discovered, was a result or was brought about by mistake and grave
misapprehension of facts and his lack of knowledge of court procedure, Atty. Morante did
not request nor received money directly from me to have the said case dismissed and I
have never met him in my life; [76]
First. In People v. Ballabare,[77] we held that a retraction of a witness does not
necessarily negate an original testimony. For this reason, the Court looks with disfavor
upon such retractions because testimonies can easily be obtained from witnesses
through intimidation or for monetary consideration. Moreover, any reconsideration must
be tested in a public trial, with sufficient opportunity given to the adverse party affected
by it to cross-examine the recanting witness. Hence, when confronted with a situation
where a witness recants his testimony, courts must not automatically exclude the original
testimony solely on the basis of recantation. They should determine which testimony
should be given credence through a comparison of the original testimony and the new
testimony, applying the general rules of evidence.[78] We have also held that it is absurd
to disregard a testimony that has undergone trial and scrutiny by the Court and the
parties simply because an affiant withdraws his testimony. Olavere and Momma
executed their affidavits only after the formal investigation had been concluded and the
case submitted for report and recommendation by the Investigating Justice.
Second. The respondent failed to file a motion for the reopening of the investigation
to enable him to present Olavere and Momma to testify on their affidavits to prevent the
Investigating Justice and the Court Administrator, which were not even furnished with
copies of said affidavits, from conducting examination of Olavere and Momma on their
affidavits.
Third. Olavere had personal knowledge of the facts contained in his sworn
statement, supplemental sworn statement and his testimony and, hence, the said
statement and testimony are not hearsay. Olavere dealt personally with the respondent,
gave him the total amount of P250,000 after receiving the unsigned and signed orders
from the respondent.
Fourth. Olavere and Momma did not explain their affidavits why it took them
until December 11, 2002 or after the lapse of more than a year from the entrapment of
the respondent on August 31, 2001 to execute the same. It is incredible that it took
Olavere more than one year to realize that the facts contained in his sworn statement
and as testified to by him were hearsay and of his lack of knowledge of procedure. Being
a mere secretary and a functionary of Momma, Olavere has not explained how he came
to the conclusion that his sworn statement and testimony are hearsay.
Fifth. The desistance of witnesses does not automatically result in the dismissal of
an administrative case. This Court, in fact, looks with disfavor at affidavits of desistance
filed by complainants, especially if done as an afterthought. Contrary to the submission of
the respondent, the withdrawal of the complaint on the recantation of Olavere does not
have the legal effect of exonerating him from any administrative disciplinary actions for
acts/omissions meriting disciplinary sanctions by the respondent. It does not operate to
divest this Court of jurisdiction to determine the truth behind the matter stated in the
complaint. The Courts disciplinary authority cannot be dependent on or frustrated by
private arrangements between parties. An administrative complaint against an official or
employee of the judiciary cannot simply be withdrawn by a complainant who suddenly
claims a change of mind.[79]
On the last issue, we agree with the Investigating Justice that the respondent,
based on the substantial evidence on record, is guilty of grave and serious misconduct:
for extorting P50,000 from Momma through Olavere for the unsigned order, and
another P200,000 for the order duly signed by Judge Maceda. Such abominable acts of
the respondent warrant his dismissal from the service and the imposition of accessory
penalties therefor.[80]
The Court condemns and would never countenance any conduct, act or omission
on the part of all those involved in the administration of justice which would violate the
norm of public accountability and diminish or even just tend to diminish the faith of the
people in the Judiciary.[81]
Time and again this Court has stressed that those involved in the administration of
justice must conduct themselves in a manner that is beyond reproach since their office is
circumscribed with a heavy burden of responsibility.[82] Public office is a public trust. No
position demands greater moral righteousness and uprightness from its occupant than
does the judicial office. Clerks of court, in particular, being the chief administrative
officers of their respective courts, must be individuals of competence, honesty and
probity, charged as they are with safeguarding the integrity of the court and its
proceedings.[83] As essential and ranking officers of our judicial system, they perform
delicate administrative functions vital to the prompt and proper administration of
justice.[84] Clerks of court serve as an exemplar for other court employees, whose duties
and responsibilities must be strictly performed. They play a key role in the complement of
the court and cannot be permitted to slacken on the job under one pretext or another. [85]
Furthermore, it must be stressed that a member of the Bar who assumes public
office does not shed his professional obligations. The Code of Professional
Responsibility was not meant to govern the conduct of private practitioners alone, but of
all lawyers, including those in government service.[86] Lawyers in government are public
servants who owe utmost fidelity to the public service. Thus, they should be more
sensitive in the performance of their professional obligations, as their conduct is subject
to the ever-constant scrutiny of the public.[87]
Under A.M. No. 02-9-02-SC[88] Re: Automatic Conversion of Some Administrative
Cases Against Justices of the Court of Appeals and the Sandiganbayan; Judges of
Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary
Proceedings Against Them Both as Such Officials and as Members of the Philippine
Bar,[89]which took effect on October 1, 2002, the respondent would have been required to
comment on the complaint and to show cause why he should not also be suspended,
disbarred or otherwise disciplinarily sanctioned as a member of the bar. However, the
complaint was filed before this Court on September 21, 2001, long before the said
resolution took effect. Thus, it cannot be applied in the instant case.90
WHEREFORE, in view of the foregoing, respondent Atty. Edgar Allan C. Morante,
Clerk of Court, Regional Trial Court, Las Pias City, Branch 275, having been
found GUILTY of grave and serious misconduct, is DISMISSED from the service
effective immediately, with forfeiture of all retirement benefits, except accrued leave
credits, with prejudice to his reemployment in any branch or instrumentality in the
government, including government-owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Corona, J., on leave.
