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G.R. No.

139070 May 29, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

NOEL LEE, accused-appellant.


On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98), which sentenced
accused-appellant Noel Lee to death for the murder of Joseph Marquez.

On May 27, 1998, an Information was filed against accused-appellant charging him with the crime of murder committed as follows:

"That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully
and feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a handgun, thereby inflicting upon the latter
serious physical injuries, which ultimately caused the victims death.


Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented the following witnesses: (a) Herminia Marquez, the
mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police
officer who examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime

The prosecution established the following facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez, 46 years of age and her son,
Joseph, 26 years of age, were in the living room of their house located at No. 173 General Evangelista St., Bagong Barrio, Caloocan City. The living
room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was an alley leading to General Evangelista Street. The alley
was bright and bustling with people and activity. There were women sewing garments on one side and on the other was a store catering to
customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated on an armchair and the
television set was to her left. Across her, Joseph sat on a sofa against the wall and window of their house and the television was to his right.
Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the
open window behind Joseph. She looked up and saw accused-appellant Noel Lee peering through the window and holding the gun aimed at
Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Josephs
head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and three (3) shots
more two hit the sofa and one hit the cement floor. When no more shots were fired, Herminia ran to the window and saw accused-appellant,
in a blue sando, flee towards the direction of his house. Herminia turned to her son, dragged his body to the door and shouted for help. With the
aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.1wphi1.nt

Police investigators arrived at the hospital and inquired about the shooting incident. Herminia told them that her son was shot by Noel Lee. From
the hospital, Herminia went to the St. Martin Funeral Homes where Josephs body was brought. Thereafter, she proceeded to the Caloocan City
Police Headquarters where she gave her sworn statement about the shooting.2

Upon request of the Caloocan City police, a post-mortem examination was made on Josephs body. Dr. Rosaline O. Cosidon, a medico-legal officer
of the PNP Crime Laboratory Service made the following findings:


Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body.
Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture mark was noted at the dorsum of the right hand.


(1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161 cm from heel, with an
upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially and inferiorly directed posteriorwards,
downwards and to the left fracturing the frontal bone, lacerating the brain. A deformed slug was recovered embedded at
the left cerebral hemisphere of the brain.
(2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with a
uniform 0.2 cm upbraded collar, directed slightly anteriorwards, downwards and lateralwards, fracturing the occipital bone
and lacerating the brain. A deformed slug was recovered at the left auricular region.

(3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline.

There are subdural and subarachnoidal hemorrhages.

Stomach is full of partially digested food particles and positive for alcoholic odor.


Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head."3

At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight Services earning P250.00 a day.4 He left behind two
children by his live-in partner who are now under his mothers care and support. Herminia spent approximately P90,000.00 for the funeral and
burial expenses of her deceased son. The expenses were supported by receipts5 and admitted by the defense.6

Herminia filed a complaint for murder against accused-appellant. The complaint, docketed as I.S. No. 96-3246, was however dismissed for
insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of Caloocan City Prosecutor
Rosauro J. Silverio.7 Herminia appealed the order of dismissal to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice
Silvestre Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor of Caloocan City to file an information for
murder against the accused-appellant.8 Accordingly, the Information was filed and a warrant of arrest issued against accused-appellant on June 8,
1998. On October 16, 1998, appellant was arrested by agents of the National Bureau of Investigation (NBI).

Appellant is a well-known figure in their neighborhood and has several criminal cases pending against him in Caloocan City. He was charged with
frustrated homicide in 1984 and attempted murder in 1989.9

For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a neighbor; and (b) himself. He denies the killing of Joseph
Marquez. He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317 M. de Castro St., Bagong
Barrio, Caloocan City. He was having some drinks with his neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying
themselves, drinking and singing with the videoke. Also in the house were his wife, children and household help. At 10:00 P.M., Orlando and
Nelson went home and accused-appellant went to sleep. He woke up at 5:30 in the morning of the following day and learned that Joseph
Marquez, a neighbor, was shot to death. To appellants surprise, he was tagged as Josephs killer.10

Accused-appellant had known the victim since childhood and their houses are only two blocks apart. Joseph had a bad reputation in their
neighborhood as a thief and drug addict. Six days before his death, on September 23, 1996, accused-appellant caught Joseph inside his car trying
to steal his car stereo. Joseph scampered away. As proof of the victims bad reputation, appellant presented a letter handwritten by his mother,
Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the letter,
Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu, a prohibited drug, and was a thief. Herminia
was scared that eventually Joseph might not just steal but kill her and everyone in their household because of his drug habit.11

The accused-appellant likewise explained the two criminal cases filed against him in 1984 and 1989. The information for attempted murder was
dismissed as a result of the victims desistance while in the frustrated homicide case, the real assailant appeared and admitted his crime.12

In a decision dated June 22, 1999, the trial court found accused-appellant guilty and sentenced him to the penalty of death. The court also
ordered appellant to pay the heirs of the victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral damages of P60,000.00 and
exemplary damages of P50,000.00 and the costs of the suit. Thus:

"WHEREFORE, foregoing premises considered and the prosecution having established beyond an iota of doubt the guilt of accused
NOEL LEE of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, this
court, in view of the presence of the generic aggravating circumstance of dwelling and without any mitigating circumstance to offset
it, hereby sentences the said accused to suffer the extreme penalty of DEATH; to indemnify the legal heirs of the deceased civil
indemnity of P50,000.00; to pay the private complainant actual damages of P90,000.00 plus moral and exemplary damages of
P60,000.00 and P50,000.00, respectively; and to pay the costs.

Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure, as amended, let the entire records
hereof including the complete transcripts of stenographic notes be forwarded to the Supreme Court for automatic review and
judgment, within the reglementary period set forth in said section.

Hence, this appeal. Before us, accused-appellant assigns the following errors:









The assigned errors principally involve the issue of the credibility of Herminia Marquez, the lone prosecution eyewitness. Accused-appellant
claims that the trial court should not have accepted Herminias testimony because it is biased, incredible and inconsistent.

Herminias testimony on direct examination is as follows:

"x x x

ATTY. OPENA: Now who was your companion, if any, at that time?

WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep.

Q: What were you and your son, Joseph, doing then?

A: Watching TV.

Q: Will you please tell us your position, I am referring to you and your son in relation to the television set where you are watching
the show.

A: We were facing each other while watching television which is on the left side.

Q: Will you please tell us where exactly was your son, Joseph, seated while watching television?

A: At the end most of the sofa.

Q: The sofa you are referring to is the one near the window.

A: Yes, sir. Dikit lang po.

Q: Will you give us an idea or describe to us that window which you mentioned awhile ago?

A: Transparent glass.

Q: How high is it from the ground?

COURT: Which one?

ATTY. OPENA: The window glass?

WITNESS: About three feet from the ground.


Q: You said three feet. What do you mean by that? Is that window elevated from the ground?

A: The same height as this court window which is about three feet from the ground, and from one another about four by four
window [sic], three feet by the ground.

Q: Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow block?

A: Hollow block, po.

Q: How high is that hollow block that you were referring to?

COURT: She said three feet.


Q: Which is higher, that sofa which is posted near the window or the hollow block?

A: Hollow block.

Q: By how many inches or feet?

A: About half a foot.

Q: You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated?

ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa.

COURT: Sustained.


Q: When you said end of sofa which portion, the left side or the right side?

A: The right.

Q: Now, while you and your son were watching television, was there anything unusual that transpired?
A: Yes, sir.

Q: Tell us what was that all about.

A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa may bintana.

Q: What do you mean by the word "kamay?"

A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.

Q: What did you do with what you saw?

A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana, ganoon po, sabay
putok ng baril.

COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo?

A: (Witness demonstrating that the victim peeped through the window).

Q: And then?

A: At the same time the firing of the gun [sic] and I saw my son slumped.


Q: And after your son was slumped, what did you do?

A: I went to my son and carried him to take him to the hospital.

Q: How many shots did you hear?

A: Five shots.

Q: That was prior to helping your son?

A: Yes, sir.

Q: And how many times was your son hit?


Q: Objection, your honor. It was already answered. Because according to her it was five shots.

COURT: It does not follow that the victim was hit. So, the witness may answer.

WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement.

COURT: How about the other one?

A: Doon po sa semento.


Q: And who fired these shots?

A: Noel Lee.

Q: That Noel Lee that you are referring to, will you please point at him if he is around?

A: (Witness going down the witness stand and pointing to accused Noel Lee).

Q: How do you know that it was Noel Lee who shot your son?

A: Kitang kita ko po. Magkatapat po kami.

Q: Will you please describe to us?

A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng anak ko nanonood
ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko.

COURT: She was emotionally upset.

ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify?

xxx xxx xxx

WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko.


Q: You saw that the light was bright. Where were those lights coming from?

A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon sa alley katapat ng
bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang ilaw.

Q: After trying to help your son, what happened?

A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare.

Q: Meanwhile, what did the accused do after shooting five times?

A: He ran to the alley to go home.

Q: Now you said he ran to an alley towards the direction of their house. Do you know where his house is located?

A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.

Q: How far is that from your residence?

A: More or less 150 to 200 meters.

Q: Where did you finally bring your son?


Q: When you say MCU, are you referring to MCU Hospital?

A: Yes, sir. MCU Hospital.

Q: At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died.
COURT: 11:00 P.M.?

A: Yes, maam.

Q: Same day?

A: Yes, maam.

xxx xxx x x x."15

Herminias testimony is positive, clear and straightforward. She did not waver in her narration of the shooting incident, neither did she waffle in
recounting her sons death. She was subjected by defense counsel to rigorous cross and re-cross examinations and yet she stuck to her testimony
given in the direct examination. She readily gave specific details of the crime scene, e.g., the physical arrangement of the sofa and the television
set, the height of the sofa, the wall and the window, because the crime happened right in her own living room. She explained that she was unable
to warn Joseph because she was shocked by the sight of accused-appellant aiming a gun at her son. The tragic events unfolded so fast and by the
time she took hold of herself, her son had been shot dead.

A sons death in his mothers house and in her presence is a painful and agonizing experience that is not easy for a mother to forget, even with
the passing of time. Herminias testimony shows that she was living with a conscience that haunted and blamed her own self for failing to protect
her son or, at least, save him from death.

Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her affidavit of September 30, 1996 given before PO2
Rodelio Ortiz, Herminia declared that while she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The hand
and the gun came out of a hole in the window, i.e., "butas ng bintana." On cross-examination, Herminia stated that she saw a hand holding a gun
in the open window, i.e., "bukas na bintana." According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by her
statement on the witness stand.

The inconsistency between her affidavit and her testimony was satisfactorily explained by Herminia on cross-examination:

"x x x xxx xxx


Q: You said that you saw a hand from a hole in the window with a gun, is that correct?

A: Bukas na bintana. Not from a hole but from an open window.

Q: Madam witness, do you recall having executed a sworn statement before the police, right after the shooting of your son?

A: Yes, sir.

Q: I will read to you paragraph 8 of your statement which is already marked as your Exhibit "A" in which is stated as follows:
"Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996 habang ang
aking anak ay nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako naman ay nakaupo sa sopa katapat
ko siya subalit medyo malayo ng konti sa kanya, mayroon akong napansin na kamay na may hawak ng baril at nakaumang sa aking
anak sa may butas ng bintana," do you recall that?

A: Opo.

Q: What you saw from that butas is a hand with a gun, is that correct?

A: Opo.

Q: Madam witness, your window is just like the window of this courtroom?

A: Yes, sir.
Q: In your testimony, you did not mention what part of the window was that hand holding a gun that you saw? Is that correct?

A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin.

Q: So in your sinumpaang salaysay in the statement that you said butas na bintana is not correct?

A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko.

COURT: You show to the witness. There, butas na bintana.

WITNESS: Mali po ang letra, Bukas hindi butas.

xxx xxx x x x."16

Herminia corrected her affidavit by saying in open court that she saw the hand and the gun coming out of the open window, not from a hole in
the window. In her direct testimony, Herminia presented a photograph of her living room just the way it looked from her side on the night of the
shooting.17 The sofa on which Joseph was seated is against the wall, with the window a few inches above the wall. The window is made of
transparent glass with six (6) vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big spaces in between the
grills. The living room is well-lit and the area outside the house is also lit by a fluorescent lamp.

Between Herminias testimony in open court and her sworn statement, any inconsistency therein does not necessarily discredit the
witness.18 Affidavits are generally considered inferior to open court declarations because affidavits are taken ex-parte and are almost always
incomplete and inaccurate.19 Oftentimes, they are executed when the affiants mental faculties are not in such a state as to afford him a fair
opportunity of narrating in full the incident that transpired.20 They are usually not prepared by the affiant himself but by another who suggests
words to the affiant, or worse, uses his own language in taking the affiants statements.21

Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand coming from the window, she did not see the person
holding the gun, let alone who fired it.22 A complete reading of the pertinent portion of Herminias affidavit will refute appellants arguments, viz:

"x x x xxx xxx

T - Isalaysay mo nga sa akin and buong pangyayari?

S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay nanonood ng palabas sa T.V. ng
basketball malapit sa aming bintanan [sic] sa labas, at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng kaunti
sa kanya, mayroon akong napansin akong [sic] kamay na hawak-hawak na baril na nakaumang sa aking anak sa butas na bintana na
nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok ay tumama sa ulo ng aking anak kaya napayuko
siya, pagkatapos noon ay sunod-sunod na ang putok na narinig ko, mga limang beses, kaya kitang kita ko siya ng lapitan ko ang aking
anak at nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito papalabas ng iskinita papunta sa kanila.

xxx xxx x x x."23

It is thus clear that when Herminia approached her son, she saw that the person firing the gun was accused-appellant. Appellant continued firing
and then ran away towards the direction of his house. This account is not inconsistent with the witness testimony in open court.

Herminias declarations are based on her actual account of the commission of the crime. She had no ill motive to accuse appellant of killing her
son, or at least, testify falsely against appellant. Accused-appellant himself admitted that he and Herminia have been neighbors for years and
have known each other for a long time. Appellant is engaged in the business of buying and selling scrap plastic and Herminia used to work for him
as an agent.24 She would not have pointed to appellant if not for the fact that it was him whom she saw shoot her son.1wphi1.nt

Indeed, the Solicitor General points out that it was appellant himself who had strong motive to harm or kill Joseph. 25Appellant revealed that six
days before the shooting, he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant was drinking with his friends that
fateful night of September 29, 1996 does not rule out the possibility that he could have been at the scene of the crime at the time of its
commission. The victims house is merely two blocks away from appellants house and could be reached in several minutes.26

The lone eyewitness account of the killing finds support in the medico-legal report. Dr. Rosalie Cosidon found that the deceased sustained two
gunshot woundsone to the right of the forehead, and the other, to the left side of the back of the victims head.27 Two slugs were recovered
from the victims head. Judging from the location and number of wounds sustained, Dr. Cosidon theorized that the assailant could have been
more than two feet away from the victim.28 Both gunshot wounds were serious and fatal.29

Accused-appellant makes capital of Josephs bad reputation in their community. He alleges that the victims drug habit led him to commit other
crimes and he may have been shot by any of the persons from whom he had stolen.30As proof of Josephs bad character, appellant presented
Herminias letter to Mayor Malonzo seeking his assistance for Josephs rehabilitation from drugs. On rebuttal, Herminia admitted that she wrote
such letter to Mayor Malonzo but denied anything about her sons thievery.31

Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence, viz:

"Section 51. Character evidence not generally admissible; exceptions:--

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved
in the offense charged.

(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.

xxx xxx x x x."

Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion
generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation. 32 "Good moral
character" includes all the elements essential to make up such a character; among these are common honesty and veracity, especially in all
professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the
standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.33

The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating
thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the
parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the
business of the court is to try the case, and not the man; and a very bad man may have a righteous cause. 34 There are exceptions to this rule
however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases.

In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to
the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption
of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged.
This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against
him.35 Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when
such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might
otherwise be convicted not because he is guilty but because he is a person of bad character. 36 The offering of character evidence on his behalf is
a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.37 Once the
defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character. Otherwise, a
defendant, secure from refutation, would have a license to unscrupulously impose a false character upon the tribunal.38

Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.39 And this evidence must be "pertinent to
the moral trait involved in the offense charged," meaning, that the character evidence must be relevant and germane to the kind of the act
charged,40 e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for
embezzlement, character for honesty and integrity.41 Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended
party.42Character evidence, whether good or bad, of the offended party may be proved "if it tends to establish in any reasonable degree the
probability or improbability of the offense charged." Such evidence is most commonly offered to support a claim of self-defense in an assault or
homicide case or a claim of consent in a rape case.43

In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide.44 In rape and
acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is
material, the womans character as to her chastity is admissible to show whether or not she consented to the mans act.45 The exception to this is
when the womans consent is immaterial such as in statutory rape46 or rape with violence or intimidation.47 In the crimes of qualified
seduction48 or consented abduction,49 the offended party must be a "virgin," which is "presumed if she is unmarried and of good reputation,"50 or
a "virtuous woman of good reputation."51 The crime of simple seduction involves "the seduction of a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age x x x." 52 The burden of proof that the complainant is a woman of good reputation lies in
the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation.53

In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceaseds aggression; and (2) as
evidence of the state of mind of the accused.54 The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness,
gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor.55 When
the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable
belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.56

In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing.
Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between
the deceaseds drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony,
the claim that because of the victims bad character he could have been killed by any one of those from whom he had stolen, is pure and simple

Moreover, proof of the victims bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People
v. Soliman,57 a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the
prosecution, the trial court disallowed the same. The Supreme Court held:

"x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of
an offense (Section 15, Rule 123),58 such is not necessary in the crime of murder where the killing is committed through treachery or
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, p. 126). This rule does not apply to cases of murder."59

In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that
there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without
any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The
suddenness and unexpectedness of the attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman, where the
killing of the victim was attended by treachery, proof of the victims bad character is not necessary. The presence of this aggravating
circumstance negates the necessity of proving the victims bad character to establish the probability or improbability of the offense charged and,
at the same time, qualifies the killing of Joseph Marquez to murder.

As to the aggravating circumstance of evident premeditation, this cannot be appreciated to increase the penalty in the absence of direct
evidence showing that accused-appellant deliberately planned and prepared the killing of the victim.60

Neither can the aggravating circumstance of dwelling found by the trial court be applied in the instant case. The Information alleges only
treachery and evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, a complaint or
Information must specify the qualifying and aggravating circumstances in the commission of the offense.61 The Revised Rules of Criminal
Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant

Accordingly, without the aggravating circumstance of dwelling, the penalty of death was erroneously imposed by the trial court. There being no
aggravating circumstance, there is no basis for the award of exemplary damages.62

IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is
affirmed insofar as accused-appellant Noel Lee is found guilty of murder for the death of Joseph Marquez. The death sentence imposed by the
trial court is however reduced to reclusion perpetua, there having been no aggravating circumstance in the commission of said crime. Except for
the award of exemplary damages, the award of civil indemnity, other damages and costs are likewise affirmed.

G.R. No. 132164 October 19, 2004


ALLYSON BELAGAN, respondent.



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.2This 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 Decision3 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.


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 Decision4 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,

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

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.


Upon appeal, the Civil Service Commission (CSC), on September 23, 1996, promulgated Resolution No. 9662136affirming 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

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


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."

Respondent claimed that the numerous cases filed against Magdalena cast doubt on her character, integrity, and credibility.

In its Resolution No. 97242310 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

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:

xxx xxx

(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 honesty21 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.


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?


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
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

The following circumstances shall be appreciated:

xxx xxx

j. length of service

xxx xxx

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

G.R. No. 130601 December 4, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

RAFAEL DIOPITA y GUZMAN, accused-appellant.



RAFAEL DIOPITA y GUZMAN appeals from the Decision of the Regional Trial Court of Davao City
finding him guilty of Robbery with Rape, imposing upon him the penalty of reclusion perpetua and
ordering him to pay the victim, Dominga Pikit-pikit, 8,500.00 for actual damages and 50,000.00
for moral damages.1

Culled principally from the testimonies of Dominga Pikit-pikit and PO3 Steve dela Cruz, the
inculpatory facts follow: At about 9:00 o'clock in the evening of 16 April 1995 complaining witness
Dominga Pikit-pikit, 24 years old, was walking towards Emiville Subdivision, Diversion Road, Sasa,
Davao City, on her way home from work. Suddenly, a man appeared from behind, looped his arm
around her neck and warned her not to shout or else she would die.2The man then dragged her
through the banana plantation towards the cornfields where the plants were a meter high and far
apart.3 When Dominga shouted for help, the man pushed her to the ground and punched her on the
stomach saying, "Leche ka, why are you shouting? What do you want me to do, make you

Dominga Pikit-pikit got a good look at the man, who turned out to be accused-appellant Rafael
Diopita y Guzman, as he sat on her thighs and proceeded to divest her of her belongings - ladies
watch, bracelet, ring with russian diamonds, wedding ring and 1,000.00 cash. With the full moon
shining on his face, the victim clearly saw Diopita place the items on the right pocket of his shorts.5

Thereafter, accused-appellant Diopita announced his desire to have carnal knowledge of Dominga.
Forthwith, he pulled up her t-shirt and unfastened her brassiere. He also loosened her belt, unzipped
her pants and struggled to pull it down, nearly ripping her zipper. Annoyed at the tightness of her
pants, Diopita hit her and ordered her to help him pull them down.6 Dominga, fearing for her life and
thinking of Diopitas punches, obeyed. She pulled her pants to her hips. Then accused-appellant
forcibly pulled them down further and got irritated in fact when he was told that she was wearing a
girdle and panty. In frustration, he punched her repeatedly and kept on muttering, "Why is this very
tight? What kind of panty is this?" Finally, he succeeded in pulling the girdle and panty down.7

Accused-appellant Diopita then took off his shorts. He kissed the victim, lasciviously caressed her
breasts, bit her nipples, and fornicated with her. As he was sexually assaulting her, Dominga made
desperate struggles and frantic calls for help but her efforts proved futile until he finally satiated his
lust. He then warned Dominga not to tell anyone and that should he hear that she told anybody
about the incident he would shoot her to death. Then he dressed up and left, walking casually to the
opposite direction of the subdivision before disappearing in the darkness.8

Exhausted, Dominga slowly stood up, put on her clothes and walked away in the direction of her
house. Finding it locked, she asked help from her neighbors who called the police. Thereafter,
Dominga was brought to Precinct No. 4 of Sasa, Davao City, where SPO1 Stephen Batacan entered
her complaint in the police blotter. Later, she was examined by Dr. Floranne Lam-Vergara at the
Davao Medical Center who found her "positive for spermatocytes."9
PO3 Steve dela Cruz, who was on duty at the Intelligence and Investigation Section, made a follow-
up on the case. He went to the victims house and interviewed her between the hours of 1:00 oclock
and 3:00 oclock in the morning of the following day, 17 April 1995. Dominga gave a description of
the suspect and his possible whereabouts.10Acting on that information, PO3 dela Cruz went to the
scene of the crime to investigate and there he recovered a colored white/yellow, size ten (10)
slipper. Since the victim earlier disclosed that the suspect headed north after committing the crime,
he proceeded to that direction where he came upon four (4) houses about fifteen (15) to fifty (50)
meters away from the scene of the crime. A back-up team was called and they rounded up all the
residents therein. Afterwards, four (4) men who fitted the description of the suspect were invited to
the police station for questioning. They were Placido Laput, William Silvano, Vicente Silvano and
accused-appellant Rafael Diopita y Guzman.11

At about 6:00 oclock in the morning of 17 April 1995, the police invited Dominga to identify the
suspect at the police station. Thereat, Dominga saw the four (4) men in a police line-up and readily
pointed at accused-appellant.12 The police then had him try on the recovered slipper; it easily fitted
him.13 Thus, Diopita was detained while the others were released.

The defense denied the charge and invoked alibi. Accused-appellant claimed that between 8:30 to
12:00 oclock in the evening of 16 April 1995 he was with his wife Flora, son Ryan and fellow
Jehovahs Witnesses Roger Custorio and Ruben Suarez at the house of Eulalio Nisnisan for an
informal Bible session upon the invitation of Juan Nisnisan.14 Accused-appellant also claimed that
during those hours, he never left the place. Flora, Roger, Ruben, Eulalio and Juan corroborated his
alibi and testified on his good moral character as a ministerial servant of their faith.

On 18 June 1997, the trial court formally rejected his defense of alibi and convicted him of the crime
charged; consequently, accused-appellant is now before us on appeal. The trial court ruled -

Alibi is a weak defense because it can easily be fabricated that it is so easy for witnesses to get
confused as to dates and time. The precision with which the witnesses for the defense, who are his
co-members in the Jehovahs Witnesses, quoted the respective hours when the participants in the
Bible sharing session supposedly arrived is, at best, self-serving and deserves scant consideration
because of the facility with which it may be concocted and fabricated.

On the other hand, private complainant Dominga Pikit-Pikit positively identified Rafael Diopita as the
person who robbed and raped her on April 16, 1995. She testified in a clear, straightforward and
convincing manner and no ill-motive on her part had been shown to have prompted her to testify
falsely. The failure of the defense to attribute any ill-motive on the part of Pikit-Pikit to pin
responsibility on Diopita adds more credence to complainants testimony.

In a long line of cases, it has been held that the defense of alibi cannot prevail over the positive
identification of the accused by the victim. Pikit-Pikit testified that she was able to see the face of her
attacker because the moon was shining brightly that evening. This Court takes judicial notice of the
fact that in the month of April 1995 the full moon came out on April 15, 1995, a day before the date
of the crime.

We affirm his conviction; the guilt of accused-appellant has been established by the evidence
beyond reasonable doubt.

First. Complaining witness Dominga Pikit-pikit positively and categorically identified accused-
appellant as her assailant, first during the police line-up where she singled him out from among the
four (4) suspects and, later during the trial where she pointed at accused-appellant as the one who
robbed and sexually molested her -
Q: Where did you go?

A: To the Police Station, there were four persons who lined up for identification.

Q: And then?

A: First, when I arrived, I peeped behind the place where there were four persons lining up. After that
I went to the place where they were receiving visitors and I saw the four persons who were there
already and lined up.

Q: And then?

A: After that the police told me to identify the person who molested me, and I pointed to that person
there (witness pointing to the accused whom she previously identified).15

From the circumstances of this case, it cannot be denied that complaining witness Dominga Pikit-
pikit had a good look at the face and physical features of accused-appellant during the commission
of the crime. While the robbery was in progress, the moonlight sufficiently illumined his face and
clothes, thus making it possible for private complainant to identify him.16 During the rape, private
complainant was as close to accused-appellant as was physically possible, for a man and a woman
cannot be more physically close to each other than during a sexual act.17 Victims of criminal violence
naturally strive to know the identity of their assailants and observe the manner the crime was
perpetrated, creating a lasting impression which may not be erased easily in their memory.18 There is
therefore no reason to doubt the accuracy of private complainants visual perception of accused-
appellant as the criminal. Nor is there any reason to doubt her honesty of intention for there is no
showing that she implicated accused-appellant due to an evil or corrupt motive.

We do not subscribe to accused-appellants contentions that the complaining witness hesitated to

point at him during the police line-up, and that she was just forced by the police to choose him from
among the four (4) suspects. The identification was made with such certainty by the complaining
witness that even accused-appellant had to comment on it -

Atty. Galicia: What made you say she was hesitant to point at you? x x x x

Rafael Diopita: Because during that time, sir, when we confronted each other in the police station,
she was looking at me when there were four of us there. So, I asked why x x x x19

The foregoing testimony belied the allegation of hesitancy on the part of Dominga Pikit-pikit to
pinpoint accused-appellant during the line-up. His very own words project his guilt as well. Only the
guilty experiences neurotic fear in the face of imminent discovery of his malefaction. His paranoia
colors his interpretation of the events during the line-up. Consider accused-appellants assertion that
Dominga Pikit-pikit was forced by the police to point at him, and Prosecutor Esparagoza's objection
thereto -

Sur-rebuttal of Atty. Galicia: Mr. Diopita, according to private complainant Dominga Pikit-pikit during
her rebuttal testimony that she was not forced by the police to point at you when you were in the
police station. What can you say to that?

Rafael Diopita: That woman hesitated to point at me but the police said you point at him.

Q: What made you say she was hesitant to point at you?

Prosecutor Esparagoza: The witness said "ITUDLO! ITUDLO!" (YOU POINT! YOU POINT!). He did
not say he was the one pointed to, your Honor.20

Gleaned from the aforequoted testimony was the absence of suggestiveness in the identification
process. There were four (4) men in the line-up and the police did not specifically suggest to
Dominga to point particularly at accused-appellant. Not even the shodding of the slipper recovered
from the scene of the crime could provide any suggestiveness to the line-up as it came after
accused-appellant was already identified by Dominga Pikit-pikit.

Second. In light of this positive and direct evidence of accused-appellants culpability, the trial court
correctly discarded his defense of alibi. It is an elementary rule that alibi cannot prevail over the clear
and positive identification of the accused as the very person who committed the crime. Moreover, in
order to justify an acquittal based on this defense, the accused must establish by clear and
convincing evidence that (a) he was in another place at the time of the commission of the offense;
and, (b) it was physically impossible for him to be at the scene of the crime at the time it was
committed.21 This, accused-appellant miserably failed to do.

Accused-appellant admitted that at the time in question he was with his wife, son and fellow
members of the Jehovahs Witnesses at the house of one Eulalio Nisnisan supposedly attending
Bible studies, which is merely fifteen (15) to fifty (50) meters away from the crime scene.
Considering the short and insignificant distance, it was not impossible for accused-appellant to
surreptitiously slip away from the house of Nisnisan, commit the crime and then return without
arousing the suspicion of his companions who were then busy with their Bible session. This is
obviously the situation in this case and, taken together with the preceding considerations, we
likewise reject this poor and discredited defense as did the trial court. Verily, even if the defense of
alibi is corroborated by the testimony of the friends of accused-appellant, it deserves the barest
consideration and will not be given weight if it would not preclude any doubt that he could have been
physically present at the locus criminis or its immediate vecino at the time of its commission.22

Third. Perhaps aware of the crushing impact of complainants positive identification of accused-
appellant, the defense attacked the supposed inconsistencies and discrepancies in her testimony in
a vain attempt to make it completely unreliable, claiming that: (a) the victim declared that the culprit
wore short pants with a zipper, and he had no short pants with zipper; (b) the yellow slipper retrieved
by the police did not belong to him as his slippers were colored blue, with his initials inscribed
thereon; and, (c) the description given by complainant in the police blotter did not fit the physical
appearance of accused-appellant.

We are not persuaded. Suffice it to say that these are mere trifles which do not detract from
complainants straightforward and consistent identification of accused-appellant as the one who
robbed and raped her. Trivial inconsistencies do not shake the pedestal upon which the
complainants credibility rests. On the contrary, they are taken as badges of truth rather than as
indicia of falsehood for they manifest spontaneity and erase any suspicion of a rehearsed
testimony.23 Furthermore, entries in police blotters should not be given undue significance or
probative value for they are normally incomplete and inaccurate, sometimes from either partial
suggestion or want of suggestion or inquiry.24

Fourth. We now deal with the more substantial arguments raised by accused-appellant in his brief.
He tenaciously maintains that it was impossible for him to have committed the crime charged since
he is a person of good moral character, holding as he does the position of "Ministerial Servant" in the
congregation of Jehovahs Witnesses, and that he is a godly man, a righteous person, a responsible
family man and a good Christian who preaches the word of God.
We are not impressed. The fact that accused-appellant is endowed with such "sterling" qualities
hardly justifies the conclusion that he is innocent of the crime charged. Similarly, his having attained
the position of "Ministerial Servant" in his faith is no guarantee against any sexual perversion and
plunderous proclivity on his part. Indeed, religiosity is not always an emblem of good conduct, and it
is not the unreligious alone who succumbs to the impulse to rob and rape. An accused is not entitled
to an acquittal simply because of his previous good moral character and exemplary conduct. The
affirmance or reversal of his conviction must be resolved on the basic issue of whether the
prosecution had discharged its duty of proving his guilt beyond any peradventure of doubt. Since the
evidence of the crime in the instant case is more than sufficient to convict, the evidence of good
moral character of accused-appellant is unavailing.

Accused-appellant likewise bewails and assigns as reversible error the failure of the trial court to
give credence to the testimonies of the defense witnesses. He argues that these are Jehovahs
Witnesses, and as such, they are God-fearing people who would never lie as to his whereabouts at
the time in question. This argument is as puerile as the first. We quote once more, and with
approval, the pertinent portion of the trial courts ruling on this point -

x x x x it is so easy for witnesses to get confused as to dates and time. The precision with which the

witnesses for the defense, who are his co-members in the Jehovahs Witnesses, quoted the
respective hours when the participants in the Bible sharing session supposedly arrived is, at best,
self-serving and deserves scant consideration because of the facility with which it may be concocted
and fabricated (underscoring supplied).

The matter of assigning values to the declarations of witnesses is best and most competently
performed by the trial court who had the unmatched opportunity to observe the demeanor of
witnesses while testifying, and to assess their credibility using various indicia available but not
reflected in the records.25 Hence, the court a quo's appraisal on the matter is entitled to the highest
respect, and will not be disturbed on appeal unless there is a clear showing that it overlooked,
misunderstood or misapplied some facts or circumstances of weight and substance that would affect
the result of the case.26 There is no compelling reason in the present case to depart from this rule.

In sum, we find that all the elements of robbery with rape are present in this case. There was
asportation of the jewelry and cash of the victim by means of force and violence on her person,
showing the initial animus lucrandi of accused-appellant,27 and then his lecherous intent when he
raped his victim. Accordingly, we hold that the court below did not commit any reversible error in
ruling that the requisite quantum of evidence for a finding of guilt has been sufficiently met by the
prosecution as to call for our affirmance of the judgment of the court a quo.28

However, in addition to the actual and moral damages awarded by the trial court in the amounts of
8,500.00 and 50,000.00, respectively, another amount of 50,000.00 should have also been
awarded to the victim Dominga Pikit-pikit for civil indemnity, as it is mandatory upon a conviction of
rape. Such indemnity is distinct from moral damages and based on different jural foundations.29

WHEREFORE, the assailed Decision of the Regional Trial Court of Davao City, convicting accused-
appellant RAFAEL DIOPITA y GUZMAN of ROBBERY WITH RAPE, sentencing him to reclusion
perpetua, and ordering him to pay DOMINGA PIKIT-PIKIT the sums of 8,500.00 for actual
damages and 50,000.00 for moral damages, is AFFIRMED with the MODIFICATION that, in
addition, civil indemnity of another 50,000.00 is further awarded to her. Costs against accused-



In a letter-complaint, complainant Capistrano Obedencio, Jr., charged


respondent Judge Joaquin M. Murillo, Presiding Judge of the Regional Trial

Court of Medina, Misamis Oriental, Branch 26, of unjustly dismissing Criminal
Case No. 1401-M (2000) for rape, entitled People v. Dexter Z. Acenas.
Complainant averred that on May 3, 2000, he and his wife assisted their
14-year-old daughter, Licel Acenas Obedencio, in filing with the Office of the
Provincial Prosecutor, Hall of Justice in Cagayan de Oro City, a criminal
complaint for rape allegedly committed upon her when she was 11 years old
by her uncle, Dexter Z. Acenas. After the preliminary investigation, which the
accused did not attend, the case was filed in respondent judges sala. [2]

On May 25, 2001, following Licels abduction from their

house, complainant sought to secure from the court a copy of the warrant of

arrest issued against the accused. To his great surprise, respondent judge
told him that the case had been dismissed three days earlier on May 22,
2001. According to respondent judge, Licel Obedencio had come to court,

accompanied by her maternal grandparents and Asst. Provincial Prosecutor

Emmanuel Hallazgo. There she was presented to affirm her affidavit of
desistance. [5]

Complainant claims that the dismissal was marred by serious

irregularities. He specifically lamented the absence of any subpoena or notice
of hearing from the court to him, his wife, or their counsel. He believes that
since Prosecutor Hallazgo, Licels maternal grandparents, and the accused
are relatives, this fact contributed to the unjust dismissal of the case.

In his comment, respondent judge stated that he heard Criminal Case No.

1401-M (2000) on May 22, 2001, upon the request of Prosecutor Hallazgo
who was prosecuting the case. During the hearing, Prosecutor Hallazgo
presented an affidavit of desistance executed by Licel. Then, Licel took the
witness stand and was asked on matters contained in her affidavit. She
recanted the allegations in her affidavit-complaint and denied having been
molested by her uncle, Dexter. She explained that her mother forced her to
file the rape charge because of family inheritance problems. Respondent
judge asserts that, with the filing of the affidavit of desistance, the court had
no other recourse but to dismiss the case. [8]

The Office of the Court Administrator (OCA), through Deputy Court

Administrator Christopher O. Lock, found respondent judge liable for
ignorance of the law for unjustly dismissing Criminal Case No. 1401-M
(2000). OCA recommended that respondent judge be reprimanded with
warning that a repetition of the same or similar offense would be dealt with
more severely. [9]

This Court agrees with the findings of the OCA, but not with the
recommended penalty.
Article 220(6) of the Family Code gives to complainant and his wife the

right and duty to represent Licel in all matters affecting her interest. Thus, they
were entitled to be notified and to attend every hearing on the case. As a
judge, respondent is duty-bound to acquaint himself with the cases pending
before him. He should have known that Licel filed the criminal complaint with

the assistance of her parents, who are her natural guardians. It was [12]

incumbent upon respondent judge to inquire into the reason behind their
nonappearance before the court instead of simply relying on the bare
explanation of the defense counsel that he and his client could not find Licels
parents. Respondent judge ought to remember that the accused, Dexter

Acenas, is the maternal uncle of the victim. That Licel came to court with her
maternal grandparents, and not her parents, on the day she was examined to
affirm her affidavit of desistance, should have alerted respondent judge to be
more circumspect. Being still a minor, Licel cannot fully comprehend for
herself the impact and legal consequence of the affidavit of desistance. Given
her tender age, the probability is that Licel succumbed to illicit influence and
undue pressure on her to desist from pursuing her complaint.
Licel was only 14 years old, definitely a minor, on May 22, 2001, when she
was presented before respondents sala to affirm the execution of her affidavit
of desistance. This being the case, said affidavit should have been executed
with the concurrence of her parents. Licel could not validly give consent to an
affidavit of desistance, for a minor is incompetent to execute such an
instrument. Yet, notwithstanding the absence of her parents conformity to the
affidavit of desistance and lack of notice to them or their lawyer of the
scheduled hearing, respondent judge dismissed the criminal case. Truly, he
should have exercised more prudence and caution instead of perfunctorily
dismissing the case, considering the nature and gravity of the offense
At the very least, herein respondent should have appointed a guardian ad
litem for Licel, to protect her welfare and interest, instead of hastily dismissing
the rape case. The Rule on Examination of a Child Witness, which took [14]

effect on December 15, 2000, governs the examination of child witnesses who
are victims of, accused of, or witnesses to a crime. In the absence or
incapacity of the parents to be the guardian, Section 5 (a) of said rule [15]

provides that the court may appoint a guardian ad litem to promote the best
interests of the child. This rule was already in effect when respondent judge
dismissed the rape case on May 22, 2001.
Respondent is reminded that a judge is the visible representation of the
law and, more important, of justice. A judge owes it to the public to be

knowledgeable, for ignorance of the law is the mainspring of injustice. A [17]

judge must know the laws and apply them properly in all good faith. Rule [18]

3.01, Canon 3 of the Code of Judicial Conduct requires a judge to be faithful

to the law and to maintain professional competence. He should conduct the
functions and perform the duties of his office with due regard to the integrity of
the system of the law itself, remembering that he is not a depository of
arbitrary power, but a judge under the sanction of law. Where the law[19]

transgressed is simple and elementary, the failure to know it constitutes gross

ignorance of the law. [20]

For respondent judges infraction, the penalty of reprimand, recommended

by the OCA, is inapplicable. It is too light and incommensurate to the gravity of
the administrative offense charged and proved. Instead, the penalty of fine is
proper in this case, following Sandoval v. Garin, in the amount

of P10,000.00.
WHEREFORE, the respondent Judge Joaquin M. Murillo, Presiding Judge
of the Regional Trial Court of Medina, Misamis Oriental, Branch 26, is
found LIABLE for gross ignorance of the law in connection with the unjust
dismissal of Criminal Case No. 1401-M (2000). He is ORDERED to pay the
fine of Ten Thousand Pesos (P10,000) and ADMONISHED to be more
circumspect in the performance of his judicial duties and functions. He is
further warned sternly that a repetition of the same or similar offense would be
dealt with more severely.
G.R. No. 137933 January 28, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

VALENTIN BARING, JR., accused-appellant.