G.R. No. 34686-88, February 24, 1932
PHILIPPINE TRUST CO., PLAINTIFF AND APPELLANT, VS. ANTIGUA BOTICA
RAMIREZ, DANIEL BOQUER, AND J. J. DUNBAR, DEFENDANTS AND APPELLEES.
[G.R. No. 34687, February 24, 1932]
PHILIPPINE TRUST CO., PLAINTIFF AND APPELLANT, VS. ANTIGUA BOTICA
RAMIREZ, DANIEL BOQUER, J. J. DUNBAR, AND EDUARDO GUTIERREZ REPIDE,
DEFENDANTS AND APPELLEES.
[G.R. No. 34688, February 24, 1932]
PHILIPPINE TRUST CO., PLAINTIFF AND APPELLANT, VS. J. J. DUNBAR, DANIEL
BOQUER, EDUARDO GUTIERREZ REPIDE, AND MANUELA REYES Y ALMEIDA,
DEFENDANTS AND APPELLEES.
DECISION
OSTRAND, J.:
This is an appeal from the judgment of the Court of First Instance of Manila
in the above-entitled three cases which have been tried together and decided by
the court below as one case.
In case G. R. No. 34686, plaintiff-appellant seeks to collect from
defendants-appellees, Antigua Botica Ramirez, Daniel Boquer, and J. J. Dunbar,
the amount of P7.531.28 which represents the balance of an overdraft account of
the Antigua Botica Ramirez with the plaintiff as of December 17, 1928. J. J.
Dunbar and Daniel Boquer were guarantors for the overdraft.
In case G. R. No. 34687, plaintiff-appellant seeks to collect from
defendants, Daniel Boquer, Antigua Botica Ramirez, J. J. Dunbar, and Eduardo
Gutierrez Repide, the amount of P5,837.07, balance as of March 24, 1930, of a
promissory note for P6,000 executed by the defendants on June 7, 1927, in favor
of the plaintiff, whereby the defendants promised, jointly and severally, to
pay the plaintiff 90 days after its execution.
In case G. R. No. 34688, plaintiff-appellant seeks to collect from defendants
J. J. Dunbar, Daniel Boquer, Eduardo Gutierrez Repide, and Manuela Reyes y
Almeida, the sum of P17,702.52, balance as of December 10, 1927, of a promissory
note for P30,000 executed by Dunbar, Boquer, and Gutierrez Repide, P10,000 of
which was guaranteed by Manuela Reyes y Almeida with a mortgage of a parcel of
land situated in the City of Manila in favor of the plaintiff.
For some time before the complaints were filed the Antigua Botica Ramirez was
under the control and management of the plaintiff, and a few months after
plaintiffs complaints were filed, and upon plaintiffs petition, a receiver of
the properties of the defendant Antigua Botica Ramirez was
appointed.
After trial, the court below rendered judgment, dismissing the
three complaints, ordering the cancellation of the mortgage of Manuela Reyes
land, discharging the receiver and ordering him to turn over the properties of
the defendant Antigua Botica Ramirez to plaintiff.. From this judgment the
plaintiff appealed to this court and made the following assignments of
error:
1. The trial court erred in permitting the defendant. Eduardo Gutierrez
Repide testify, over the objection and exception of counsel for the plaintiff,
that he signed the promissory notes marked Exhibits J and M in cases Nos.
34687-88, as a mere surety, and for no consideration.
2. The trial court erred in not striking from the record defendant Eduardo
Gutierrez Repides testimony that his codefendant Daniel Boquer told him that
the plaintiff gave him several extensions for the payment of the promissory
notes marked Exhibits J and M in cases Nos. 34687-88, and in finding that such
extensions were in fact given by plaintiff.