Valentin Baring, Jr., herein accused-appellant, was indicted for statutory rape committed against a
seven-year-old girl in an information that reads-

"That prior to August 2, 1997 and on several occasions thereto, in the Municipality of
Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd designs, by means of force, violence and intimidation
taking advantage of his superior strength over the person of the victim who is only seven (7)
years old, did, then and there, wilfully, unlawfully and feloniously, have carnal knowledge of
one Jennifer Donayre, against her will and consent, to her damage and prejudice.


On his arraignment accused-appellant pleaded not guilty to the crime charged.

After trial, the Regional Trial Court of Imus, Cavite rendered a decision dated January 20, 1999,
convicting accused-appellant of rape, to wit

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape,
the accused-Valentin Baring Jr. is sentenced to die by lethal injection and to pay the victim
an indemnity of 50,000.00 plus moral damages of another 50,000.00 plus the cost of this


In a sworn complaint,3 Jennifer Donayre accused Valentin Baring, Jr., her grandmothers common
law husband, of raping her on several occasions. It appears that Jennifer was living with her
grandmother in Dasmarias, Cavite. She does not know her real father since her mother and father
were separated.4 Since 1990, when she was about 8 months old5 until 1997, she was left under her
grandmothers care and custody. She calls Valentin Baring, Jr. as "Papa."6

According to Jennifer, the repeated sexual abuse happened when she was about 6 years old
whenever she was left alone in the house. Accused-appellant would touch her private parts, and on
such occasions, accused-appellant would remove her panty, mount on her and violate her. She
informed her grandmother that accused-appellant sexually abused her.7

On July 29, 1997, Jenelyn Donayre-Mendoza visited her daughter Jennifer, herein victim, in
Dasmarias, Cavite. She learned from her daughter that the latter was sexually abused by accused-
appellant. Acting on her daughters accounts of sexual abuse, she took Jennifer to the National
Bureau of Investigation and filed a complaint. Thereafter, Jennifer underwent a medical examination
at the Philippine National Police (PNP) Crime Laboratory Service in Camp Crame, Quezon City. Dr.
Dennis G. Bellen, the medico-legal officer at Camp Crame found that Jennifer was in "non-virgin
state physically." The examination disclosed a "congested, fleshy-type hymen with shallow healing
laceration at 9 oclock position and the external vaginal orifice admits tip of the examiners smallest

For his defense, accused-appellant denied the allegations against him.9 According to accused-
appellant, he has been living with Jennifers grandmother for ten (10)10 or eighteen (18)
years.11 Accused-appellant claimed that Jennifer was not living with them during the time the alleged
rape occurred.12 Later on, he testified that prior to July, 1997, Jennifer was living with them since
1990.13 However, Jennifer was taken from them sometime in July 1997, but he does not know why.14

The trial court meted out its judgment of conviction on the basis of the victims clear, trustworthy and
positive testimony that she was raped several times by accused-appellant. Because of the penalty
imposed, this case is now before us on automatic review.

On April 20, 1999, accused-appellant, through his counsel, filed a petition before this Court to
dismiss the case that is subject of our automatic review because (i) the three-page double-spaced
decision of the trial court is bereft of material facts supporting the conviction; (ii) the medico-legal
certificate is merely a scrap of paper since the physician who conducted the examination was not
presented as a witness that deprived accused-appellant of his right to cross-examination; (iii) the
case of attempted homicide filed by the victims grandmother against accused-appellant was
provisionally dismissed; and (iv) accused-appellant was merely a "fall guy" and that another person
is responsible for the commission of the crime charged against him.15

In the appellants brief filed on November 4, 1999, accused-appellant assigns the following errors-

"The lower court erred:

"I. In promulgating a brief and short decision with material facts that have been omitted with
no allusions to the transcripts of records erroneous of tenses and grammar jotted by the
Court Stenographer.

"II. In denying the accused his right to plead for a DNA Test to determine that the blood
found in the panty of the victim is not his but of another man, Venancio Mendoza, live-in
husband of Jennelyn, mother of Jennifer Donayre, the victim.

"III. In not finding the accused as a fall guy framed up to take the place of Venancio
Mendoza, live-in husband of Jennelyn, mother of Jennifer, whose behavior in the courtroom
as a witness has been beyond normal."16

The Philippine Constitution no less, mandates that no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is based. 17 This vital
requirement is not only demanded from the courts. Quasi-judicial bodies are similarly required to
give basis for all their decisions, rulings or judgments pursuant to the Administrative Code18 whose
roots may also be traced to the Constitutional mandate.

A decision need not be a complete recital of the evidence presented. So long as the factual and
legal basis are clearly and distinctly set forth supporting the conclusions drawn therefrom, the
decision arrived at is valid. Nonetheless, in order to effectively buttress the judgment arrived at, it is
imperative that a decision should not be simply limited to the dispositive portion but must state the
nature of the case, summarize the facts with references to the record, and contain a statement of the
applicable laws and jurisprudence and the tribunals assessments and conclusions on the case. This
practice would better enable a court to make an appropriate consideration of whether the dispositive
portion of the judgment sought to be enforced is consistent with the findings of facts and conclusions
of law made by the tribunal that rendered the decision.19 Compliance with this requirement will
sufficiently apprise the parties of the various issues involved but more importantly will guide the court
in assessing whether the conclusion arrived at is consistent with the facts and the law.

In the case at bar, the trial courts decision may cast doubt as to the guilt of accused-appellant. Such
doubt may be engendered not by the lack of direct evidence against accused-appellant but by the
trial courts failure to fully explain the correlation of the facts, the weight or admissibility of the
evidence presented for or against the accused, the assessments made from the evidence
presented, and the conclusions drawn therefrom after applying the pertinent law as basis of the

Accused-appellant claims that the trial court erred in convicting him of the crime of rape despite
prosecutions failure to present the examining physician to appear in court depriving him of his
constitutional right to confront a witness against him.20 However, a review of the transcript of
stenographic notes reveal that accused-appellants counsel waived presentation of the medico-legal
officer and thus, was not deprived of his constitutional right to confront said witness, to wit-


Your Honor, I was informed by the mother of the private complainant that the doctor is no
longer connected with the Crime Laboratory Service at Camp Crame, Quezon City but was
reassigned to the Eastern Police District at Mandaluyong City.


I just prefer that a subpoena be sent. We have to ask for the postponement.


We can dispense with the testimony.


Provided this is admitted.


Do you admit the due execution and authenticity of the report of the doctor?


We admit everything written here because (sic) doctor says.


Yes, whatever is written there, do you admit that?


Yes, your Honor.


No need to present the doctor


We will no longer present Dr. Dennis G. Bellen of the Philippine National Police Crime
Laboratory Service at Camp Crame, Quezon City. We have here the xerox copy of the
medico legal report no. M-2831-97.


Will you show that to Atty. Abubakar.


Yes, your Honor.



You dispense the testimony of the doctor.21

A medical certificate after all is not indispensable to prove the commission of rape. 22 It is well
entrenched in our jurisprudence that a medical examination of the victim is not indispensable in a
prosecution for rape inasmuch as the victims testimony alone, if credible, is sufficient to convict the
accused of the crime.23 Besides, testimonies of rape victims who are of tender age are credible,24 and
the testimonies of child-victims are given full weight and credit.25

Accused-appellant likewise impugns the credibility of the victim by pointing out that the rape was
filed one year after its commission, which allegedly leaves doubt as to the real identity of the culprit.

Delay in reporting an incident of rape does not create any doubt over the credibility of the
complainant nor can it be taken against her.26 The following realities justified the delay in the filing of
the case against accused-appellant: (1) the victim was merely six years old when she was sexually
abused; (2) the victim lived separately from her mother and was left under her grandmothers care;
and, (3) the victims sexual abuser happens to be her step-grandfather.

According to accused-appellant, he was simply framed-up and that another person also raped the
victim.27 He avers that his allegation is supported by the testimony of the victims mother Jenelyn that
the victim was likewise abused by the latters husband.

The categorical testimony of the victim that she was raped by accused-appellant cannot be
overturned by the bare denial and defense of being framed-up interposed by accused-appellant.
The victim made a positive, clear and categorical declaration pointing to accused-appellant as the
person who sexually ravaged her-

"Q: Are you the same Jennifer Donayre the private complainant against the accused
Valentin Baring, Jr.?
"A: Yes, sir.

"x x x xxx xxx

"Q: Who is your father?

"A: I do not know the name of my father because my father and mother are separated.

"Q: If your father is in the courtroom can you point to him?

"A: Yes, sir. (Witness pointing to a man inside this courtroom when asked given [sic] his
name as Valentin Baring.)

"Q: Is he your true father?

"A: No sir. He is my stepfather.

"Q: You were pointing to your stepfather, do you know what things or particular things, if
any, he did to you?

"A: Yes, sir.

"Q: What were those particular things your stepfather had done to you?

"A: He raped me.

"Q: When your stepfather raped you, what actually did your stepfather do to you?

"A: He removed my panty.

"Q: What did your stepfather do after removing your panty?

"A: He placed himself on top of me.

"Q: Was he naked when he placed himself on top of you?

"A: Yes, sir.

"Q: When he was on top of you, did he place his penis inside your private parts?

"A: Yes, sir.

"Q: What did you feel when his penis was inside your private parts, if any?

"A: I felt pain.

"Q: Was your private part bleeding as a result of the insertion of the penis of your
stepfather into your private parts?

"A: Yes, sir.

"Q: Did he kiss you while he was on top of you?

"A: Yes, sir.

"Q: What parts of your body or face was kissed?

"A: My cheek.

"Q: Where did this happen?

"A: Dasmarias, Cavite.

"Q: In whose house or place?

"A: In the house of my grandmother.

"Q: Who are the residents of that house at that time?

"A: At that time nobody was in the house because they were working.

"xxx xxx xxx

"Q: Can you recall if the rape you mentioned to us happened while you were 7 years old, 6
years old? What was your age then if you can recall?

"A: 6 years old.

"Q: How many times did your stepfather do to you these things you mentioned to us that is
by placing (sic) on top of you and inserting his penis into your private parts and kissing you?

"A: 10 times.

"Q: Do you know how to count?

"A: Yes, sir.

"Q: How many is this? (prosecutor is depicting two fingers)

"A: Two, sir.

"Q: How about this, how many? (Prosecutor is depicting five fingers).

"A: Five, sir.

"Q: How about this?(Prosecutor is depicting 10 fingers)

"A: Ten, sir.28

Accused-appellant even contends that the failure of the prosecution to establish the dates when the
other alleged rapes were committed justifies the outright dismissal of the case.29
Failure to specify the exact date or time when the rapes occurred does not ipso facto make the
information defective on its face.30 When all the essential elements of the crime of rape are stated in
the information, an accused is sufficiently apprised of the charged against him. Moreover, the
precise time of the commission of the crime of rape is not an essential element of rape. 31 Neither is
the exact date of commission of rape an element of the crime32 for the gravamen of the offense of
rape is sexual intercourse without consent.33

Accused-appellant contends that the trial court denied him his right to subject the blood found on the
victims panty for DNA testing.

The records reveal that accused-appellants counsel initially asked the court to subject the alleged
blood found in the victims panty to a DNA test for comparison with accused-appellants
blood.34 However, he voluntarily withdrew his proposition.35 Obviously, accused-appellants counsel is
misleading the Court. It was even accused-appellants counsel who recalled the submission for DNA
testing. The alleged denial of accuseds right to avail of the DNA tests is a futile attempt to confuse
the issues. He lost sight of the categorical testimony of the victim pinning him down as the
perpetrator. It would have been more prudent for him to attack this damaging evidence directly. It
must be noted that in the prosecution of rape cases, the presentation of the bloodstained panty is
not even essential.36 The victims credible testimony, standing alone, is sufficient basis for the
conviction of accused-appellant.

Cases subject of our review, especially those in the nature of child sexual abuse, often involve
victims of tender years. On account of the increased number of children coming into the realm of the
judicial system, we adopted the "Rule on Examination of a Child Witness" to govern the examination
of child witnesses who may either be victims, accused or witnesses to a crime.37 This rule ensures an
environment that allows children to give reliable and complete evidence, minimize trauma,
encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.38

In line with our foregoing thrust to protect children, we observed the peculiar physical examination
performed by the doctor on the seven-year-old victim in this wise-


There is absence of pubic hair. Labia majora full, convex and slightly gaping with the pinkish
brown labia minora presenting in between. On separating, the same disclosed a congested,
fleshy-type hymen with shallow healing laceration at 9 o'clock position. External vaginal
orifice admits tip of the examiners smallest finger."39 (emphasis ours)

This Court is disturbed by the method of physical examination done on the seven-year-old victim.
We noticed that in the examiners effort to show the existence of abuse, the examining physician
inserted his smallest finger, as shown in the medico-legal report that the external vaginal orifice
admits tip of the examiner's finger.

It bears to stress that this particular manner of establishing evidence by determining the
diameter/hymenal opening in rape cases was a common practice in the past. With the passage of
R.A. 7610, this Court has nonetheless allowed the utilization of the same kind of evidence in the
prosecution of Child Abuse cases. In light however of radical medical developments and findings,
specifically as to the determination of the existence of child sexual abuse, this Court deems it
necessary to firmly adopt a more "child sensitive" approach in dealing with this specie or genre of
In the international scientific community, recent medical studies have shown that measurement of
hymenal opening is unreliable in determining and/or proving child sexual abuse

"The diameter of the hymenal opening previously has been used as a diagnostic criterion for
abuse. More recent studies have shown this to be undependable (Paradise, 1989).Factors
affecting hymenal and anal diameter include the examination position (McCann, Voris,
Simon, & Wells, 1990) and the degree of relaxation of the child. The anal diameter is also
affected by the presence of stool in the ampulla. Hymenal diameter may increase with age
and with the onset of pubertal development."40

In fact, there is no evidence, nor published research studies which show that enlarged hymenal
opening diameter is any more common in abused than in non-abused children."41 Thus -

"In the latest revision of the classification system, enlarged hymenal opening is also
removed as a criterion that should be considered suspicious for abuse. With labial traction,
the hymenal opening may appear quite large, especially to the less experienced clinician,
and internal structures such as vaginal ridges, rugae, and vaginal columns may be
visualized. This is purely a matter of how much traction is applied, and the degree of patient
relaxation, and has no proven correlation with past sexual abuse. Likewise, it is not possible
to obtain accurate measurements of the dilated hymenal opening, unless photographs are
taken at the point of maximal dilation and measurements are taken from the photographs
using a calibrated measuring device. Rings of different sizes that are etched into eyepieces
of certain types of colposcopes can be used to estimate diameter size but not to obtain exact

Hence, insertion of a finger or any foreign matter inside the hymenal opening under the pretext of
determining abuse is unnecessary and inappropriate. The Philippine Judicial Academy [PHILJA]
training program for family court judges,43 through the auspices of the U.P.-P.G.H. Child Protection
Unit, sanctioned that in prepubertal girls44 without active bleeding, all that is needed is an external
examination with a good light source and magnification. Be that as it may, the physical findings
alone will not be conclusive of child sexual abuse, for a child who gives a clear, consistent, detailed,
spontaneous description of being sexually molested may still have normal genital examination.
Despite the physical or laboratory findings, however, a childs clear and convincing description of the
abuse has a high rate of probability.

We are not at all uninformed in this regard for we, in a plethora of cases, have consistently upheld
the full weight of a young victims unwavering testimony.45 Also, there is Section 22 of the Rule on
Examination of a Child Witness, which categorically states:

Section 22. Corroboration.- Corroboration shall not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or
judgment subject to the standard proof required in criminal and non-criminal cases.

What is important at this point, and we do not hesitate to reiterate, is that forensic examination
inclusive of physical examination and forensic interview of sexually assaulted children [adolescents
included] must be conducted with maximum sensitivity to the young victims feelings of vulnerability
and embarrassment. Great care must be observed in order to make the examination less stressful
lest they be more traumatic to the victim than the very assault itself. The value of collecting evidence
should always be weighed against the emotional cost of the procedure and examination of the child.

We now come to the matter of the death penalty imposed by the trial court. The single information
filed against accused-appellant, docketed as Criminal Case No. 6334-98, charged him with the crime
of "Multiple Statutory Rape."46 Even then, accused-appellant cannot be held answerable for the other
incidents of rape committed. Each and every charge of rape is a separate and distinct crime so that
each of the other rapes charged should be proven beyond reasonable doubt.47

Article 266-B, paragraph No.5 of the Revised Penal Code, imposes death penalty when the victim is
a child below seven (7) years old. The allegation in the information specifically stated that "xxx the
victim xxx is only seven years old" which clearly rules out the application of this specific provision
that can justify the imposition of the capital punishment. Paragraph No. 1 of the same article which
warrants the imposition of the death penalty if the crime of rape is committed where the victim is
under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil degree, or the commonlaw spouse of the
parent of the victim,48 will not apply for while the victim is under eighteen (18) years old, the accused-
appellant is not the common-law husband of the victims mother. The trial court therefore erred in
meting out the death penalty upon accused-appellant for qualified rape. Thus, accused-appellant
may only be sentenced to suffer the penalty of reclusion perpetua.

In line with our prevailing jurisprudence,49 we sustain the trial courts award of 50,000.00 civil
indemnity and 50,000.00 moral damages.

WHEREFORE, the decision of the Regional Trial Court, Branch 21, Imus, Cavite, in Criminal Case
No. 6334-98, finding accused-appellant Valentin Baring, Jr., guilty beyond reasonable doubt of rape
is hereby AFFIRMED with the MODIFICATION that the sentence is reduced to reclusion perpetua.

G. R. No. 136773 June 25, 2003

MILAGROS MANONGSONG, joined by her husband, CARLITO MANONGSONG, Petitioners,

LOPEZ, Respondents.



The Case

Before this Court is a petition for review1 assailing the Decision2 of 26 June 1998 and the Resolution
of 21 December 1998 of the Court of Appeals in CA-G.R. CV No. 51643. The Court of Appeals
reversed the Decision dated 10 April 1995 of the Regional Trial Court of Makati City, Branch 135, in
Civil Case No. 92-1685, partitioning the property in controversy and awarding to petitioners a portion
of the property.

Antecedent Facts

Spouses Agatona Guevarra ("Guevarra") and Ciriaco Lopez had six (6) children, namely: (1)
Dominador Lopez; (2) Enriqueta Lopez-Jumaquio, the mother of respondents Emiliana Jumaquio
Rodriguez and Felomena Jumaquio Estimo ("Jumaquio sisters"); (3) Victor Lopez, married to
respondent Leoncia Lopez; (4) Benigna Lopez-Ortiz, the mother of respondents Narciso, Celestino,
Rodolfo, Pastor Jr. and Romeo Ortiz, and Erlinda Ortiz Ocampo; (5) Rosario Lopez-dela Cruz,
married to respondent Benjamin dela Cruz, Sr. and the mother of respondents Benjamin Jr.,
Roberto, and Joselito, all surnamed dela Cruz, and of Gloria dela Cruz Racadio and Aurora dela
Cruz Nicolas; and (6) Vicente Lopez, the father of petitioner Milagros Lopez Manongsong

The contested property is a parcel of land on San Jose Street, Manuyo Uno, Las Pias, Metro
Manila with an area of approximately 152 square meters ("Property"). The records do not show that
the Property is registered under the Torrens system. The Property is particularly described in Tax
Declaration No. B-001-003903 as bounded in the north by Juan Gallardo, south by Calle Velay, east
by Domingo Lavana and west by San Jose Street. Tax Declaration No. B-001-00390 was registered
with the Office of the Municipal Assessor of Las Pias on 30 September 1984 in the name of
"Benigna Lopez, et al".4 However, the improvements on the portion of the Property denominated as
No. 831 San Jose St., Manuyo Uno, Las Pias were separately declared in the name of "Filomena J.
Estimo" under Tax Declaration No. 90-001-02145 dated 14 October 1991.5

Milagros and Carlito Manongsong ("petitioners") filed a Complaint6 on 19 June 1992, alleging that
Manongsong and respondents are the owners pro indiviso of the Property. Invoking Article 494 of
the Civil Code,7 petitioners prayed for the partition and award to them of an area equivalent to one-
fifth (1/5) of the Property or its prevailing market value, and for damages.

Petitioners alleged that Guevarra was the original owner of the Property. Upon Guevarras death,
her children inherited the Property. Since Dominador Lopez died without offspring, there were only
five children left as heirs of Guevarra. Each of the five children, including Vicente Lopez, the father of
Manongsong, was entitled to a fifth of the Property. As Vicente Lopez sole surviving heir,
Manongsong claims her fathers 1/5 share in the Property by right of representation.

There is no dispute that respondents, who are the surviving spouses of Guevarras children and their
offspring, have been in possession of the Property for as long as they can remember. The area
actually occupied by each respondent family differs, ranging in size from approximately 25 to 50
square meters. Petitioners are the only descendants not occupying any portion of the Property.

Most respondents, specifically Narciso, Rodolfo, Pastor Jr., and Celestino Ortiz, and Erlinda Ortiz
Ocampo ("Ortiz family"), as well as Benjamin Sr., Benjamin Jr., and Roberto dela Cruz, Aurora dela
Cruz Nicolas and Gloria Dela Cruz Racadio ("Dela Cruz family"), entered into a compromise
agreement with petitioners. Under the Stipulation of Facts and Compromise Agreement8 dated 12
September 1992 ("Agreement"), petitioners and the Ortiz and Dela Cruz families agreed that each
group of heirs would receive an equal share in the Property. The signatories to the Agreement asked
the trial court to issue an order of partition to this effect and prayed further that "those who have
exceeded said one-fifth (1/5) must be reduced so that those who have less and those who have
none shall get the correct and proper portion."9

Among the respondents, the Jumaquio sisters and Leoncia Lopez who each occupy 50 square
meter portions of the Property and Joselito dela Cruz, did not sign the Agreement.10 However, only
the Jumaquio sisters actively opposed petitioners claim. The Jumaquio sisters contended that
Justina Navarro ("Navarro"), supposedly the mother of Guevarra, sold the Property to Guevarras
daughter Enriqueta Lopez Jumaquio.

The Jumaquio sisters presented provincial Tax Declaration No. 91111 for the year 1949 in the sole
name of Navarro. Tax Declaration No. 911 described a residential parcel of land with an area of
172.51 square meters, located on San Jose St., Manuyo, Las Pias, Rizal with the following
boundaries: Juan Gallardo to the north, I. Guevarra Street to the south, Rizal Street to the east and
San Jose Street to the west. In addition, Tax Declaration No. 911 stated that the houses of "Agatona
Lopez" and "Enriquita Lopez" stood on the Property as improvements.

The Jumaquio sisters also presented a notarized KASULATAN SA BILIHAN NG

LUPA12 ("Kasulatan") dated 11 October 1957, the relevant portion of which states:

AKO SI JUSTINA NAVARRO, sapat ang gulang, may asawa, Pilipino at naninirahan sa LAS PIAS,
ay siyang nagma-may-ari at nagtatangkilik ng isang lagay na lupa na matatagpuan sa Manuyo, Las
Pias, Rizal, lihis sa anomang pagkakautang lalong napagkikilala sa pamamagitan ng mga
sumusunod na palatandaan:



na may sukat na 172.51 metros cuadrados na may TAX DECLARATION BILANG 911.


SALAPING PILIPINO, na sa akin ay kaliwang iniabot at ibinayad ni ENRIQUETA LOPEZ, may sapat
na gulang, Pilipino, may asawa at naninirahan sa Las Pias, Rizal, at sa karapatang ito ay aking
pinatutunayan ng pagkakatanggap ng nasabing halaga na buong kasiyahan ng aking kalooban ay
tagapagmana at kahalili, ang kabuuang sukat ng lupang nabanggit sa itaas nito sa pamamagitan ng
bilihang walang anomang pasubali. Ang lupang ito ay walang kasama at hindi taniman ng palay o

Simula sa araw na ito ay aking ililipat ang pagmamay-ari at pagtatangkilik ng nasabing lupa kay
ENRIQUETA LOPEZ sa kanilang/kanyang tagapagmana at kahalili x x x.

The Clerk of Court of the Regional Trial Court of Manila certified on 1 June 1994 that the
"KASULATAN SA BILIHAN NG LUPA, between Justina Navarro (Nagbili) and Enriqueta Lopez
(Bumili), was notarized by Atty. Ruperto Q. Andrada on 11 October 1957 and entered in his Notarial
Register xxx."13 The certification further stated that Atty. Andrada was a duly appointed notary public
for the City of Manila in 1957.

Because the Jumaquio sisters were in peaceful possession of their portion of the Property for more
than thirty years, they also invoked the defense of acquisitive prescription against petitioners, and
charged that petitioners were guilty of laches. The Jumaquio sisters argued that the present action
should have been filed years earlier, either by Vicente Lopez when he was alive or by Manongsong
when the latter reached legal age. Instead, petitioners filed this action for partition only in 1992 when
Manongsong was already 33 years old.

The Ruling of the Trial Court

After trial on the merits, the trial court in its Decision14 of 10 April 1995 ruled in favor of petitioners.
The trial court held that the Kasulatan was void, even absent evidence attacking its validity. The trial
court declared:

It appears that the ownership of the estate in question is controverted. According to defendants
Jumaquios, it pertains to them through conveyance by means of a Deed of Sale executed by their
common ancestor Justina Navarro to their mother Enriqueta, which deed was presented in evidence
as Exhs. "4" to "4-A". Plaintiff Milagros Manongsong debunks the evidence as fake. The document of
sale, in the observance of the Court, is however duly authenticated by means of a certificate issued
by the RTC of the Manila Clerk of Court as duly notarized public document (Exh. "5"). No
countervailing proof was adduced by plaintiffs to overcome or impugn the documents legality or its

xxx The conveyance made by Justina Navarro is subject to nullity because the property conveyed
had a conjugal character. No positive evidence had been introduced that it was solely a paraphernal
property. The name of Justina Navarros spouse/husband was not mentioned and/or whether the
husband was still alive at the time the conveyance was made to Justina Navarro. Agatona Guevarra
as her compulsory heir should have the legal right to participate with the distribution of the estate
under question to the exclusion of others. She is entitled to her legitime. The Deed of Sale [Exhs "4"
& "4-1"(sic)] did not at all provide for the reserved legitime or the heirs, and, therefore it has no force
and effect against Agatona Guevarra and her six (6) legitimate children including the grandchildren,
by right of representation, as described in the order of intestate succession. The same Deed of Sale
should be declared a nullity ab initio. The law on the matter is clear. The compulsory heirs cannot be
deprived of their legitime, except on (sic) cases expressly specified by law like for instance
disinheritance for cause. xxx (Emphasis supplied)

Since the other respondents had entered into a compromise agreement with petitioners, the
dispositive portion of the trial courts decision was directed against the Jumaquio sisters only, as
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiffs and against
the remaining active defendants, Emiliana Jumaquio and Felomena J. Estimo, jointly and severally,

1. That the property consisting of 152 square meters referred to above be immediately
partitioned giving plaintiff Milagros Lopez-Manongsong her lawful share of 1/5 of the area in
square meters, or the prevailing market value on the date of the decision;

2. Defendants to pay plaintiffs the sum of 10,000.00 as compensatory damages for having
deprived the latter the use and enjoyment of the fruits of her 1/5 share;

3. Defendants to pay plaintiffs litigation expenses and attorneys fee in the sum of
10,000.00; and

4. Defendants to pay the costs of suit.

SO ORDERED.15 (Emphasis supplied)

When the trial court denied their motion for reconsideration, the Jumaquio sisters appealed to the
Court of Appeals.

The Ruling of the Court of Appeals

Petitioners, in their appellees brief before the Court of Appeals, presented for the first time a
supposed photocopy of the death certificate16 of Guevarra, which stated that Guevarras mother was
a certain Juliana Gallardo. Petitioner also attached an affidavit17 from Benjamin dela Cruz, Sr.
attesting that he knew Justina Navarro only by name and had never met her personally, although he
had lived for some years with Agatona Guevarra after his marriage with Rosario Lopez. On the basis
of these documents, petitioners assailed the genuineness and authenticity of the Kasulatan.

The Court of Appeals refused to take cognizance of the death certificate and affidavit presented by
petitioners on the ground that petitioners never formally offered these documents in evidence.

The appellate court further held that the petitioners were bound by their admission that Navarro was
the original owner of the Property, as follows:

Moreover, plaintiffs-appellees themselves admitted before the trial court that Justina Navarro and not
Juliana Gallardo was the original owner of the subject property and was the mother of Agatona
Navarro (sic). Plaintiffs-appellees in their Reply-Memorandum averred:

"As regards the existence of common ownership, the defendants clearly admit as follows:

xxx xxx xxx

History of this case tells us that originally the property was owned by JUSTINA NAVARRO who has
a daughter by the name of AGATONA GUEVARRA who on the other hand has six children namely:
xxx xxx xxx.

which point-out that co-ownership exists on the property between the parties. Since this is the
admitted history, facts of the case, it follows that there should have been proper document to
extinguish this status of co-ownership between the common owners either by (1) Court action or
proper deed of tradition, xxx xxx xxx."

The trial court confirms these admissions of plaintiffs-appellees. The trial court held:

"x x x xxx xxx

With the parties admissions and their conformity to a factual common line of relationship of the heirs
with one another, it has been elicited ascendant Justina Navarro is the common ancestor of the heirs
herein mentioned, however, it must be noted that the parties failed to amplify who was the husband
and the number of compulsory heirs of Justina Navarro. xxx xxx xxx"

Therefore, plaintiffs-appellees cannot now be heard contesting the fact that Justina Navarro was
their common ancestor and was the original owner of the subject property.

The Court of Appeals further held that the trial court erred in assuming that the Property was
conjugal in nature when Navarro sold it. The appellate court reasoned as follows:

However, it is a settled rule that the party who invokes the presumption that all property of marriage
belongs to the conjugal partnership, must first prove that the property was acquired during the
marriage. Proof of acquisition during the coveture is a condition sine qua non for the operation of the
presumption in favor of conjugal ownership.

In this case, not a single iota of evidence was submitted to prove that the subject property was
acquired by Justina Navarro during her marriage. xxx

The findings of the trial court that the subject property is conjugal in nature is not supported by any

To the contrary, records show that in 1949 the subject property was declared, for taxation purposes
under the name of Justina Navarro alone. This indicates that the land is the paraphernal property of
Justina Navarro.

For these reasons, the Court of Appeals reversed the decision of the trial court, thus:

WHEREFORE, foregoing considered, the appealed decision is hereby REVERSED and SET ASIDE.
A new one is hereby rendered DISMISSING plaintiffs-appellees complaint in so far as defendants-
appellants are concerned.

Costs against plaintiffs-appellees.


Petitioners filed a motion for reconsideration, but the Court of Appeals denied the same in its
Resolution of 21 December 1998.19

On 28 January 1999, petitioners appealed the appellate courts decision and resolution to this Court.
The Court initially denied the petition for review due to certain procedural defects. The Court,
however, gave due course to the petition in its Resolution of 31 January 2000.20

The Issues
Petitioners raise the following issues before this Court:









The fundamental question for resolution is whether petitioners were able to prove, by the requisite
quantum of evidence, that Manongsong is a co-owner of the Property and therefore entitled to
demand for its partition.

The Ruling of the Court

The petition lacks merit.

The issues raised by petitioners are mainly factual in nature. In general, only questions of law are
appealable to this Court under Rule 45. However, where the factual findings of the trial court and
Court of Appeals conflict, this Court has the authority to review and, if necessary, reverse the
findings of fact of the lower courts.22 This is precisely the situation in this case.

We review the factual and legal issues of this case in light of the general rules of evidence and the
burden of proof in civil cases, as explained by this Court in Jison v. Court of Appeals :23

xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the
plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case,
once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of
plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence
and not upon the weakness of the defendants. The concept of "preponderance of evidence" refers
to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at
bottom, it means probability of truth.

Whether the Court of Appeals erred in affirming the validity of the Kasulatan sa Bilihan ng Lupa

Petitioners anchor their action for partition on the claim that Manongsong is a co-owner or co-heir of
the Property by inheritance, more specifically, as the heir of her father, Vicente Lopez. Petitioners
likewise allege that the Property originally belonged to Guevarra, and that Vicente Lopez inherited
from Guevarra a 1/5 interest in the Property. As the parties claiming the affirmative of these issues,
petitioners had the burden of proof to establish their case by preponderance of evidence.
To trace the ownership of the Property, both contending parties presented tax declarations and the
testimonies of witnesses. However, the Jumaquio sisters also presented a notarized KASULATAN
SA BILIHAN NG LUPA which controverted petitioners claim of co-ownership.

The Kasulatan, being a document acknowledged before a notary public, is a public document and
prima facie evidence of its authenticity and due execution. To assail the authenticity and due
execution of a notarized document, the evidence must be clear, convincing and more than merely
preponderant.24 Otherwise the authenticity and due execution of the document should be
upheld.25 The trial court itself held that "(n)o countervailing proof was adduced by plaintiffs to
overcome or impugn the documents legality or its validity."26

Even if the Kasulatan was not notarized, it would be deemed an ancient document and thus still
presumed to be authentic. The Kasulatan is: (1) more than 30 years old, (2) found in the proper
custody, and (3) unblemished by any alteration or by any circumstance of suspicion. It appears, on
its face, to be genuine.27

Nevertheless, the trial court held that the Kasulatan was void because the Property was conjugal at
the time Navarro sold it to Enriqueta Lopez Jumaquio. We do not agree. The trial courts conclusion
that the Property was conjugal was not based on evidence, but rather on a misapprehension of
Article 160 of the Civil Code, which provides:

All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved
that it pertains exclusively to the husband or to the wife.

As the Court of Appeals correctly pointed out, the presumption under Article 160 of the Civil Code
applies only when there is proof that the property was acquired during the marriage. Proof of
acquisition during the marriage is an essential condition for the operation of the presumption in favor
of the conjugal partnership.28

There was no evidence presented to establish that Navarro acquired the Property during her
marriage. There is no basis for applying the presumption under Article 160 of the Civil Code to the
present case. On the contrary, Tax Declaration No. 911 showed that, as far back as in 1949, the
Property was declared solely in Navarros name.29 This tends to support the argument that the
Property was not conjugal.

We likewise find no basis for the trial courts declaration that the sale embodied in the Kasulatan
deprived the compulsory heirs of Guevarra of their legitimes. As opposed to a disposition inter vivos
by lucrative or gratuitous title, a valid sale for valuable consideration does not diminish the estate of
the seller. When the disposition is for valuable consideration, there is no diminution of the estate but
merely a substitution of values,30 that is, the property sold is replaced by the equivalent monetary
consideration.1wphi 1

Under Article 1458 of the Civil Code, the elements of a valid contract of sale are: (1) consent or
meeting of the minds; (2) determinate subject matter and (3) price certain in money or its
equivalent.31 The presence of these elements is apparent on the face of the Kasulatan itself. The
Property was sold in 1957 for 250.00.32

Whether the Court of Appeals erred in not admitting the documents presented by petitioners for the
first time on appeal

We find no error in the Court of Appeals refusal to give any probative value to the alleged birth
certificate of Guevarra and the affidavit of Benjamin dela Cruz, Sr. Petitioners belatedly attached
these documents to their appellees brief. Petitioners could easily have offered these documents
during the proceedings before the trial court. Instead, petitioners presented these documents for the
first time on appeal without any explanation. For reasons of their own, petitioners did not formally
offer in evidence these documents before the trial court as required by Section 34, Rule 132 of the
Rules of Court.33 To admit these documents now is contrary to due process, as it deprives
respondents of the opportunity to examine and controvert them.

Moreover, even if these documents were admitted, they would not controvert Navarros ownership of
the Property. Benjamin dela Cruz, Sr.s affidavit stated merely that, although he knew Navarro by
name, he was not personally acquainted with her.34 Guevarras alleged birth certificate casts doubt
only as to whether Navarro was indeed the mother of Guevarra. These documents do not prove that
Guevarra owned the Property or that Navarro did not own the Property.

Petitioners admitted before the trial court that Navarro was the mother of Guevarra. However,
petitioners denied before the Court of Appeals that Navarro was the mother of Guevarra. We agree
with the appellate court that this constitutes an impermissible change of theory. When a party adopts
a certain theory in the court below, he cannot change his theory on appeal. To allow him to do so is
not only unfair to the other party, it is also offensive to the basic rules of fair play, justice and due

If Navarro were not the mother of Guevarra, it would only further undermine petitioners case. Absent
any hereditary relationship between Guevarra and Navarro, the Property would not have passed
from Navarro to Guevarra, and then to the latters children, including petitioners, by succession.
There would then be no basis for petitioners claim of co-ownership by virtue of inheritance from
Guevarra. On the other hand, this would not undermine respondents position since they anchor their
claim on the sale under the Kasulatan and not on inheritance from Guevarra.

Since the notarized Kasulatan is evidence of greater weight which petitioners failed to refute by clear
and convincing evidence, this Court holds that petitioners were not able to prove by preponderance
of evidence that the Property belonged to Guevarras estate. There is therefore no legal basis for
petitioners complaint for partition of the Property.

WHEREFORE, the Decision of 26 June 1998 of the Court of Appeals in CA-G.R. CV No. 51643,
dismissing the complaint of petitioners against Felomena Jumaquio Estimo and Emiliana Jumaquio,

G.R. No. 144268 August 30, 2006


INC. Respondents.



In an action for ejectment filed by Sampaguita Brokerage, Inc. and its sister company, Belgravia
Realty & Development Corporation, against the herein petitioners Datalift Movers, Inc. and/or Jaime
B. Aquino, the Metropolitan Trial Court (MeTC), of Manila, Branch 3, later the Regional Trial Court
(RTC) of Manila, Branch 36, and eventually the Court of Appeals (CA) in CA-G.R. SP No. 52189 are
one in ordering the petitioners ejectment from the premises involved in the suit and their payment of
unpaid rentals, attorneys fees and costs. Undaunted, the petitioners have come to this Court via this
petition for review with application for a temporary restraining order and/or preliminary injunction to
seek the reversal of the affirmatory decision of the CA, including those of the courts below it.

We likewise AFFIRM, but first the facts:

The premises involved in this case is a warehouse (bodega) used by petitioner Datalift Movers, Inc.
(Datalift for short) for its cargoes in connection with its brokerage business. The warehouse stands
on a 3,967.70 squaremeter lot owned by the Philippine National Railways (PNR) and located at No.
883 Santibaez Street corner Cristobal Street, Pandacan, Manila.

Sometime in 1987, PNR leased out the lot to Sampaguita Brokerage, Inc. (Sampaguita, hereafter),
pursuant to a written contract commencing on July 1, 1987 and terminating on June 30, 1990 for a
monthly rental of P6,282.49, subject to a ten (10%) percent increase every year.