3. The trial court erred in permitting the defendants Eduardo Gutierrez
Repide, Daniel Boquer and J. J. Dunbar and the witness Rosario Boquer testify,
over the objection and exception of counsel for the plaintiff, that the shares
which they owned of the stock of the defendant corporation Antigua Botica
Ramirez were assigned by them to plaintiff in payment of their obligations and
in finding that such assignment, as claimed by the defendants, was in fact
made.
4. The trial court erred in holding that the plaintiff administered the
business of the defendant corporation Antigua Botica Ramirez, without any
intervention on the latters part, and in not permitting plaintiffs witness J.
M. Araullo testify as to the condition of the corporation in the month of April,
1929.
5. The trial court erred in finding that plaintiff sold certain furniture
and other properties of the defendant Antigua Botica Ramirez at very reduced
prices.
6. The trial court erred in admitting in evidence the documents marked
defendants Exhibits 3, 4, 7, 30, 45, 46 and 47.
7. The trial court erred in not admitting in evidence the documents marked
plaintiffs Exhibits CC, DD and EE, and in not permitting plaintiffs witnesses
E. B. Ford and E. B. Velasquez testify on them.
8. The trial court erred in finding that the preponderance of evidence was
in favor of the defendants and against the plaintiff.
9. The trial court erred in rendering judgment in favor of the defendants,
and not in favor of the plaintiff, as prayed for in its complaints.
10. The trial court erred in denying plaintiffs motions for a new
trial.
Under the first assignment of error, counsel for the plaintiff contend that
the defendant Eduardo Gutierrez Repide should not have been permitted by the
lower court to testify that he signed the promissory notes marked plaintiffs
Exhibits J and M as a mere surety, and for no consideration.
We think that this point is well taken. It is admitted by the defendant
Eduardo Gutierrez Repide that he signed the promissory notes as a surety, and it
was immaterial, so far as the plaintiff was concerned, whether or not the said
Gutierrez Repide received anything in payment for the use of his signature.
(Clark vs. Sellner, 42 Phil., 384.)
The second assignment of error has reference to the action of the lower court
in not striking from the record the testimony of the defendant Eduardo Gutierrez
Repide that he was told by the defendant Daniel Boquer that the plaintiff bank
gave him (Boquer) several extensions for the payment of the promissory notes
Exhibits J and M, and in finding that plaintiff gave such extensions.
We have not found anything in the record to justify defendants contention.
The only witness for the defendants who testified on the alleged extensions
given by plaintiff was the defendant Gutierrez Repide himself, and his testimony
consisted only of hearsay evidence and general statements against the direct and
positive evidence introduced by plaintiff that no extension was ever given for
the payment of the promissory notes. But what convinces the court that plaintiff
did not extend the time for the payment of the promissory notes in question, is
the fact that the testimony of the defendant Eduardo Gutierrez Repide was not
corroborated by either the defendant Daniel Boquer, who imparted the information
to Gutierrez Repide, or by the defendant J. J. Dunbar. The latter, in fact,
admitted that no extension was given him for the payment of the promissory
notes. Dunbar testified as follows:
Q. Mr. Dunbar, have you ever obtained an extension for the payment of the
indebtedness or obligations of the Antigua Botica Ramirez to the Philippine
Trust Company and Fidelity & Surety Company covered by some of the documents
here presented in evidence?A. No, sir.
Plaintiff might not have been prompt in proceeding against the principal
debtor, but mere delay is no defense at all for the surety.
We rule that the lower court erred in not striking from the record the
testimony of the defendant Eduardo Gutierrez Repide on the alleged extensions
given by plaintiff to the defendant Daniel Boquer for the payment of the
promissory notes marked plaintiffs Exhibits J and M, and in finding that such
extensions were given by plaintiff.
The third assignment of error is directed towards the action of the lower
court in permitting the defendants Eduardo Gutierrez Repide, Daniel Boquer, and
J. J. Dunbar, and the witness Rosario Boquer to testify that the shares which
they owned of the stock of the corporation Antigua Botica Ramirez were assigned
by them to plaintiff in payment of the defendants obligations, and in finding
that such assignment was, in fact, made.
The defendants claim that they assigned to plaintiff the shares which they
owned of the stock of the corporation Antigua Botica Ramirez in payment of their
obligations. Plaintiff denies that such assignment was ever made, and claims
that the shares in question were assigned for the purpose of enabling plaintiff
to reorganize the corporation Antigua Botica Ramirez and sell its business at a
fair and reasonable price.