Sampaguita thereafter entered into a special arrangement with its sister company, Belgravia Realty
& Development Corporation (Belgravia for short) whereby the latter would put up on the lot a
warehouse for its own use. True enough, Belgravia did put up a warehouse occupying an area of
about 3,000 squaremeters of the lot. However, instead of using the said warehouse for itself,
Belgravia sublet it to petitioner Datalift, represented by its president Jaime B. Aquino, pursuant to a
1-year written contract of lease 1 dated October 2, 1990, commencing on October 5, 1990 and
ending on October 5, 1991, subject to extension upon mutual agreement by the parties. By the terms
of lease, Datalift shall pay Belgravia a monthly rental of P40,000.00 payable on or before the 15th
day of each month, provided an advance rental for two (2) months is paid upon execution of the

After the one year contract period expired, lessee Datalift continued in possession and enjoyment of
the leased warehouse, evidently by acquiesance of lessor Belgravia or by verbal understanding of
the parties. Subsequently, Belgravia unilaterally increased the monthly rental to P60,000.00 starting
June 1994 to October 1994. Monthly rental was again increased from P60,000.00 to P130,000.00
beginning November 1994 onwards, allegedly in view of the increased rental demanded by PNR on
Sampaguita for the latters lease of the formers lot whereon the warehouse in question stands.
Because of the rental increase made by Belgravia, Datalift stopped paying its monthly rental for the
warehouse. Thereafter, Sampaguita addressed demand letters to Datalift asking the latter to pay its
rental in arrears in the amount of P4,120,000.00 and to vacate and surrender the warehouse in
dispute. The demands having proved futile, Belgravia and/or Sampaguita filed with the MeTC of
Manila their complaint 2 for ejectment against Datalift and/or its controlling stockholder, Jaime B.

In their Answer with Counterclaim, 3 the defendants interposed the following defenses:

1) Sampaguita has no cause of action against them, not being a party nor privy to the Datalift-
Belgravia contract of lease;

2) Under the PNR-Sampaguita contract of lease over the PNR lot, Sampaguita is prohibited from
subleasing the property;

3) The same PNR-Sampaguita contract had allegedly expired;

4) Lessor Belgravia likewise has no cause of action because it was neither the owner nor lessee of
the lot whereon the warehouse stands.

By way of counterclaim, defendants Datalift and Aquino prayed for the refund by Belgravia of the
rentals they paid during the entire period of their lease of the warehouse, plus exemplary damages
and litigation expenses.

In a decision 4 dated October 16, 1997, the MeTC of Manila, Branch 3, rendered judgment for
plaintiffs Sampaguita and Belgravia but reduced the amount of rental arrearages to a reasonable
level of P80,000,00 a month, saying:

Upon the other hand, this Court is not persuaded or inclined to favor the very substantial increase in
the amount demanded by Sampaguita and/or Belgravia upon Datalift, from P60,000.00
to P130,000.00 per month. Such increase is arbitrary, highly unconscionable and beyond the ambit
of equity and justice considering that the original agreed rental on the premises in 1990 was
only P45,000.00 per month, the latter increase to P60,000.00 per month. The unilateral increase
of P70,000.00 making the monthly rental P130,000.00 effective June, 1994, is, as earlier said,
beyond the conscience of man. Belgravia would be guilty likewise, of unjust enrichment.

The increase in rental for P60,000.00 per month to P80,000.00 per month, following the trend in the
amount of increase during the previous years would, to the mind of the Court be reasonable and
justified. Thus, the rental in arrears due and demandable upon defendants would be P20,000.00 per
month from June, 1994 to October, 1994, defendants having paid already P60,000.00 per month
during the five (5) months period, the P80,000.00 per month from November, 1994 to the present.

In the same decision, the MeTC rejected the defendants challenge against Belgravias title over the
PNR lot occupied by the subject warehouse.

More particularly, the MeTC decision dispositively reads:

WHEREFORE, premises considered, the Court finds and so hold that plaintiffs have proven their
case against defendants by preponderance of evidence sufficient to grant what is prayed for in their
Complaint with certain modification and hereby renders judgment:

1) Ordering defendants and all persons, natural or juridical, claiming rights, interest or title under
them, to vacate and surrender peacefully to plaintiffs that warehouse and the area/premises
occupied by them located at No. 883 Santibaez Street corner Cristobal Street, Pandacan, City of
2) Ordering defendants to pay plaintiff Belgravia the difference of P20,000.00 from what had been
already paid of P60,000.00 per month for the months of June, 1994 to October, 1994 or a total
of P100,000.00; and the unpaid rentals at P80,000.00 per month from November, 1994 to the
present and until defendants vacate and surrender the warehouse and premises subject of this

3) Ordering defendants to pay plaintiff P30,000.00 for and as attorneys fees and expenses of
litigation, and

4) To pay the cost of suit.


Obviously dissatisfied, both parties appealed to the RTC whereat the appeal was raffled to Branch
36 thereof. In their appeal, Datalift and its co-defendant Jaime B. Aquino questioned the MeTCs
finding that there was an implied new lease between PNR and Sampaquita on the lot on which the
warehouse in question stands, and accordingly fault the same court for ordering them to vacate the
same warehouse and to pay rentals as well as attorneys fees and litigation expenses.

For their part, Sampaguita and Belgravia assailed the MeTC decision for not ordering Datalift and
Aquino to pay the increase rental of P130,000.00 a month beginning June 1994, and for not ruling
that both defendants are jointly and subsidiary liable for the amounts awarded to them.

In a decision 5 dated March 11, 1999, the RTC, reechoing the MeTCs ruling on the authority of
Sampaguita and Belgravia to institute the complaint for ejectment as well as the same courts finding
as to the reasonable amount of rental in arrears due Belgravia, affirmed in toto the assailed MeTC
decision, thus:

In the light of the foregoing, the assailed decision of MeTC of Manila, Branch 3 is affirmed in toto.


This time, only Datalift and its co-petitioner Jaime B. Aquino elevated the case to the CA in CA-G.R.
SP No. 52189.

Again, in a decision 6 dated August 4, 2000, the CA dismissed the petitioners recourse thereto and
affirmed with slight modification the challenged affirmatory decision of the RTC, to wit:

WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court, Branch 36,
Manila, dated March 11, 1999, affirming in toto the decision of the Metropolitan Trial Court, Branch
3, is hereby AFFIRMED, except that the award of P30,000.00 as attorneys fees is DELETED.


Still unable to accept the adverse decisions of the three (3) courts below, the petitioners are now
with this Court via this petition for review on their submission that the CA erred:


The petition lacks merit.

Petitioners first fault the CA for affirming the RTC and the MeTC which ruled that the subject
warehouse and the land and area which it occupies rightfully belong to respondent Belgravia, not
Datalift, for an implied new lease was created between PNR, the acknowledged owner of the lot, and
Sampaguita, Belgravia's sister company, which, by virtue of a special arrangement, Sampaguita
allowed Belgravia to construct a warehouse on the leased lot and sub-leased the same to Datalift.

At first glance, the petitioners' argument may appear to have some merit, but it is still insufficient to
warrant a reversal of the CA decision.

Relative to the first argument, the CA decision pertinently reads:

There is no definite showing that the lease contract between PNR and Sampaguita Brokerage, Inc.
had been effectively terminated. As held by the court a quo: "(B)y PNR not taking a positive action to
eject Sampaguita from the leased premises up to the present, again, there is a tacit renewal of the
lease contract between PNR and Sampaguita.(Emphasis in the original.)

The Rules of Court already sufficiently shields respondent Belgravia, as lessor, from being
questioned by the petitioners as lessees, regarding its title or better right of possession as lessor
because having admitted the existence of a lessor-lessee relationship, the petitioners are barred
from assailing Belgravia's title of better right of possession as their lessor.

Section 2, Rule 131, of the Rules of Court provides:

SEC. 2. Conclusive presumptions. -- The following are instances of conclusive presumptions:

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

(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. (Underscoring ours.)

Conclusive presumptions have been defined as "inferences which the law makes so peremptory that
it will not allow them to be overturned by any contrary proof however strong." 7 As long as the lessor-
lessee relationship between the petitioners and Belgravia exists as in this case, the former, as
lessees, cannot by any proof, however strong, overturn the conclusive presumption that Belgravia
has valid title to or better right of possession to the subject leased premises than they have.

It was superfluous on the part of the MeTC to rule on the source or validity of Belgravia's title or right
of possession over the leased premises as against the petitioners as lessees in this case. If at all,
Belgravia's title or right of possession should only be taken cognizance of in a proper case between
PNR and Belgravia, but not in the present case. Any ruling which the court may render on this issue
will, at the very least, be an obiter dictum, if not outrightly ultra vires.

The apparent error made by the MeTC will, however, not affect the result of the judgment rendered
in this case. In fact, the application of the rule on conclusive presumption under the afore-quoted
Section 2, Rule 131 strengthens the position of the MeTC that the petitioners may be validly ordered
to vacate the leased premises for nonpayment of rentals. Likewise, the logical consequence of the
operation of this conclusive presumption against the petitioners is that they will never have the
personality to question whether an implied new lease was created between PNR and the
respondents, because so long as there is no showing that the lessor-lessee relationship has
terminated, the lessors title or better right of possession as against the lessee will eternally be a
non-issue in any proceeding before any court.

Additionally, as correctly pointed out by the CA, being non-privies to the contract of lease between
PNR and respondent Sampaguita, the petitioners have no personality to raise any factual or legal
issue relating thereto.

Despite non-merit of petitioners' arguments, and notwithstanding the petitioners' failure to assail the
accuracy of the dates when the increase of rental from P60,000.00 to P130,000.00 was effected, in
the interest of justice, the Court shall correct this plain error, and adjust the rental due in accordance
with the facts as borne by the evidence on record. The Court readily noticed that the MeTC decision
erroneously reckoned the effective date of the increased rental of P130,000.00 from June 1994
instead of the correct date of November 1994, which shall cause an overpayment of P100,000.00 by
the petitioners. It is clear from the records that the rental due and demandable, and which the
petitioners already paid to respondent Belgravia from June 1994 to October 1994 was
only P60,000.00. It was only when Belgravia drastically increased the monthly rental
from P60,000.00 to P130,000.00, effective November 1994, that the petitioners altogether stopped
paying rentals. Thus, the order to pay unpaid rentals in the adjusted amount of P80,000.00 should
be reckoned only from November 1994 until the time that the petitioners finally vacate the premises.
There are no unpaid differentials of P20,000.00/month due from June 1994 to October 1994.

WHEREFORE, the assailed Decision of the CA is hereby AFFIRMED with the MODIFICATION that
the petitioners are ordered to pay only the unpaid rentals from November 1994 in the amount
of P80,000.00 until they vacate the leased premises.

No pronouncement as to costs.

G.R. No. 129807 December 9, 2005

DAVAO LIGHT & POWER CO., INC., Petitioner,




This is a petition for review on certiorari of the decision1 of the Court of Appeals in CA-G.R. CV No.
35114 dated 29 May 1997 affirming, with modification, the decision2 of the Regional Trial Court
(RTC), Branch 17, Davao City, in Civil Case No. 19,648-89 declaring as null and void the documents
presented by petitioner with regard to respondents unbilled consumption.

The records establish the following facts:

In their complaint filed on 19 July 1989 before the RTC of Davao City, respondents, as plaintiffs
below, alleged that petitioner Davao Light and Power Co., Inc. (DLPC), defendant below, is a
franchise holder authorized to operate an electric and power plant in Davao City. Respondents, on
the other hand, are petitioners customers as electric meter nos. 47019 and 1587 were attached to
respondent Teofilo Ramos, Jr.s (respondent Ramos, Jr.) office and residence, respectively. Under
the agreement between respondents, respondent Ramos, Jr. was supposed to pay the electric bills
to petitioner although both electric meters were under the account name of his mother-in-law,
respondent Cristina Opea (respondent Opea).

Sometime in 1988, petitioner, through its fieldmen or inspection team, examined the electric meter in
respondent Ramos, Jr.s office allegedly in response to a report of an alleged "broken Davao Light
seal." As a consequence of said inspection, both electric meters were removed and eventually
replaced. Respondents purportedly observed that their electric consumption a few months after the
installation of the replacement meters were relatively similar with their usage as recorded by the
previous electric meters. Thus, they were taken aback when petitioner charged them the amount of
7,894.99 for one billing month. After they complained about this excessive amount, petitioner
made an adjustment and subsequently reduced said electric bill to 5,625.55 which respondents
paid under protest.

On 17 May 1989, petitioner wrote respondent Opea charging her 84,398.76 for the alleged
unbilled electric consumption of respondent Ramos, Jr.s office from September 1983 to September
1988.3 The amount was allegedly arrived at based on the highest recorded consumption from 1983 to

On 17 June 1989, petitioner sent another letter4 to respondent Opea reiterating its demand for the
payment of the unbilled electric consumption. This time, the letter contained a threat that
respondents failure to settle their obligation within ten days would compel petitioner to take the
necessary legal action before the proper court and would result in the immediate disconnection of
the electric supply to respondents.

On 23 June 1989, petitioner again wrote respondent Opea demanding the amount of 49,512.63
allegedly representing the amount of unbilled electric consumption of respondent Ramos, Jr.s
residence.5 As was stated in the 17 May 1989 letter, petitioner claimed that this amount was
computed based on the highest recorded consumption from 1983 to 1988.
Respondents asserted in their complaint that these demands by petitioner were without proper and
correct basis as they had paid all their electric bills for the period 1983 to 1988. They also stated that
the charges for unbilled electric consumption could have emanated from fraudulent manipulations
executed by petitioner itself.

Respondents, therefore, prayed for the following reliefs from the trial court:

a) Forthwith issue a temporary restraining order before notice and a writ of preliminary injunction,
directing the defendants or any person acting for and in its behalf to desist and refrain from doing
any act that would disconnect the electrical light connection at plaintiffs house and office, and also
desist in enforcing the so-called "Computations" referred to.

b) Order the defendants to adjust correctly or calibrate the electric meters by competent men or

c) To declare null and void the documents (Annexes "C" to "C-*" and "G" to "G-*") denoted as
"Computation of Tampered Meter".

d) Order the payment of moral and exemplary damages in the amounts of 200,000.00
and P 50,000.00 respectively.

e) Direct defendants to reimburse plaintiffs the amount of P 2,000.00 as initial expenses in the
preparation and filing of the complaint; and to further pay the amount of P 33,477.86 in concept of
attorneys fee.

f) To make the preliminary injunction final.

PLAINTIFFS further pray for such other relief that may be just and proper in the premises.6

Traversing the allegations of the complaint, petitioner declared in its answer7 that at the time of the
institution of this suit, petitioner continuously supplied electrical services to respondents pursuant to
the service contracts it entered into with respondent Opea. One of these service contracts was
dated 30 May 19778 under account number 510-4019 with meter number 47019. The other service
contract was dated 07 November 19509 under account number 510-4020 with meter number 1587.

On 16 September 1988, petitioners representatives, together with an energy regulation analyst of

the Energy Regulatory Board (ERB) and a photographer, went to respondents office building and
residential house to examine and test the electric meters installed thereat. The examination and
testing of electric meter number 47019 was allegedly witnessed by respondent Ramos, Jr.s
employee named Myrna Galagar (Galagar). In the case of electric meter number 1587, Joy Perucho
(Perucho),10 another employee of respondent Ramos, Jr., purportedly observed the procedure.

According to petitioner, the examination of electric meter number 47019 showed that petitioners
murray seal, otherwise known as the outer seal, was already broken while the government seal or
inner seal was deformed. In addition, the meter testing conducted by the ERB regulation analyst
Engr. Carlos V. Reyes (Engr. Reyes) revealed that electric meter number 47019 was not registering
any electric consumption at light load and, when it was tested at full load, the same only recorded a
27.57% consumption.

On the other hand, the examination of electric meter number 1587 indicated that its murray seal was
no longer attached thereto and had been substituted with an unauthorized lead seal and the
government seal which should be attached to said electric meter was already missing. The
inspection team also noticed that said electric meters second and third dials from the right were
misaligned. Just like electric meter number 47019, Engr. Reyes also subjected electric meter
number 1587 to a test which revealed that it was not registering any electric consumption at light
load and recorded only 33.53% of electricity utilized at full load.

As the two electric meters in question were already inaccurate, Engr. Reyes and petitioner decided
to remove them and had them individually wrapped, sealed, and brought to petitioners office for

Pursuant to the procedure adopted by petitioner in cases of meter tampering, respondents were
required to make a deposit for the repair and replacement of the two electric meters. The amount of
deposit required in this case was pegged at 4,000.00 for each account which was paid by
respondent Ramos, Jr. on 19 September 1988. With this payment, petitioner immediately installed
"good meters" at respondents residence and office.

Everything seemed back to normal following the replacement of the allegedly tampered electric
meters on 19 September 1988. Problem, however, arose anew when in January 1989, respondents
received from petitioner an electric bill charging them with the amount of 7,894.99 for account
number 510-4019 prompting respondents to file a complaint with petitioner. On verification, it was
discovered that electric meter number 7168 which replaced electric meter number 47019
erroneously recorded respondents electric consumption beginning November 1989. Accordingly,
respondents January electric bill was revised to only 5,625.55 and credit memorandum no. 38711
dated 07 February 198911 was issued in favor of respondents.

On or about 17 March 1989, petitioners customer relations department received a letter-complaint

from Konsumo Dabaw regarding respondents recomputed electric bill for account number 510-
4019. Petitioner thereafter conducted another verification of electric meter number 7168 and it was
then discovered that said meter was running backwards, and that no error was committed by
petitioner in respondents meter reading on 14 January 1989. Accordingly, petitioner sent a
letter12 to Konsumo Dabaw explaining this matter and on 30 March 1989, petitioner replaced electric
meter number 7168 with electric meter number 24305.

In the third week of June 1989, petitioner adjusted respondents December 1988 to May 1989
electric bills based on the latters monthly consumption as registered by electric meter number
24305 and taking into consideration credit memorandum no. 3887.

Petitioner likewise claimed in its answer that respondents unbilled consumption amounting to
84,398.76 relative to account number 510-401913 and 49,512.63 for account number 510-
402014 covered the period September 1983 to September 1988 and was based on the highest
registration of the electric meter for each account - 1,047 kilowatthours for account number 510-
401915 and 963 kilowatthours in the case of account number 510-4020.16 The amounts claimed as
unbilled consumption, however, merely represented petitioners initial bargaining position with
respondents in the hope that the latter would come clean and submit proof as to when they had the
electric meters tampered and made additions to their connected load.

Also, petitioner asserted in its answer that its letter dated 16 June 198917 giving respondents the
period of ten days within which to settle the matter with petitioner was designed to bring respondents
to the bargaining table for a fair and just settlement of petitioners claim and that the threatened
actions contained in said letter were never implemented by petitioner.
Furthermore, based on the summaries of respondents monthly electric consumption from
September 1983 to June 198918 it would appear that the tampering of electric meter number 47019
occurred between late December 1983 or early January 1984 when said meter registered only 302
kilowatthours a drastic drop in consumption considering its recording of 708 kilowatthours for the
previous billing period. As regards electric meter number 1587, its tampering allegedly occurred
sometime in late July or early August 1985 when this electric meter registered only 170 kilowatthours
which was way below its previous recording of 663 kilowatthours for the previous billing period.

In its answer, petitioner moreover presented another method of computing respondents unbilled
consumption which was arrived at using respondents daily average consumption registered by the
new electric meters and multiplying this by thirty days. Thus, for account number 510-4019,
petitioner charged respondents the amount of 65,918.13 as of September 1988 plus 2% monthly
surcharge from October 1988 to July 1989 totalling 8,636.12. In addition, this amount was
supposed to carry the 2% monthly surcharge until fully paid. With respect to account number 510-
4020, petitioner claimed the amount of 28,328.45 for the period August 1985 to September 1988,
plus 4,028.74 representing 2% monthly surcharge from October 1988 to July 1989. Similarly, this
amount would carry the 2% surcharge until fully settled by respondents.

Ultimately, petitioner prayed that judgment in its favor be given ordering respondents to jointly and
severally pay:

(1) The sum of 74,554.25 as unbilled consumption under Account No. 510-4019 inclusive of 2%
monthly surcharge up to July, 1989, plus 2% monthly surcharge thereon from August, 1989 until fully

(2) The sum of 32,357.19 as unbilled consumption under Account No. 510-4020 inclusive of 2%
monthly surcharge up to July, 1989, plus 2% monthly surcharge thereon from August, 1989 until fully

(3) The sum of 50,000.00 as damages for attorneys fee and expenses of litigation, plus an
additional 30,000.00 should there be an appeal or petition for certiorari.