We have carefully examined the evidence, and are of the opinion that
plaintiffs contention should be sustained. The defendants Eduardo Gutierrez
Repide and Daniel Boquer testified, in direct examination, that a deed of
assignment to plaintiff of the shares in question in payment of the obligations
of the defendants was to be executed, and the record shows that no such document
was ever executed.
It is claimed by the defendants that the assignment of their shares of the
stock of the corporation Antigua Botica Ramirez to the plaintiff bank was made
in payment of their obligations. Examining, however, the notice for the special
stockholders meeting on April 26, 1929, which notice was prepared by the
defendant Eduardo Gutierrez Repide himself, no mention is made therein of any
assignment of the shares in question in payment of the obligations of the
defendants to plaintiff. The notice simply says that the meeting was being
called for the purpose of electing the new members of the Board of Directors
and determining the manner of liquidating with the Philippine Trust Company and
Fidelity & Surety Company of the Philippine Islands the obligations of the
corporation (Antigua Botica Ramirez) pending payment, and at the same time
resolve the indorsement of all the shares of the corporation to the creditor
corporations in order that the latter might reorganize the Antigua Botica
Ramirez (antes Zobel), Inc. in the manner most convenient to their interest.
Had such an assignment as claimed by the defendants been made, it is but natural
to expect that the defendant Gutierrez Repide would have made some mention
thereof in the notice for the meeting prepared by him.
The fourth and fifth assignments of error relate to the action of the lower
court in holding that plaintiff administered the business of the defendant
corporation Antigua Botica Ramirez without any intervention on the latters
part; in not permitting the witness J. M. Araullo to testify as to the condition
of the corporation in the month of April, 1929; and in finding that plaintiff
sold certain properties of the defendant Antigua Botica Ramirez at very reduced
prices.
We think these points are well taken.
The defendants contend that plaintiff should not have sold for P5,000 a
credit of P18,539.25 which the defendant corporation Antigua Botica Ramirez had
against the Palma Rosa Manufacturing Company. The record, however, shows that
the debtor, the said Palma Rosa Manufacturing Company, was insolvent and that
before the new board of directors of the corporation Antigua Botica Ramirez made
the sale, the defendants Daniel Boquer and J. J. Dunbar and the stockholders
Rosario Boquer and Jose V. Ramirez were asked by plaintiff to make their
comments and recommendations and that no attention was paid to plaintiffs
request. The defendants should not be heard now to complain.
The defendant Daniel Boquer testified, in direct examination, that he
delivered to plaintiffs witness J. M. Araullo all the assets of the defendant
corporation Antigua Botica Ramirez. On rebuttal, Araullo was not permitted to
controvert Boquers testimony.
The defendant Daniel Boquer was the manager of the business of the Antigua
Botica Ramirez before the plaintiff took possession thereof, and the defendants
claimed that the business was properly managed by Boquer. On rebuttal, Araullo
was not permitted to testify as to the condition of the business at the time
plaintiff took it over for the purpose of reorganization.
The rulings of the lower court were erroneous. The witness Araullo should
have been permitted to testify, on rebuttal, on the points covered by the
defendant Boquer in direct examination.
With reference to the sale of a motorcycle and certain shelves of the
corporation Antigua Botica Ramirez, we have examined the record and found
nothing therein to show that they were not sold for a reasonable price. It
appears that the party who once offered P500 for the motorcycle and later on
P150, had no money and claimed that the motorcycle was in bad condition, and
there is total lack of evidence as to the condition in which the shelves were at
the time of the sale.
The sixth and seventh assignments of error are concerned with certain
evidence offered by the defendants and admitted by the lower court over the
objection of counsel for the plaintiff, and with certain evidence offered by the
plaintiff and rejected by the lower court.
In view of the decision to be rendered by the court, we shall only discuss
the assignment of error in connection with the document marked Exhibit EE
offered by plaintiff in evidence and rejected by the lower court.
Plaintiffs Exhibit EE is a copy of the minutes of a special meeting of the
stockholders of the corporation Antigua Botica Ramirez held on April 26, 1929,
wherein a transcript of the stenographic notes taken at the stockholders
meeting of the same corporation held on April 19, 1929, was incorporated. At
the said meeting of April 19, 1929, the defendants Eduardo Gutierrez Repide, J.
J. Dunbar and Daniel Boquer admitted their obligations to the plaintiff bank and
such admissions were inserted, without any objection on the part of the said
defendants, in the minutes of the special stockholders meeting of April 26,
1929.
Counsel for the defendants objected to the introduction of said Exhibit EE on
the ground that it contained certain statements made by the said defendants
Eduardo Gutierrez Repide, J. J. Dunbar, and Daniel Boquer; that the latter were
not given an opportunity to explain their statements before plaintiff offered
the document in evidence; and that the said document was therefore inadmissible
as evidence. This contention is without merit. Had plaintiff intended to impeach
statements made by the defendants Eduardo Gutierrez Repide, J. J. Dunbar, and
Daniel Boquer on another occasion, plaintiff, as claimed by counsel for the
defendants, should have laid a foundation for the introduction in evidence of
said Exhibit EE by calling the attention of the said defendants Eduardo
Gutierrez Repide, J. J. Dunbar, and Daniel Boquer to their former statements,
but apparently plaintiff had no such purpose. Plaintiffs purpose in introducing
the said Exhibit EE was probably to show certain admissions against interest
made by the defendants, and said Exhibit EE might then be admissible without the
necessity of plaintiffs first making the defendants Eduardo Gutierrez Repide,
J. J. Dunbar, and Daniel Boquer explain their statements.
* * * In offering in evidence the testimony given by Mr. Hemady and the
Hashims in the earlier case, the defendant-appellant did not claim that said
testimony contained admissions against interest by the parties to the action of
their agents; if such had been the case, the testimony would have been
admissible without the laying of a foundation and without the witnesses having
testified in the case at bar. * * * (Juan Ysmael & Co. vs. Hashim and
Gorayeb, 50 Phil., 132, 138.)
For all the foregoing considerations, the judgment of the lower court is
hereby reversed, and judgment is hereby rendered
In case No. 34686, in favor of the plaintiff Philippine Trust Company and
against the defendants Antigua Botica Ramirez, Daniel Boquer, and J. J. Dunbar,
jointly, for the sum of seven thousand five hundred thirty-one pesos and
twenty-eight centavos (P7,531.28), with interest at the rate of nine per cent
(9%) per annum from December 17, 1928, until paid.
In case No. 34687, in favor of the plaintiff Philippine Trust Company and
against the defendants Antigua Botica Ramirez, Daniel Boquer, J. J. Dunbar, and
Eduardo Gutierrez Repide jointly and severally, for the sum of five thousand
eight hundred thirty-seven pesos and seven centavos (1N5,837.O7), with interest
at the rate of ten per cent (10%) per annum, from March 24, 1930, until paid;
and additional sum of five hundred eighty-three pesos and seventy centavos
(P583.70) for and as attorneys fees and costs of collection.
In case No. 34688 in favor of the plaintiff Philippine Trust Company and
against the defendants J. J. Dunbar, Daniel Boquer, Eduardo Gutierrez Repide and
Manuela Reyes y Almeida, jointly and severally, for the sum of seventeen
thousand seven hundred and tWo pesos and fifty-two centavos (P17,702.52), with
interest at the rate of ten per cent (10%) per annum from December 10, 1927,
until paid, the liability of the defendant Manuela Reyes y Almeida being
limited, however, to the sum of ten thousand pesos (P10,000), which is the
amount of the obligations secured by her mortgage of February 13, 1926.
The defendants J. J. Dunbar, Daniel Boquer, and Eduardo Gutierrez Repide are
further sentenced to pay plaintiff, jointly and severally, the additional sum of
one thousand seven hundred and two pesos and twenty-five centavos (P1,702.25)
for and as attorneys fees and costs of collection.
The defendant Manuela Reyes y Almeida is further sentenced to pay plaintiff
the additional sum of one thousand pesos (P1,000) for and as attorneys fees and
costs of collection.
The costs will be limited to the attorneys fees and costs of collection as
hereinbefore stated. So ordered.
Avancea, C. J., Johnson, Street, Malcolm, Villa-Real, and
Imperial, JJ., concur.
[G.R. No. 96202. April 13, 1999]
ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS and SOCOR
CONSTRUCTION CORPORATION, respondents.
DECISION
MENDOZA, J.:
This petition for review on certiorari seeks a reversal of the decision [1] of the Court
of Appeals affirming the judgment[2] of the Regional Trial Court of Cebu City ordering
petitioner -
. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine Thousand
Seven Hundred Seventeen Pesos and Seventy Five Centavos (P299,717.75) plus
interest thereon at 12% per annum from September 22, 1986, the date of the filing of the
complaint until fully paid; to pay [private respondent] the further sum of Ten Thousand
Pesos (P10,000.00) for reasonable attorneys fees; to pay the sum of Five Hundred Fifty
Two Pesos and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of
suit. Since [private respondent] withdrew its prayer for an alias writ of preliminary
attachment vis-a-vis the [petitioners] counterbound, the incident on the alias writ of
preliminary attachment has become moot and academic.