(4) The sums of 20,000.00 and 10,000.00 as moral damages and exemplary damages.19

On 20 July 1989, Presiding Judge Renato A. Fuentes, considering the nature of the complaint and
the urgency of the provisional remedy prayed for, ordered petitioner from doing any act complained
of within twenty days from receipt of said order and scheduled the hearing for the issuance of the
writ of preliminary injunction on 01 August 1989.20

After the pre-trial, the continuous trial of the case proceeded in reverse order as agreed upon by the
parties in order for petitioner, as defendant below, to prove its allegation of meter tampering.

JOSE ROBERTO A. SARDINIA (Sardinia) testified that at the time material to this case, he was the
legal assistant in petitioners Legal Affairs and Public Relation Department. On 16 September 1988,
petitioners system department ordered the conduct of inspection and examination of alleged
tampered electric meters. Relative to said directive, two teams were formed, one of which was
headed by Sardinia himself. The other members of his team were an instrument technician from
petitioners laboratory department named Alfredo Lucero (Lucero); driver; lineman; photographer; a
representative of the city electrician office; and Engr. Reyes.

In the afternoon of said date, his team proceeded to the place where the electric meters in question
were installed. There, they were met by respondent Ramos, Jr.s employees Perucho and Galagar.
Perucho and Galagar informed Sardinia that it was their employer, respondent Ramos, Jr., who
actually paid the electric bills under the account name of respondent Opea. In addition, Perucho
and Galagar told the team that respondent Ramos, Jr., was in Manila during that time. Despite this
information, the inspection team proceeded with their planned examination of the two electric
meters. Engr. Reyes conducted the meter testing which was witnessed by Perucho and Galagar.
The photographer who accompanied the inspection team likewise took photos of the two electric
meters while these were being examined.21

As part of his duty as the team leader, Sardinia made written reports of the results of the meter
testing. According to Sardinia, the government seal (inner seal) of the electric meter bearing serial
number 47019 was deformed and its DLPC seal (outer seal) was broken.22 As for electric meter
number 1587, the inspection revealed that its government seal was missing while its DLPCs seal
was substituted with a deformed lead seal which was not the type used by petitioner.23

After the electric meters were tested by Engr. Reyes, Sardinia had them wrapped with manila paper.
Sardinias name and signature as well as those of Engr. Reyes and an employee of respondent
Ramos, Jr. were written on the tape used for sealing the wrapping paper. Thereafter, the electric
meters were taken to petitioners office.

When asked by the court, Sardinia stated that the information regarding the existence of tampered
electric meters was relayed to petitioner by an informant whose identity he refused to divulge.
Moreover, due to the alleged urgency of the situation, his team could not afford to wait for
respondent Ramos, Jr. to return from Manila; hence, they continued with the inspection.

Petitioner next presented ENGR. REYES on the witness stand. Essentially, he testified that his work
involved using standard metering instrument and conducting inspections and investigations of
alleged tampering of electric meters both in residential and commercial buildings.

According to Engr. Reyes, on 16 September 1988, he inspected two electric meters as evidenced by
the reports he accomplished and marked as Exhibits "4" and "5" for petitioner. Using a standard
equipment of his office, he discovered that the two electric meters were not accurately registering
the electricity consumed by respondent Ramos, Jr. Particularly, electric meter number 47019 did not
record electric consumption at light load and 27.57% consumption at full load.24 Similarly, electric
meter number 1587 did not register any rotation when tested at light load; at full load, it reflected
only a 33.53% accuracy.25

Further, Engr. Reyes corroborated Sardinias testimony that the government seal of electric meter
number 47019 was deformed or tampered with. In his report as regards electric meter number 1587,
Engr. Reyes shared Sardinias observation that its DLPCs seal was deformed while its government
seal was missing.

Lucero testified that he was assigned in the laboratory section of petitioner. He maintained that it
was the standard procedure observed by petitioner that electric meters acquired by the latter are
tested26 using a standard testing instrument and thereafter, the meters are turned over to the
representatives of the Board of Energy (BOE)27 who subject the meters to their own examination.
After the BOE establishes the accuracy of an electric meter, it attaches thereto a seal which is
known as the BOE seal. This seal protects the meter from being opened such that one cannot get
into the internal component of an electric meter without breaking the BOE seal. Once an electric
meter bearing the BOE seal is installed, petitioner attaches to its bottom portion an outside seal
which prevents the meter from being pulled out anytime.
In addition, Lucero averred that on 16 September 1988, he was a member of the inspection team
which examined the electric meters issued under the account name of respondent Opea. As part of
the team, it was his task to make a load inspection report28 for each electric meter listing therein the
various electrical items connected to every meter.

Another witness for petitioner was ARSENIO SACAMOS, JR. (Sacamos, Jr.), head of petitioners
billing and collection department. Sacamos, Jr. stated in the witness stand that he was requested by
Atty. Oscar Breva, petitioners counsel, to prepare a summary of kilowatt consumption for account
numbers 510-4019 and 510-4020. In the case of account number 510-4019, his department collated
the material data from September 1983 to June 1989. His analysis of the data established a drastic
drop in electric consumption recorded by electric meter number 47019 commencing in January 1984
until September 1988 when the replacement meter registered a high consumption.

As regards account number 510-4020, Sacamos, Jr. averred that they gathered the pertinent
information from September 1983 to June 1989 and data revealed a severe drop in electric
consumption from July 1985 until September 1988 when electric meter number 1587 was replaced.

As the two electric meters were not accurately registering the amount of electricity used by
respondent Ramos, Jr., petitioner demanded from the latter payments of unbilled consumption for
the two accounts. For account number 510-4019, he prepared a computation of unbilled
consumption of respondents indicating that as of 19 September 1988, a total unpaid consumption
amounting to 65,918.13 for the period January 1984 to September 1988 inclusive of 22,737.49
cumulative surcharge.

In account number 510-4020, the unbilled consumption prepared by their department indicated a
total unbilled consumption to be 28,328.45 which includes 8,184.72 in surcharges.29

Over the vigorous objection by respondents counsel, the trial court received in evidence the updated
summary of kilowatthour consumption prepared by Sacamos, Jr.s department for the period July
1989 to March 1990 of account number 510-4019 as recorded by electric meter number 24305.30 A
similar summary was prepared for account number 510-4020 as registered by electric meter number
45908 which replaced electric meter number 1587.31

In the course of his testimony, Sacamos, Jr. also explained the processes of computing a
consumers actual electric consumption. The first method simply involves computing the average
consumption of electric power while the second involves calculating the average monthly reading at
a certain period of time after a defective electric meter was replaced.

Petitioner then presented as its witness the head of its customers relation department in 1983,
JOSELITO ORTIZ. Ortiz testified regarding a letter-complaint of respondent Ramos, Jr. coursed
through Konsumo Dabaw complaining of the abnormal reading of the replacement meter for account
number 510-4019. In his response to said letter-complaint, Ortiz wrote separate letters to Konsumo
Dabaw32 and to respondent Ramos, Jr.33 explaining that the erroneous meter reading was because
the meter installed in lieu of the purported tampered one was registering electric consumption
backwards. Because of this finding, another electric meter was installed under account number 510-
4019 and a credit adjustment was made on the electric bills under the name of respondent Opea.

The last witness for petitioner was MANUEL ORIG, vice-president of petitioner who stated in his
testimony that petitioner suffered damages because of the filing of this case by respondents, to wit:
moral damages in the amount of 20,000.00; exemplary damages amounting to 10,000.00;
attorneys fees of 40,000.00; and litigation expenses of 10,000.00.34
On the other hand, respondents presented for their first witness GALAGAR. Galagar testified that
after the removal of the two electric meters involved in this case, the inspection team requested her
and her former fellow employee Perucho to observe the meter testing and examination conducted by
the team despite their lack of knowledge about the whole procedure. After the testing, she and
Perucho signed the inspection reports prepared by Sardinias team which were marked during the
trial as Exhibits "7" and "AA." In addition, Galagar stated that during the entire period of her
employment with respondent Ramos, Jr., she never saw anyone tinker with the subject electric

The second witness presented by respondents was respondent RAMOS, JR. himself who declared
that he learned about the removal of the two electric meters upon his return from his trip to Manila.
Soon thereafter, he went to petitioners office to clarify what transpired in the afternoon of 16
September 1988 and was told by Atty. Braganza that the inspection team removed the electric
meters because they were defective. In addition, he was informed that the electric supply to his
residence and his office would be reconnected upon his payment of the 2,000.00 deposit for each
electric meter. Respondent Ramos, Jr. also declared in court that he had no participation in the
alleged tampering of the electric meters nor did he cause anyone else to tamper the same.

On cross-examination, respondent Ramos, Jr. admitted that at the time he paid the deposit to
petitioner, he was made to sign a letter dated
19 September 198835 which, in part, reads:

September 19, 1988

The Manager

Davao Light & Power Co., Inc.

Davao City

Dear Sir:

This has reference to kilowatthour Meter No. 47019/1587 under Account Nos. 510-4019/-4020
connected to the electrical installation in the name of my mother-in-law CRISTINA OPENA which I
understand has been reported to you as having been tampered.


Very truly yours,


After the trial, the court a quo issued its decision dated 01 October 199036 the dispositive portion of
which reads:

WHEREFORE, finding the evidence of plaintiff, sufficient by preponderance, to sustain relief in the
enforcement of defendants computation of alleged tampered meters, marked as plaintiffs [Annexes]
"C," to "C-8" up to "G" and "G-8," finding the evidence of defendant in the reverse order of trial, not
sufficient by preponderance of evidence, to warrant enforcement of [defendants] so-called unbilled
electrical consumption against plaintiff, the above-documents, are declared null and void, without
any effect, against plaintiff.
As a consequence of the filing of this case, on account of the trouble, worries, mental agony,
suffered by plaintiff due to defendants unreasonable imposition of the so-called unbilled
consumption, without any factual and legal basis, defendant is ordered to pay plaintiff the amount of
10,000.00 as moral damages, including exemplary damages, by way of example to the public, in
the amount of 5,000.00 and cost against defendant.

As a result of this decision, defendants counterclaim, is denied.37

The trial court dismissed as without basis petitioners claim that electric meter numbers 1587 and
47019 were tampered with. The trial court pointed to the fact that petitioners evidence and
testimonies given by Sardinia, Engr. Reyes, and Lucero failed to bolster its position that the subject
electric meters were indeed tampered particularly since the identity of the purported perpetrator of
the misdeed was never established by petitioner. Petitioners recalcitrance to reveal its confidential
source did not also escape the trial courts perceptiveness, thus:

Indeed, why defendant cannot reveal the identity of the source of its information, as to the defect of
the subject meters, when precisely, it was because of the said information, that prompted defendant
to inspect and test the subject [meters]? There is nothing urgently dangerous to protect the identity
of said informant because anyway, he or she, can be safely protected by defendant and that anyway
everything was known, so that plaintiff or anybody else, cannot do anything to run after the alleged
informant. As it [turned-out], said information, could have provided sufficiently, a key to [plaintiffs]
involvement [to] the alleged "tampering," . . .38

Another point taken against petitioner was its insistence to conduct the examination of the electric
meters in question despite the absence of respondent Ramos, Jr. As the trial court observed, both
Galagar and Perucho did not know anything about electricity and the procedure undertaken by
petitioners inspection team. Moreover, the presence of respondent Ramos, Jr. could have
presented petitioner with the opportunity to confront him on the matter of electric meter tampering.

As for the amount of unbilled consumption, it was the trial courts finding that the procedure adopted
by petitioner in computing the amounts being claimed from respondents were "unreliable and highly
speculative"39 as the factors considered such as average monthly consumption seemed to have been
arbitrarily arrived at.

Aggrieved by the trial courts decision, petitioner elevated its case to the Court of Appeals which
affirmed, with modification, the findings of the court a quo, to wit:

WHEREFORE, in view of the foregoing disquisitions, except for the deletion therefrom of the award
of moral damages, exemplary damages and attorneys fees, the appealed judgment is hereby
AFFIRMED, in all other respects.40

Petitioner is now before this Court, through the instant petition for review, relying upon the following

1. Passage of R.A. No. 783241 vindicates petitioner.

2. Broken, deformed, and missing seals are prima facie evidence of meter-tampering.

3. Consumption record of respondents show a significant drop in consumption.

4. Failure to disclose tipster does not destroy presumption.

5. Concern of the Court of Appeals over possible defect of electric meters or that the tipster was
responsible for the tampering is misplaced.

6. Manner of computation of the amount and period of the unbilled consumption (now called
differential billing under R.A. No. 7832) is legal and reasonable.42

Essentially, petitioner raises the issues of: (1) whether the Court of Appeals erred in not retroactively
applying Republic Act No. 7832 and (2) whether the appellate court erred in not finding respondents
liable for unbilled consumption.

The petition is bereft of merit.

The law in force at the time of the institution of the present case was Presidential Decree No. 401 or
the law Penalizing the Unauthorized Installation of Water, Electrical or Telephone Connections, the
Use of Tampered Water or Electrical Meters, and Other Acts. The pertinent portion of this statute

. . . [A]ny person who installs any water, electrical or telephone connection without previous authority
from the Metropolitan Waterworks and Sewerage System, the Manila Electric Company or the
Philippine Long Distance Telephone Company, as the case may be; tampers and/or uses tampered
water or electrical meters or jumpers or other devices whereby water or electricity is stolen; steals or
pilfers water and/or electric meters or water, electric and/or telephone wires; knowingly possesses
stolen or pilfered water and/or electrical meters as well as stolen or pilfered water, electrical and/or
telephone wires, shall, upon conviction, be punished by prision correccional in its minimum period or
a fine ranging from two thousand to six thousand pesos, or both. . .

On 08 December 1994, Rep. Act No. 7832 otherwise known as the "Anti-electricity and Electric
Transmission Lines/Materials Pilferage Act of 1994" was approved. Section 2 of this law enumerates
the acts constitutive of illegal use of electricity, to wit:

SEC. 2. Illegal Use of Electricity. - . . .


(c) Tamper, install or use a tampered electrical meter, jumper, current reversing transformer,
shorting or shunting wire, loop connection or any other device which interferes with the proper or
accurate registry or metering of electric current or otherwise results in its diversion in a manner
whereby electricity is stolen or wasted;

(d) Damage or destroy an electric meter, equipment, wire, or conduit or allow any of them to be so
damaged or destroyed as to interfere with the proper or accurate metering of electric current; and

(e) Knowingly use or receive the direct benefit of electric service obtained through any of the acts
mentioned in subsections (a), (b), (c), and (d) above.

On the other hand, Section 4 of the same law lists the circumstances which shall establish the prima
facie evidence of illegal use of electricity. Among these are:

(iii) The existence of any wiring connection which affects the normal operation or registration of the
electric meter;
(iv) The presence of a tampered, broken, or fake seal on the meter, or mutilated, altered, or
tampered meter recording chart or graph, or computerized chart, graph or log;

(vi) The mutilation, alteration, reconnection, disconnection, bypassisng or tampering of instruments,

transformers, and accessories;

(vii) The destruction of, or attempt to destroy, any integral accessory of the metering device box
which encases an electric meter or its metering accessories; and. . .

Petitioner insists that the Court of Appeals erred when it did not apply the presumption of meter
tampering in this case. It argues that the broken, deformed, and missing seals are prima
facie evidence of meter tampering and, when taken together with the significant drop in the
registered electric consumption of respondents, establishes that the latter clearly benefited from the
inaccuracy of electric meters 47019 and 1587. We do not agree.

In the case of United States v. Luling,43 this Court recognized "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

In Jison v. Court of Appeals,45 we declared

The foregoing discussion, however, must be situated within the general rules on evidence, in light of
the burden of proof in civil case, i.e., preponderance of evidence, and the shifting of the burden of
evidence in such cases. Simply put, he who alleges the affirmative of the issue has the burden of
proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of
trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiffs prima facie case, otherwise, a verdict must be
returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must
produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own
evidence and not upon the weakness of the defendants. The concept of "preponderance of
evidence" refers to evidence which is of greater weight or more convincing, that which is offered in
opposition to it; at bottom, it means probability of truth.46

In other words, the proof of the existence of the prima facie evidence is still the burden of the
plaintiff. Moreover, as will be shown later, Rep. Act No. 7832 cannot apply because it was only
approved on 08 December 1994; hence, the general rules on evidence must be applied.

In this case, petitioner anchors its claim of meter tampering on the result of the examination
conducted by its inspection team. Its witnesses

Sardinia, Engr. Reyes, and Lucero - all testified that a plain view of the electric meters in question
showed that the inner and outer seals which were supposed to be attached thereto were either
deformed, missing, or replaced with ordinary lead wire. Furthermore, the meter testing conducted by
Engr. Reyes revealed that the two electric meters were not accurately recording the electric
consumption of respondents.

We hold that petitioners evidence is insufficient for us to rule in its favor.

While it is true that respondent Ramos, Jr. merely offered a categorical denial of the accusation
hurled against him and his co-respondent Opea, nevertheless, the records of this case present
other factors which should tilt the scale of evidence in favor of respondents.

As established by petitioners witnesses Sardinia and Lucero, the allegedly tampered electric meters
were installed in conspicuous portions of respondent Ramos, Jr.s residence and office. In his cross-
examination Sardinia testified in the following manner:


Q - You are familiar with the place of Cristina Opea and/or Teofilo Ramos?

A - I am not really that familiar, but I have seen the place when I inspected.

Q - It is located along Quezon Boulevard in this city, is that correct?

A - Yes, sir.

Q - The meter is located also in front of the building facing Quezon Boulevard?

A - Yes, sir.

Q - And it is located about 2-1/2 to 3 meters high?

A - I think, it is higher than that.

Q - And the place is surrounded by residential houses?

A - Yes, sir.

Q - It is also a busy street?

A - I think.

Q - We said busy, because several trucks, several jeepneys, several cars and even pedestrian
passed the street?

A - Yes, sir.

Q - Would you agree with me, that if somebody opened or touched the meter, just facing the Quezon
Boulevard street, this is very visible to people around?

A - I dont think, I can agree with you, because the location of meter is quite higher, considering that
this is beyond [reach of] ordinary people.

Q - But it can be seen by people around or even by the pedestrian [passing] by?

A - Yes, sir.

Q - In fact, even the passing passengers inside the jeep, it can be seen?
A - It can be seen.

Q - In other words, if somebody touches or opens [tinkers] with that meter, it can be easily visible to
the people around?

A - I think.47

On the other hand, Luceros cross-examination proceeded thus:

Q - On September 16, 1988, when you went to the place of plaintiff, you knew that the electric meter
was installed outside the residence?

A - The installation of the meter?

Q - The meter was outside the residence fronting Boulevard Avenue?

A - Yes, Sir.

Q - And it is elevated about three meters high from the ground?

A - I cannot remember.

Q - But it is above the ground?

A - It is above the ground.

Q - Can it be reached by a hand without stepping on a certain object or you have to step on a

A - I cannot remember.

Q - And you admit that Quezon Boulevard is a very busy street whereby trucks, jeeps and several
pedestrians pass from time to time?

A - Yes, Sir.48

As can be gleaned from the testimonies of petitioners witnesses, the electric meters were mounted
in notable places within the premises owned by respondent Opea. More than that, the building itself
was situated along a busy street in Davao City. This being the case, it becomes highly inconceivable
that no one witnessed the alleged tampering of the subject electric meters considering the
surroundings where they were set up. Indeed, any person tinkering with the meters could have
easily attracted the attention and suspicion of neighbors and passers-by.

Even if this Court indulges petitioner in its claim that it received a confidential information from an
unidentified source regarding the claimed meter tampering, still, such allegation cannot support a
finding against respondents. As aptly observed by the Court of Appeals:

Appellants49 (petitioner herein) admit that they have no direct evidence to show that appellees
(respondents herein) caused the meter to be tampered, claiming that in cases such as this, it is well
nigh impossible to secure such kind of evidence because it is a clandestine operation.
However, appellants contradicted their own stand when they claim that they have their own source
which furnished them information regarding the alleged tampering. Appellants witness Jose R.
Sardinia in answer to the courts query testified

Q - Did the Court understand from you Mr. Sardinia that the source of this alleged tampering were
submitted to your [field] office confidentially?