The facts are as follows:
Petitioner Rosella D. Canque is a contractor doing business under the name and
style RDC Construction. At the time material to this case, she had contracts with the
government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of
Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. [3] In
connection with these projects, petitioner entered into two contracts with private
respondent Socor Construction Corporation. The first contract (Exh. A),[4] dated April 26,
1985, provided:
The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for
the consideration hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform and execute the Supply, Lay and
Compact Item 310 and Item 302;
b. That Contractor shall provide the labor and materials needed to
complete the project;
c. That the Contractor agrees to pay the Sub-Contractor the price of One
Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and
Eight Thousand Only (P8,000.00) per Metric Ton of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume of the
supplied Item based on the actual weight in Metric Tons delivered, laid
and compacted and accepted by the MPWH;
e. The construction will commence upon the acceptance of the offer.
The second contract (Exh. B),[5] dated July 23, 1985, stated:
The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the
consideration hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item 310 and
Item 302 to the jobsite for the Asphalting of DAS Access Road and the
Front Gate of ACMDC, Toledo City;
b. That the Contractor should inform or give notice to the Supplier two (2)
days before the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the supplied items
on the actual weight in metric tons delivered and accepted by the MPWH
fifteen (15) days after the submission of the bill;
d. The delivery will commence upon the acceptance of the offer.
On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a
revised computation,[6] for P299,717.75, plus interest at the rate of 3% a month,
representing the balance of petitioners total account of P2,098,400.25 for materials
delivered and services rendered by private respondent under the two
contracts. However, petitioner refused to pay the amount, claiming that private
respondent failed to submit the delivery receipts showing the actual weight in metric tons
of the items delivered and the acceptance thereof by the government. [7]
Hence, on September 22, 1986, private respondent brought suit in the Regional
Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at the
rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with private
respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she
disputed the correctness of the bill
. . . considering that the deliveries of [private respondent] were not signed and
acknowledged by the checkers of [petitioner], the bituminous tack coat it delivered to
[petitioner] consisted of 60% water, and [petitioner] has already paid [private respondent]
about P1,400,000.00 but [private respondent] has not issued any receipt to [petitioner] for
said payments and there is no agreement that [private respondent] will charge 3% per
month interest.[8]
Petitioner subsequently amended her answer denying she had entered into sub-
contracts with private respondent.[9]
During the trial, private respondent, as plaintiff, presented its vice-president, Sofia
O. Sanchez, and Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone testimony. [10]
On June 22, 1988, the trial court rendered its decision ordering petitioner to pay
private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs. It
held:
. . . . [B]y analyzing the plaintiffs Book of Collectible Accounts particularly page 17 thereof
(Exh. K) this Court is convinced that the entries (both payments and billings) recorded
thereat are credible. Undeniably, the book contains a detailed account of SOCORs
commercial transactions with RDC which were entered therein in the course of
business. We cannot therefore disregard the entries recorded under Exhibit K because
the fact of their having been made in the course of business carries with it some degree
of trustworthiness. Besides, no proof was ever offered to demonstrate the irregularity of
the said entries thus, there is then no cogent reason for us to doubt their authenticity. [11]
The trial court further ruled that in spite of the fact that the contracts did not have
any stipulation on interest, interest may be awarded in the form of damages under Article
2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld the trial courts reliance on
private respondents Book of Collectible Accounts (Exh. K) on the basis of Rule 130,
37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
 I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS
ENTRIES IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE
RESPONDENTS BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING
THAT THE PERSON WHO MADE SAID ENTRIES ACTUALLY
TESTIFIED IN THIS CASE BUT UNFORTUNATELY HAD NO
PERSONAL KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE
REVERSED AS IT HAS ONLY INADMISSIBLE EVIDENCE TO SUPPORT
IT.
First. Petitioner contends that the presentation of the delivery receipts duly
accepted by the then Ministry of Public Works and Highways (MPWH) is required under
the contracts (Exhs. A and B) and is a condition precedent for her payment of the amount
claimed by private respondent. Petitioner argues that the entries in private respondents
Book of Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and
that such entries are mere hearsay and, thus, inadmissible in evidence.[14]
We agree with the appellate court that the stipulation in the two contracts requiring
the submission of delivery receipts does not preclude proof of delivery of materials by
private respondent in some other way. The question is whether the entries in the Book of
Collectible Accounts (Exh. K) constitute competent evidence to show such
delivery.Private respondent cites Rule 130, 37 of the Rules of Court and argues that the
entries in question constitute entries in the course of business sufficient to prove
deliveries made for the government projects. This provision reads:
Entries in the course of business. Entries made at, or near the time of the transactions to
which they refer, by a person deceased, outside of the Philippines or unable to testify,
who was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of business or duty.[15]
The admission in evidence of entries in corporate books requires the satisfaction of
the following conditions:
1. The person who made the entry must be dead, outside the country or unable to
testify;
2. The entries were made at or near the time of the transactions to which they refer;
3. The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the performance of a
duty, whether legal, contractual, moral or religious; and
5. The entries were made in the ordinary or regular course of business or duty. [16]
As petitioner points out, the business entries in question (Exh. K) do not meet the
first and third requisites. Dolores Aday, who made the entries, was presented by private
respondent to testify on the account of RDC Construction. It was in the course of her
testimony that the entries were presented and marked in evidence. There was, therefore,
neither justification nor necessity for the presentation of the entries as the person who
made them was available to testify in court.
Necessity is given as a ground for admitting entries, in that they are the best available
evidence. Said a learned judge: What a man has actually done and committed to writing
when under obligation to do the act, it being in the course of the business he has
undertaken, and he being dead, there seems to be no danger in submitting to the
consideration of the court. The person who may be called to court to testify on these
entries being dead, there arises the necessity of their admission without the one who
made them being called to court be sworn and subjected to cross-examination. And this
is permissible in order to prevent a failure of justice.[17]
Moreover, Aday admitted that she had no personal knowledge of the facts
constituting the entry. She said she made the entries based on the bills given to her. But
she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries
of the materials stated in the bills were supervised by an engineer for (such)
functions.[18] The person, therefore, who has personal knowledge of the facts stated in
the entries, i.e., that such deliveries were made in the amounts and on the dates stated,
was the companys project engineer. The entries made by Aday show only that the
billings had been submitted to her by the engineer and that she faithfully recorded the
amounts stated therein in the books of account. Whether or not the bills given to Aday
correctly reflected the deliveries made in the amounts and on the dates indicated was a
fact that could be established by the project engineer alone who, however, was not
presented during trial. The rule is stated by former Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the facts entered by him, and the
person who gave him the information is individually known and may testify as to the facts
stated in the entry which is not part of a system of entries where scores of employees
have intervened, such entry is not admissible without the testimony of the informer. [19]
Second. It is nonetheless argued by private respondent that although the entries
cannot be considered an exception to the hearsay rule, they may be admitted under Rule
132, 10[20] of the Rules of Court which provides:
SEC. 10. When witness may refer to memorandum. A witness may be allowed to refresh
his memory respecting a fact, by anything written by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other time when the fact
was fresh in his memory and he knew that the same was correctly stated in the writing;
but in such case the writing must be produced and may be inspected by the adverse
party, who may, if he chooses, cross-examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from such a writing, though he retain no
recollection of the particular facts, if he is able to swear that the writing correctly stated
the transaction when made; but such evidence must be received with caution.
On the other hand, petitioner contends that evidence which is inadmissible for the
purpose for which it was offered cannot be admitted for another purpose. She cites the
following from Chief Justice Morans commentaries:
The purpose for which the evidence is offered must be specified. Where the offer is
general, and the evidence is admissible for one purpose and inadmissible for another,
the evidence should be rejected. Likewise, where the offer is made for two or more
purposes and the evidence is incompetent for one of them, the evidence should be
excluded.The reason for the rule is that it is the duty of a party to select the competent
from the incompetent in offering testimony, and he cannot impose this duty upon the trial
court. Where the evidence is inadmissible for the purpose stated in the offer, it must be
rejected, though the same may be admissible for another purpose. The rule is stated
thus: If a party x x x opens the particular view with which he offers any part of his
evidence, or states the object to be attained by it, he precludes himself from insisting on
its operation in any other direction, or for any other object; and the reason is, that the
opposite party is prevented from objecting to its competency in any view different from
the one proposed.[21]
It should be noted, however, that Exh. K is not really being presented for another
purpose. Private respondents counsel offered it for the purpose of showing the amount of
petitioners indebtedness. He said:
Exhibit K, your Honor - faithful reproduction of page (17) of the book on Collectible
Accounts of the plaintiff, reflecting the principal indebtedness of defendant in
the amount of Two hundred ninety-nine thousand seven hundred seventeen
pesos and seventy-five centavos (P299,717.75) and reflecting as well the
accumulated interest of three percent (3%) monthly compounded such that
as of December 11, 1987, the amount collectible from the defendant by the
plaintiff is Six hundred sixteen thousand four hundred thirty-five pesos and
seventy-two centavos (P616,435.72);[22]
This is also the purpose for which its admission is sought as a memorandum to
refresh the memory of Dolores Aday as a witness. In other words, it is the nature of the
evidence that is changed, not the purpose for which it is offered.