A - Yes, Your Honor.

Q - As Assistant Legal Officer of the Davao Light, this confidential matter is not even known to you?

A - It was given to me in confidentially (sic) and I am not going to divulge it.

Q - Meaning that confidential has something to do with the business of Davao Light or confidentially
in the sources of information itself?

A - Yes, I think, this is confidentially taken in order for the company to protect it safeguard also the

Q - Meaning you are safeguarding the identity of the informer?

A - Yes, Your Honor.

Notwithstanding the fact that appellants have the best or complete evidence entirely within their
control, they refused to produce or at least, refrained from producing the same. Thus appellants
failed to prove their claim with the best evidence obtainable their informer/source.

On this matter, it has been held that where a party fails to present a fact necessary to his case when
it is within his power to do so, it will be presumed that such fact does not exist. 50

On this point, petitioner relies heavily on this Courts holding in the case of People of the Philippines
v. Lopez51where we ruled that the testimony of an informer is not indispensable in view of the
testimony of the prosecution witnesses who participated in the "buy-bust" operation. Such reliance is

In the Lopez case, we held that there was no need for the prosecution to present the confidential
informer as the poseur-buyer himself positively identified the accused as the one who sold to him
one deck of methamphetamine hydrochloride or "shabu." The trial court then properly relied on the
testimonies of the police officers despite the prosecutions decision not to present the informer.

In this case, as the testimonies of petitioners witnesses failed to directly link respondents to the
alleged meter tampering, it was essential for petitioner to present, as its witness, the supposed
informer instead of simply relying on the testimonies of some members of the inspection team. As
the records show, the testimonies of Sardinia, Engr. Reyes, and Lucero were bereft of any indication
that respondents either tampered or caused the claimed tampering of the electric meters.

Anent the issue of unbilled consumption, petitioner contends that the amount to be charged to a
consumer for unbilled consumption cannot be calculated with exactitude. Thus, even Rep. No. 7832
itself provides for five different methods of computing the sum of unbilled consumption and two
modes of determining the period of back-billing 52 and that the two methods it employed in
determining respondents unbilled consumption in this case are now incorporated into the said
legislation. This, petitioner maintains, proves that there was nothing arbitrary in its determination of
the unbilled consumption it seeks from respondents. These techniques involve the use of the highest
recorded monthly consumption within the five-year billing period preceding the time of the discovery
and employing the highest recorded monthly consumption within four (4) months after the time of

Petitioners argument fails to convince.

It is a basic rule in our jurisdiction that laws do not have retroactive effect, unless the contrary is
provided.54 In the present case, Rep. Act No. 7832 is bereft of any indication that the legislature
intended to give it a retroactive application. On the contrary, Section 17 of said law clearly provides
that it "shall take effect thirty (30) days after its publication in the Official Gazette or in any two (2)
national papers of general circulation." As the Rep. Act No. 7832 plainly states its prospective
application, we cannot give credence to petitioners argument that its passage validates the amounts
it imposed on respondents for unbilled consumption.55

Moreover, petitioner, as a public utility corporation, "has the imperative duty to make a reasonable
and proper inspection of its apparatus and equipment to ensure that they do not malfunction, and the
due diligence to discover and repair the defects therein."56

As claimed by petitioner, the sudden "drastic" drop in the registered electric consumption
commenced sometime in December 1983 or January 1984 for account number 510-4019 and July
1985 or August 1985 for account number 510-4020.57 Inexplicably, petitioner allowed several years to
lapse before deciding to conduct an inspection of the electric meters involved in this case. Such
failure on its part to detect the extended unusual pattern in the recorded electric consumption clearly
demonstrates gross negligence on its part and palpable violation of its duty "to make a reasonable
and proper inspection of its apparatus and equipment to ensure that they do not malfunction, and the
due diligence to discover and repair defects therein. Failure to perform such duties constitutes

Indeed, it is highly inequitable if we are to allow a public utility company to be continuously remiss in
its duty and then later on charge the consumer exorbitant amount for the alleged unbilled
consumption or differential billing when such a situation could have been easily averted. We simply
cannot sanction petitioners utter neglect of its duty over a number of years as this would
undoubtedly be detrimental to the interest of the consuming public.

WHEREFORE, premises considered, the petition is DENIED, and the Court of Appeals decision
dated 29 May 1997 in CA-G.R. CV No. 35114, affirming with modification the decision of the
Regional Trial Court, Branch 17, Davao City in Civil Case No. 19,648-89, is hereby AFFIRMED. With

G.R. No. L-45137 September 23, 1985


HON. MALCOLM G. SARMIENTO, District Judge, Court of First Instance of Pampanga, Branch
I and the PEOPLE OF THE PHILIPPINES, respondents.

In this special civil action of certiorari and Prohibition with Preliminary Injunction, petitioners assail
respondent Judge Malcolm G. Sarmiento's denial of their Motion to Dismiss filed in the nature of
demurrer to evidence in Criminal Case No. 808 for Estafa entitled "PEOPLE OF THE PHILIPPINES
vs. FE BAUTISTA, MILAGROS CORPUS and TERESITA VERGERE ", pending before the defunct
Court of First Instance of Pampanga Branch I.

An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with estafa was filed
before the sala of Judge Malcolm G. Sarmiento. The third accused, Teresita Vergere, was granted a
separate trial. To prove its case, the prosecution presented during the trial the private complainant,
Dr. Leticia C. Yap, as its only witness. Thereafter, petitioners, believing the prosecution failed to
prove their guilty beyond reasonable doubt, moved to dismissal the case by way of demurrer to the

In an Order dated June 3, 1976 respondent judge denied said motion.1 The Order states:

Fe Bautista and Milagros Corpus, accused, through counsel, filed a "Moton to

Dismiss" (Demurrer to Evidence) to the information charging the two accused for
Estafa, The other third accused Teresita Vergere, granted as separate trial.

The grounds alleged in the Motion to Dismiss are as follows: First, the infrmation alleges that the
two accused received jewelries from Dr. Leticia C. Yap on April 19, 1975 on consignment. The
defense' contention is that the jewelries were received by the said accused by virtue of purchase and
sale. The defense overlooks the other allegation in the Information specifically alleging:

That these pieces of jewelries should be sold by the accused on

commission basis and to pay or to deliver the proceeds thereof to Dr.
Leticia C. Yap if sold, and if not sold to return said jewelries. ...

In spite of represented demands made on the said accused, said

accused failed and refused and still fails and refuses to return the
jewelries or deliver the proceeds thereof to the damage and prejudice
of said Dr. Leticia C. Yap in the total amount of P77,300.00.

The meaning of consignment is not a sale.

It means that the goods sent by one person to another, to be sold or

disposed of by the latter for and on account of the former. The
transmission of the goods.

Agency is within the foregoing meaning by Bouvier's Law Dictionary (Vol. 1, pp. 619-

The offended party testified that the accused acted as her agents for the sale of the
jewelries. Second ground, that the prosecution failed to establish the prior demand to
prove misappropriation on the part of the accused. Exhibits B and B-1 are
documentary evidence to establish demand through Atty. Gorospe made by the
offended party prior to the filing of the case. This letter of demand was subsequently
made after several previous oral demands were made by the complainant on said

The Court believes that the prosecution established a prima facie case of Estafa
alleged in the Information against said accused on the evidence presented so far on

PREMISES CONSIDERED, the Court hereby denies the defense' Motion to Dismiss
and orders the trial of this case for the reception of evidence of the accused on July
9, 1976 at 8:00 o'clock in the morning.


Accordingly, a motion for reconsideration was duly filed 2 but was likewise denied "for lack of
merit 3 Hence, this petition.

Initially, it is necessary to point out that the remedy of certiorari is improper, The respondent Judge's
order denying the petitioners' motion to dismiss the complaint by way of demurrer to the evidence is
merely an interlocutory order, It cannot, therefore, be the subject of a petition for certiorari. What
should have been done was to continue with the trial of the case and had the decision been adverse,
to raise the issue on appeal. 4

The rule that certiorari cannot be a substitute for appeal, however, admits an exception. This is when
the questioned order is an oppressive exercise of judicial authority. 5 But, even granting petitioners
the benefit of the exception, still certiorari would not lie. For, as would be shortly explained, there
was no arbitrary exercise of judicial authority.

It is the contention of petitioners that respondent Judge lost jurisdiction to proceed with the trial of
the case and that he was in duty-bound to acquit them, considering his findings in denying their
motion to dismiss that "....the prosecution established a prima facie case of Estafa alleged in the
Information against said accused on the evidence presented so far on record". Petitioners further
argue that in a criminal case, conviction can be had only upon proof beyond reasonable doubt and
not on a mere prima facie case.

Since the denial of the motion to dismiss was anchored on a finding of a prima facie case, a clear
understanding of the term and its implications is in order.

A prima facie case is that amount of evidence which would be sufficient to counter-
balance the general presumption of innocence, and warrant a conviction, if not
encountered and controlled by evidence tending to contradict it, and render it
improbable, or to prove other facts inconsistent with it, and the establishment of a
prima facie case does not take away the presumption of innocence which may in the
opinion of the jury be such as to rebut and control it. Ex parte Parr 288 P. 852, 855,
106 Cal.
App. 95. 6

There is no denying that in a criminal case, unless the guilt of the accused is established by proof
beyond reasonable doubt, he is entitled to an acquittal. But when the trial court denies petitioners'
motion to dismiss by way of demurrer to evidence on the ground that the prosecution had
established a prima facie case against them, they assume a definite burden. It becomes incumbent
upon petitioners to adduce evidence to meet and nullify, if not overthrow, the prima facie case
against them. 7 This is due to the shift in the burden of evidence, and not of the burden of proof as
petitioners would seem to believe.

When a prima facie case is established by the prosecution in a criminal case, as in the case at bar,
the burden of proof does not shift to the defense. It remains throughout the trial with the party upon
whom it is imposedthe prosecution. It is the burden of evidence which shifts from party to party
depending upon the exigencies of the case in the course of the trial. 8 This burden of going forward
with the evidence is met by evidence which balances that introduced by the prosecution. Then the
burden shifts back.

A prima facie case need not be countered by a preponderance of evidence nor by evidence of
greater weight. Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the
case in equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it
happen that at the trial the weight of evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has the burden of proof, he cannot prevail. 9

In the case at bar, the order denying petitioners' motion to dismiss, required them to present their
evidence. They refused and/or failed to do so. This justified an inference of their guilt. The inevitable
result was that the burden of evidence shifted on them to prove their innocence, or at least, raises a
reasonable doubt as to their guilt.

Petitioners, likewise, assign as error the order of respondent Judge directing them to present their
evidence after the denial of their motion to dismiss. By doing so, they contend that respondent Judge
would, in effect, be relying on the possible weakness of the defense' evidence, rather than on the
strength of the prosecution's own evidence in resolving their guilt or innocence,

We find petitioners' aforesaid submission utterly devoid of merit. Such a procedure finds support in
the case of Arbriol vs. Homeres 10 wherein we held that

Now that the Government cannot appeal in criminal cases if the defendant would be
placed thereby in double jeopardy (Sec. 2, Rule 118), the dismissal of the case for
insufficiency of the evidence after the prosecution has rested terminates the case
then and there. But if the motion for dismissal is denied, the court should proceed to
hear the evidence for the defense before entering judgment regardless of whether or
not the defense had reserved its Tight to present evidence in the event its motion for
dismissal be denied The reason is that it is the constitutional right of the accused to
be heard in his defense before sentence is pronounced on him. Of course if the
accused has no evidence to present or expressly waives the right to present it, the
court has no alternative but to decide the case upon the evidence presented by the
prosecution alone. (Emphasis supplied)

WHEREFORE, finding the order complained of to be well-taken and there being no grave abuse of
discretion that attended its issuance, the instant petition is DISMISSED with costs against

The Presiding Judge of the Regional Trial Court of Pampanga where this case is now assigned, is
hereby ordered to continue immediately with the trial of Criminal Case No. 808 until its final

G.R. No. 104044 March 30, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

ALEXANDER NAVAJA, accused-appellant.

Accused Alexander Navaja appeals from the decision 1 of Branch 5 of the Regional Trial Court (RTC)
of Cebu in Criminal Case No. CBU-16994, finding him guilty beyond reasonable doubt of selling a
prohibited drug in violation of Section 4, Article II of Republic Act (R.A.) No. 6425, as amended,
otherwise known as the Dangerous Drugs Act. The dispositive portion of the decision reads in part
as follows:

WHEREFORE, all the foregoing considered, this Court finds accused Alexander
Navaja guilty beyond reasonable doubt of violation (sic) of Sec. 4, Art. II, of RA No.
6425, as amended, and absent any modifying circumstances, hereby sentences said
accused with (sic) the penalty of life imprisonment and a fine of P20,000.00 and
cost de oficio.2

Judgment was promulgated on 14 October 1991. Thereupon, the accused filed a Notice of
Appeal3 manifesting his intention to appeal the said decision "to the Court of Appeals or to the
Supreme Court." The trial court gave due course thereto and correctly ordered the transmittal of the
records of the case to this Court.4

Accused was the object of a buy-bust operation conducted by the

Anti-Narcotics and Dangerous Drugs Section (ANDDRUS) of the Cebu City Police Station,
Metropolitan District Command on 30 August 1989 at sitio Tambisan, Salvador Extension,
Labangon, Cebu City. Unlike in other buy-bust operations where the supposed seller of prohibited
drugs is arrested immediately after the transaction, Navaja successfully evaded arrest after the
consummation of the sale and just as the members of the buy-bust team were about to pounce on
him. On 6 September 1989, the ANDDRUS filed a complaint against the accused for the violation of
Section 4, Article II of R.A. No. 6425, as amended, which was duly endorsed to the Office of the City
Prosecutor of Cebu City.5 A preliminary investigation was conducted by the latter without any
controverting evidence having been offered by the accused because of the non-submission of
counter-affidavits. On 23 October 1989, the Office of the City Prosecutor prepared an Information
against the accused for the violation of Section 4, Article II of R.A. No. 6425, as amended. 6 The
same was filed on 13 November 1989 with the RTC of Cebu City; its accusatory portion reads:

That on or about the 30th day of August, 1989, at about 1:00 o'clock in the afternoon,
in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, with deliberate intent, did then and there sell and deliver, without
authority of law, one (1) line of marijuana dried leaves, buds and seeds,
approximately 100 grams, a prohibited drugs, (sic) to a person who posted himself as
buyer, (sic) in Violation of Section 4, Art. II, RA 6425, as amended.

The case was docketed as Criminal Case No. CBU-16994 and was raffled off to Branch 5 of the
same court. In its Order of 28 February 1990, the trial court archived the case, as the accused had
not yet been arrested, and decreed the issuance of an alias warrant of arrest.7

On 10 May 1990, the accused was finally apprehended while attending the hearing of a habeas
corpus case filed by his mother against the police officers stationed at Pahina Central or Taboan
Market, Cebu City in connection with a case of illegal possession of firearms filed against
him.8 Consequently, Criminal Case No. CBU-16994 was revived and arraignment of the accused
was set for 2 July 1990. Arraigned on said date, the accused pleaded not guilty.9

During the trial, the prosecution presented Pfc. Ranulfo Espina, a member of the team which
conducted the buy-bust operation; Cesar Cagalawan, Regional Chemist of the NBI; and Myrna
Areola, Chief of the Chemistry and Physical Identification Section of the PC/INP Crime Laboratory
Service, Cebu City. The last two testified that the pieces of evidence submitted to them (Exhibits "A"
and "B" to "B-62") were positive for marijuana. The defense, on the other hand, presented Seno
Caedo, Joaquina Navaja (mother of the accused) and the accused himself.

The facts, as proven by the prosecution and as summarized by the trial court in its decision, are as

Stripped to essentials, their testimonies disclosed that on August 30, 1989 at around
8:00 o'clock in the morning, Ranulfo Espina was on duty at ANDDRUS (Anti-
Narcotics and Dangerous Drugs Section], Fuente Osmea, Cebu City. While there,
together with Pfc. Abraham Ocampo, Pfc. Milo Dagasdas, Pat. Roseller Paler, their
Chief of Office Lt. Fortunato Quijon, and two agents, namely Belocura and Camargo,
a confidential informant arrived and informed them that a certain Alex is engaged in
the selling marijuana (sic) at Sitio Tambisan, Salvador St., Cebu City. Their informant
further told them that Alex will not sell by joint but by line or kilo. That the first time he
heard of Alex was five days before, because they received calls regarding his illicit

Afterwards, Lt. Fortunato Quijon called them for a briefing relating to a buy bust
operation to be conducted against Alex. In the briefing, Lt. Quijon informed them that
two poseur-buyers will be utilized in the
buy-bust operation because Alex is a big time marijuana pusher. They also supplied
the informant the marked money to be used in the buy-bust, one P100.00 bill bearing
serial number JR685858 and one P50.00 bill bearing serial number HA483042.

At 12:30 noon of that same day, he, together with Pfc. Abraham Ocampo, Pfc.
Gualberto Gabales, Pfc. Milo Dagasdas, Pat. Roseller Paler, and agents Belocura
and Camargo left their office to conduct the operation. They arrived at sitio
Tambisan, Salvador Ext. at around 1:00 o'clock in the afternoon. Upon arrival, they
let the two poseur-buyers to walk [sic] ahead of them, and tailing [sic] them secretly.
At the target place, for the buy-bust operation, they posted themselves in different
strategic places in order to get a clear view of their poseur-buyers and the pusher.
That moments later, and from a distance of 8 to 10 meters, they noticed their poseur-
buyers approached by a person beside the chicken pens. After a short conversation,
they saw the person got [sic] something wrapped in a sheet of newspaper under the
galvanized roof. The person then handed it to one of their poseur-buyers. The other
poseur-buyer took the marked money from his pocket and handed the same to the
pusher. After giving the money, the poseur-buyer immediately gave the pre-arranged
signal by combing his hair. Instantly, they rushed to the place where Alex, the
pusher, was, but the latter ran upon noticing their presence. That some of their
comrades gave chase to Alex but they failed to catch him. They failed also to recover
the marked money from Alex. However, they recovered from their poseur-buyers the
one line of marijuana leaves, buds and seeds (Exh. A). They also found a brown
cigarette case (Exh. B) containing 62 sticks of handrolled marijuana cigarettes (Exhs.
B-1 to B-62) near the chicken pens. That when they inquired from the neighborhood
the [sic] name of the person who sold the marijuana they were told that the man was
Alexander Navaja, alias "Sindak", the accused in this case.

That they then submitted the evidence confiscated to Lt. Quijon for a field test
examination. That per certification (Exhs. C, C-1, C-2 and C-3) issued by Lt. Quijon,
the evidence were [sic] found positive for marijuana. After the field test examination,
they sent the evidence for laboratory examination to the PC Crime Laboratory per
letter-request (Exhs. E, E-1,
E-2, E-3) of Lt. Quijon. That per Chemistry Report No. C-314-89 (Exhs. F, F-1, F-2,
F-3) issued by Myrna P. Areola, Chief of the Chemistry and Physical Identification
Section of the PC/INP Crime Laboratory Service, Cebu City, the evidence submitted
were [sic] positive for marijuana. Furthermore, the evidence confiscated from the
accused were [sic] also submitted to the National Bureau of Investigation (NBI) for
examination, upon order of the court. That Dangerous Drugs Report No. 90-DD-
16309 (Exhs. D, D-1, D-2, D-3) issued by Cesar Cagalawan, Regional Chemist of
NBI, Region 7, shows that the specimens submitted were positive for marijuana.10

The accused denied that he was at any time engaged in the selling of marijuana or that he had ever
smoked it.11 He likewise denied that he was caught selling the prohibited drug presented as Exhibits
"A" and "B" by the prosecution in a buy-bust operation conducted on 30 August 1989. 12 All three (3)
defense witnesses testified that the accused has never been known as "Sindak" and that the
accused's namesake, Alexander Navaja alias "Sindak," the son of Pepe Navaja, was the person
selling marijuana in the area; however, the said "Sindak" was killed in January 1990 by his financier
and associate, Oscar Parba.13

Defense witness Seno Caedo also testified that he and the accused were engaged in the buying
and selling of fighting cocks; on the day of the alleged buy-bust operation, they were in
Mantalongon, Dalaguete which is an hour's ride from Cebu City.