 Be that as it may, considered as a memorandum, Exh. K does not itself constitute incomplete or irregular performance. In view of these facts, we believe Art. 1235 of the
evidence. As explained in Borromeo v. Court of Appeals:[23] New Civil Code is applicable.
Under the above provision (Rule 132, 10), the memorandum used to refresh the memory Art. 1235. When the obligee accepts the performance, knowing its incompleteness and
of the witness does not constitute evidence, and may not be admitted as such, for the irregularity and without expressing any protest or objection, the obligation is deemed
simple reason that the witness has just the same to testify on the basis of refreshed complied with.
memory. In other words, where the witness has testified independently of or after his FINALLY, after a conscientious scrutiny of the records, we find Exhibit D-1 (p. 85 record)
testimony has been refreshed by a memorandum of the events in dispute, such to be a material proof of plaintiffs complete fulfillment of its obligation.
memorandum is not admissible as corroborative evidence. It is self-evident that a witness There is no question that plaintiff supplied RDC Construction with Item 302 (Bitunimous
may not be corroborated by any written statement prepared wholly by him. He cannot be Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310 (Bitunimous Concrete
more credible just because he supports his open-court declaration with written Surface Course) in all the three projects of the latter. The Lutopan Access Road project,
statements of the same facts even if he did prepare them during the occasion in dispute, the Toledo wharf project and the Babag-Lapulapu Road project.
unless the proper predicate of his failing memory is priorly laid down. What is more, even On the other hand, no proof was ever offered by defendant to show the presence of other
where this requirement has been satisfied, the express injunction of the rule itself is that contractors in those projects. We can therefore conclude that it was Socor Construction
such evidence must be received with caution, if only because it is not very difficult to Corp. ALONE who supplied RDC with Bituminous Prime Coat, Bituminous Tack Coat
conceive and fabricate evidence of this nature. This is doubly true when the witness and Bituminous Concrete Surface Course for all the aforenamed three projects. [26]
stands to gain materially or otherwise from the admission of such evidence . . . . [24] Indeed, while petitioner had previously paid private respondent
As the entries in question (Exh. K) were not made based on personal knowledge, about P1,400,000.00 for deliveries made in the past, she did not show that she made
they could only corroborate Dolores Adays testimony that she made the entries as she such payments only after the delivery receipts had been presented by private
received the bills. respondent. On the other hand, it appears that petitioner was able to collect the full
Third. Does this, therefore, mean there is no competent evidence of private amount of project costs from the government, so that petitioner would be unjustly
respondents claim as petitioner argues?[25] The answer is in the negative. Aside from enriched at the expense of private respondent if she is not made to pay what is her just
Exh. K, private respondent presented the following documents: obligation under the contracts.
1) Exhibit A - Contract Agreement dated 26 April 1985 which contract covers both the WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
Toledo wharf project and the Babag Road project in Lapulapu City. SO ORDERED.
2) Exhibit B - Contract Agreement dated 23 July 1985 which covers the DAS Asphalting Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.
Project.
3) Exhibit C - Revised Computation of Billings submitted on May 28, 1986.
4) Exhibit D - an affidavit executed by [petitioner] to the effect that she has no more
pending or unsettled obligations as far as Toledo Wharf Road is concerned.
5) Exhibit D-1 - Statement of Work Accomplished on the Road Restoration of Cebu-
Toledo wharf project.
6) Exhibit E - another affidavit executed by [petitioner] attesting that she has completely
paid her laborers at the project located at Babag, Lapulapu City
7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private respondent] together with the
receipts for filing fees.
8) Exhibits H, I, J - certifications issued by OIC, MPWH, Regional Office; Lapulapu City,
City Engineer; Toledo City Treasurers Office respectively, proving that RDC construction
has no more collectibles with all the said government offices in connection with its
projects.
10) Exhibit L - Bill No. 057 under the account of RDC Construction in the amount
of P153,382.75 dated August 24, 1985.
11) Exhibit M - Bill No. 069 (RDCs account), in the amount of P1,701,795.00 dated
November 20, 1985.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount of P47,250.00 dated
November 22, 1985.
13) Exhibit O - Bill No. 079 (RDCs account) in the amount of P7,290.00 dated December
6, 1985.
As the trial court found:
The entries recorded under Exhibit K were supported by Exhibits L, M, N, O which are all
Socor Billings under the account of RDC Construction. These billings were presented
and duly received by the authorized representatives of defendant. The circumstances
obtaining in the case at bar clearly show that for a long period of time after receipt
thereof, RDC never manifested its dissatisfaction or objection to the aforestated billings
submitted by plaintiff. Neither did defendant immediately protest to plaintiffs alleged