In convicting the accused, the court a quo relied on the testimony of Pfc. Ranulfo Espina, thus:

Pfc. Ranulfo Espina made a positive identification of the accused, Alexander Navaja,
to be the same person who sold and delivered 100 grams of dried marijuana leaves,
buds, seeds and stalks wrapped in a sheet of paper to the poseur-buyers; the 100
grams of dried marijuana leaves, buds, seeds and stalks were found to be positive of
[sic] marijuana by the findings of both Lt. Myrna P. Areola and Mr. Cesar Cagalawan,
the Forensic Chemist of the PCCL and of the National Bureau of Investigation,

xxx xxx xxx

Although the testimony of Pfc. Espina has not been corroborated by any of his
companions during the buy-bust operation, he made a positive and affirmative
testimony [sic] how the operation was conducted, where and when, and the identity
of the person who sold to the poseur-buyers the said marijuana leaves. The defense
have [sic] not produced any single evidence of any improper motive on the part of
Pfc. Espina and other prosecution witnesses to prevaricate and testify falsely against
the accused. Accused admitted that he had no misunderstanding with Pfc. Espina
and anyone of his companions in the buy-bust operation. The filing of the instant
case was well-ahead of the filing of the habeas corpus petition against another group
of police officers headed by one Pat. Raul Tumakay. As a matter of fact, accused
was arrested by virtue of the warrant issued in this case in the course of the hearing
of the petition for a writ of habeas corpus, before the sala of Hon. Meinrado Paredes.
Definitely, it cannot be said that this case was filed in retaliation and as leverage to
the petition for habeas corpusfiled by the mother of the accused against Pat. Raul
Tumakay, et

In his Appellant's Brief, accused interposes five (5) errors allegedly committed by the trial court,
hereby quoted verbatim:











We shall take up these errors in the order they are presented.

In support of the first assigned error, accused contends that while prosecution witness Ranulfo
Espina had five (5) other companions, none of them was presented as a witness; moreover, their
non-presentation was not sufficiently explained. He concludes that the companions' testimonies
would have been adverse if they had been presented in court. He also faults the trial court for relying
on People vs. Ardiza;16 he claims that the said case is not applicable because two (2) peace officers
had testified therein. Besides, he argues that Ranulfo Espina, who was eight (8) to ten (10) meters
away, could not have fully seen the accused and the poseur-buyers because the accused's house is
surrounded by a fence and chicken pens which supposedly obstructed Espina's line of sight.

We are unable to agree. There is no rule of evidence which requires the presentation of a specific or
minimum number of witnesses to sustain a conviction for any of the offenses described in the
Dangerous Drugs Act. It is the prosecuting fiscal's prerogative to determine who or how many
witnesses are to be presented17 in order to establish the quantum of proof necessary for conviction.
In this case, the prosecution deemed it sufficient to present Pfc. Espina alone since any other
testimony which would have been given by the other members of the buy-bust team would be
merely corroborative in nature. The non-presentation of corroborative witnesses does not constitute
suppression of evidence and would not be fatal to the prosecution's case.18 Besides, there is no
showing that the other peace officers were not available to the accused for the latter to present as
his own witnesses. The rule is settled that the adverse presumption from a suppression of evidence
is not applicable when (1) the suppression is not willful, (2) the evidence suppressed or withheld is
merely corroborative or cumulative, (3) the evidence is at the disposal of both parties and (4) the
suppression is an exercise of a privilege.19

The court, for its part, is not precluded from rendering a judgment of conviction based solely on the
testimony of a single witness as long as such testimony is found to be credible and satisfies the
court that the accused is guilty beyond any reasonable doubt of the crime charged.20

The accused was seen not caught as he had escaped in flagrante as a result of the buy-bust
operation. In such an operation, what is important is the fact that the poseur-buyer received the
marijuana from the accused and that the same was presented as evidence in court.21 This Court has
consistently held in drug cases that absent any proof to the contrary, law enforcers are presumed to
have regularly performed their duty.22 In the instant case, there exists no such contrary proof.
Accused has not presented evidence of any ulterior motive that could have moved Ranulfo Espina to
testify against him. The rule is also settled that in the absence of evidence that would show why the
prosecution witness would testify falsely, the logical conclusion is that no improper motive existed
and that such testimony is worthy of full faith and credit.23

Accused has misunderstood the case of Andiza wherein We held that in a buy-bust operation where
the peace officers had witnessed the transaction between the seller and poseur-buyer, the latter's
testimony is not indispensable; the testimonies of the peace officers who had witnessed the
transaction would be sufficient for conviction and would not constitute hearsay. That two (2) peace
officers testified in Andiza and only one (1) took the witness stand in the instant case is of no
moment since one witness would be enough if he is credible and if his testimony satisfies the mind
of the court as to the guilt of the accused with moral certainty.

The allegation that Ranulfo Espina could not have seen both the accused and the poseur-buyers as
they transacted business because of the fence and the chicken pens, is not convincing at all.

We have carefully read the transcript of the stenographic notes of Pfc. Espina's testimony and find
no reason to doubt his positive identification of the accused. Although he was eight (8) to ten (10)
meters away from the spot where the transaction took place, considering that the incident occurred
in broad daylight (1:00 o'clock in the afternoon) and, as admitted by the accused in his Appellant's
Brief, the said fence is a wire fence,24 it could not have been impossible for Pfc. Espina to see and
recognize the accused as the person with whom the poseur-buyers transacted business. During the
cross-examination of Pfc. Espina, counsel for the accused did not even endeavor to show the
impossibility of the former's having been able to observe or witness the transaction because of the
alleged obstructions. Said counsel only realized too well the risks of such further inquiry. As regards
the name of the person who sold marijuana leaves to the poseur-buyers, Pfc. Espina also testified
that after the operation, they inquired front the neighbors and were informed that the complete name
of the person who had just escaped is Alexander Navaja alias "Sindak."25

The second assigned error is wholly unacceptable. Firstly, the rule is well-settled that the issue of
the witnesses' credibility is to be resolved primarily by the trial court because it is in a better position
to decide the question, having heard such witnesses and observed their deportment and manner of
testifying during the trial. Accordingly, the trial court's findings on the matter of the credibility of the
witnesses are entitled to the highest degree of respect and would not be disturbed on appeal in the
absence of any showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which would have affected the result of the case.26 In the
instant case, We find no reason and the accused himself has not shown any to depart from the
said rule. Secondly, the accused failed, either deliberately or through his counsel's sheer neglect, to
propound the appropriate questions to corroborate Seno Caedo's testimony that on the date and
hour of the alleged illegal transaction, both he and the accused were in Mantalongon, Dalaguete,
Cebu, a place which is eighty (80) kilometers from Cebu City. We find the failure of the accused, the
principal party involved in the case, to personally claim the defense of alibi which Caedo testified
on rather strange. Thirdly, it was not shown by Caedo that the distance of eighty (80) kilometers
is such that it would have been impossible for the accused to be at the scene of the buy-bust
operation at the time the same was conducted. It is a fundamental juridical dictum that the defense
of alibi cannot prevail over the positive identification of the accused.27 Furthermore, for this defense
to prosper, it is not enough to prove that the accused was somewhere else when the crime was
committed; it must likewise be demonstrated that it was physically impossible for him to have been
at the scene of the crime at the time of its commission.28

The trial court correctly brushed aside the accused's allegation that he was only prosecuted for the
offense subject of this appeal to weaken the habeas corpus case which his mother had filed against
certain policemen.29 The records readily disclose that the Information in this case was filed long
before the accused was arrested for the charge of illegal possession of firearms on 4 May 1990; it
was this May arrest which brought about the filing by the accused's mother of the habeas
corpus case against the police officers responsible therefor. As stated earlier, the Information in this
case was prepared on 23 October 1989 and was filed in court on 13 November 1989. Thereupon,
the case was archived in the meantime because despite efforts to arrest the accused, the latter
always managed to elude his would-be captors. Espina testified that they tried three (3) to four (4)
times to arrest the accused but were always informed that the latter could no longer be found in that

As his fourth assigned error, accused claims that he is not the Alexander Navajo, nicknamed
"Sindak," who sold the prohibited drugs to the buy-bust team on 30 August 1989, but a mere
namesake of the said drug-pusher. Accused avers that he is known in the neighborhood as "Alex."
He further relies on the testimony of Seno Caedo that his (accused's) nickname is "Alex" and not
"Sindak."31 This contention is absolutely without merit. The party named as accused in the caption of
the Information in this case is "ALEXANDER NAVAJA @ SINDAK." The opening paragraph of the
body thereof reads:
The undersigned 4th Assistant City Prosecutor of Cebu accuses ALEXANDER
6425, AS AMENDED, committed as follows:32 (italics supplied for emphasis).

At his arraignment, he voluntarily entered his plea without any protest as to his alias or nickname. By
failing to object thereto, he thus admitted that his alias or nickname is, indeed, "SINDAK."

Moreover, whether or not there lived another person with the same name in the area where the buy-
bust operation was conducted is immaterial to the case at bar. The identity of the accused as the
person who sold marijuana to the poseur-buyers was established by Pfc. Espina, a member of the
buy-bust team who saw the face of the seller. Espina positively identified the appellant in court as
the man who sold marijuana that day. Thus:

Q What happened to the two marked money [sic] the P100 and the
P50 bill?

A We were not able to recover it because the pusher managed to


Q By the way, what is the name of the seller whom [sic] you have
conducted a buy bust operation?

A Alexander Navaja alias Sindak.

Q When for the first time did you know his complete name?

A After the operation.

Q How did you come to know his complete name?

A We asked from the neighbors during the incident.

Q At the time the buy bust operation was conducted wherein your
poseur buyers was [sic] approached by a person, how far were you
from the poseur buyers and the Seller?

A I was about 8 to 10 meters.

Q What was your position in relation to the poseur buyers?

A I was fronting on [sic] his direction.

Q How about the Seller?

A The same.

Q With this position, you saw clearly the face of the pusher?

A Yes.
xxx xxx xxx

Q How far were you from the two other members of your group?

A Three or four arms length.

Q If Alexander Navaja alias Sindak is present before this Court, will

you please point him out?

A (witness pointing to a man who answered the name Alexander


The last assigned error is unworthy of any consideration. The trial court did not render a judgment of
conviction "due to the merit of the prosecuting fiscal," but on the basis of the evidence against the
accused. It is evident that the latter, in raising the last error, misread or misinterpreted the following
statement in the appealed decision:

Parenthetically, it may be worth to mention in passing, that Asst. City Prosecutor

Virginia P. Santiago, the public prosecutor regularly assigned of [sic] this branch of
the court, is observed to be objective in the prosecution of cases. She adheres to the
two-fold function [sic] of a public prosecutor; she would not hesitate to stand up
before this court to ask for the dismissal of a case if on the basis of what she found
or discovered, further prosecution would result to injustice to the accused. But she
and this court are not persuaded by the version of the accused in his defense. 34

Prescinding from all the foregoing, the challenged decision must, therefore, be affirmed.

WHEREFORE, the Decision of Branch 5 of the Regional Trial Court of Cebu in Criminal Case No.
CBU-16994 convicting the accused ALEXANDER NAVAJA @ "SINDAK" of the crime charged, is
hereby AFFIRMED in toto.

Costs against the accused.

G.R. No. 110015 July 11, 1995


SABENIANO, JOY DENNIS SABENIANO, et. al., respondents.


A ten-year lease contract, commencing on March 4, 1988 and set to expire on March 4, 1998, over
the subject building situated at 1408 Roxas Boulevard, Pasay City was executed by and between
the private respondents Sabenianos as owners-lessors, and petitioner Manila Bay Club Corporation
as lessee.1

The lease agreement, however, was short-lived because private respondents, in a letter dated May
28, 1990, unilaterally terminated the lease with the request that petitioner vacate the leased
premises and peacefully surrender its possession, on the following grounds:

xxx xxx xxx

1. Failure on the part of the LESSEE until this very late date, to insure the leased building
which is a violation of the requirement of paragraph 22 of the CONTRACT OF LEASE and
highly prejudicial to the interest of the LESSOR;

2. For unpaid accumulated rentals in arrears, amounting to the appreciable sum of

P151,575.57 and failure on your part as LESSEE to issue all the postdated checks agreed
upon in the original and amended contract, dated March 15, 1988;

3. For failure on the part of the LESSEE to pay the fees, taxes and other assessments on the
improvements as required by paragraph 16 of the Contract of Lease, which is also prejudicial
to the owner-lessor. 2

Private respondents invoked the "Special Clause" of the lease contract as found in paragraph 19
thereof to justify their action. It reads:

19. If the rental herein stipulated or any part thereof at any time, shall be in arrears or unpaid,
or if the tenant shall at any time fail or neglect to perform or comply with any of the
covenants, conditions, agreements or restrictions stipulated or if the tenants shall become
bankrupt or insolvent or shall compound with his creditors, then and in any of such above
cases, this lease contract shall become automatically terminated and cancelled and the said
premises shall be peacefully vacated by the LESSEE for the LESSOR to hold and enjoy
henceforth as if these presents have not been made and it shall be lawful for the LESSOR or
any person duly authorized in his behalf, without any formal notice or demand to enter into
and upon said leased premises or any part thereof without prejudice on the part of the
LESSOR to exercise all rights on the contract of lease and those given by law. And upon
such cancellation of the contract, the LESSEE hereby grants to the LESSOR the legal right
to enter and take possession of the leased premises as though the term of the lease contract
has expired.
Feeling aggrieved by the premature termination of the lease, petitioner on June 8, 1990 filed a
complaint with the Makati Regional Trial Court for "Specific Performance with Prayer for Preliminary
Injunction and Damages" against private respondents, alleging in substance that private
respondents' unilateral cancellation of the lease contract was arbitrary and capricious, for petitioner
did not violate any of its provisions. Petitioner thus prayed that private respondents be ordered to
desist from further harassing petitioner, honor the lease contract, and to pay exemplary damages,
professional fee and costs.3

On the other hand, private respondents in their answer claimed that petitioner: 1) failed to pay
monthly rentals as they fell due, in violation of paragraph 2;

Monthly Rental

2. The rate of the monthly rental shall be Thirty Five Thousand Pesos (P35,000.00), with an
annual acceleration rate of Five (5) percent for the succeeding three (3) years, and Seven (7)
percent for the remaining four (4) years which shall be paid in advance by the LESSEE to the
LESSOR every fourth (4th) day of every month effective immediately upon the signing of this
Contract of Lease without the necessity of demand. Overdue monthly rentals shall earn
interest at the rate of five (5) percent per month. Continuous non-payment of rent for a period
of three (3) months shall be understood as an automatic cancellation of the lease agreement
without prejudice to the LESSEE to redeem such non-payment subject to a corresponding
penalty charges and surcharge as provided for in this agreement.

2) used the leased premises for gambling and prostitution, prohibited under paragraph 8;

8. The LESSEE hereby expressly agrees and warrants that he shall use the premises
exclusively for the following purposes: restaurant, catering, gym, recreation, and other
services which are not contrary to public laws, morals and that which is legal, and lawful.
Such purposes as gambling and prostitution or any other practices of similar nature is strictly
prohibited., and

3) failed to secure an insurance policy on the leased premises for the benefit of private respondents
as lessors, as provided for in paragraph 22;

Effectivity of this Lease.

xxx xxx xxx

22. The building must be insured and the insurance premium must be for the account of the
LESSEE. The appraised value of the present status of the building by the insurance
company shall be the amount of insurance of which the beneficiary shall be for the benefit of
the LESSOR. The appraised value of the improvements or renovation made by the
insurance company shall accrue to the benefit of the LESSEE.

By reason of these violations, specifically that pertaining to paragraph 22, private respondents
argued that the lease contract was deemed terminated and cancelled pursuant to the "Special
Clause" in paragraph 19 providing for automatic termination and cancellation, thereby entitling
private respondents to take the possession of the leased premises.

The trial court held that petitioner was not in default nor in arrears in payment of rentals to private
respondents, and that evidence is wanting to prove that the leased premises were being used by
petitioner for gambling and prostitution activities. However, the trial court found that petitioner
violated the "insurance clause" (paragraph 22) of the contract. It declared that:

. . . , the evidence shows and the plaintiff (petitioner) even admitted in its memorandum, that
it failed to secure an appraisal of the leased building in its original condition or at the time of
the execution of the contract for the purpose of insuring the same for the benefit of the
defendants (private respondents).

While it is true as pointed out by the plaintiff, that it has insured the leased building in
question from the very inception of the lease contract, the Court notes that the beneficiary of
said insurance policies was the Manila Bay Club Corporation and not the defendants-lessor
as agreed upon in the contract. (See paragraph 22, Contract of Lease, Exhibits "A", "K" and
"L") Although nothing had happened on the insured building, the fact of the matter is that the
defendants who owned the building were unnecessarily exposed to the insurable risk during
the period of the insurance policies referred to, and that in case of loss the defendants would
not have collected the proceeds of the insurance.

Plaintiff, also argued that it had insured the subject building with the Fortune Assurance and
Indemnity Corporation for the period of June 15, 1990 to June 15, 1991 with the defendant
as the beneficiary (Exhibit "J-1"). Examination of said insurance policy (Exhibit "J") however,
shows that it was dated June 1, 1990 or after the defendant Modesta R. Sabeniano had
written the plaintiff on May 28, 1990 (Exhibit "C") informing the latter that their contract was
considered terminated (under paragraph 19 of their lease contract) by reason of violation of
the terms thereof.

Consequently, the trial court in its decision dated October 17, 19914 dismissed the complaint,
declared the lease contract terminated as of May 28, 1990, and ordered petitioner to immediately
return possession of the leased premises to private respondents and pay monthly rentals of
P250,000.00 commencing on May 28, 1990 with 10% interest per annum, P20,000.00 attorney's
fees and litigation expenses.

Petitioner appealed to respondent Court of Appeals which, in its now-assailed decision dated March
25, 19935affirmed with modification the lower court's decision. The decretal portion provides:

WHEREFORE, with the following modifications:

(a) deleting the ten (10%) per cent interest per annum on the monthly rental or P250,000.00;

(b) deleting the award of P20,000.00 attorney's fees,

the decision is hereby AFFIRMED in all other respects. No pronouncement as to costs.


Petitioner's motion for reconsideration was likewise denied in a Resolution dated May 7,
1993.6 Hence, this petition for review on certiorari with petitioner assigning the following errors, to wit:











The first assigned error touches on the issue of whether or not petitioner violated the "insurance
clause" (paragraph 22) of the lease contract. With an outright dismissal of the petition in mind,
private respondents argue that the question is purely factual no longer reviewable by, and thus
binding on the Court. Respondent Court of Appeals' findings, as quoted hereunder, essentially
affirming those made by the trial court that petitioner committed a breach of the "insurance clause",
should therefore be upheld and left undisturbed.

Assailing the trial court's rationalization, appellant contends that while the lease contract did
call for the building to be insured, it was incumbent upon the lessors, the defendants herein,
to provide the plaintiff with the appraised value of the building to be insured. But no such
appraised value was furnished plaintiff appellee from the execution of the contract in March
1988 up to the time the case reached the court. Nonetheless, according to plaintiff-appellant,
the building was insured for P2,500,000.00 from the period June 15, 1988 to June 15, 1989;
and for the period from June 15, 1989 to June 15, 1990 plaintiff-appellant obtained insurance
for the building in the amount of P2,500,000.00 (the sum of P1,250,000.00 for defendants-
lessors, and P1,250,000.00 for plaintiff-lessee). And for the period from June 15, 1990 to
June 15, 1991, plaintiff-appellant continued the insurance on the building for P2,500,000.00,
with one-half thereof payable to defendants-lessors. Thus, according to plaintiff-appellant it
had substantially complied with par. 22 of the lease contract and if there was any delay in the
allocation of the amount of the insurance policy, such delay was attributable to defendants
who did not provide plaintiff-appellant with the appraised value of the building.
We reject plaintiff-appellant's proposition. Under the factual features of this case, for the fire
insurance policy for the period of June 15, 1988 to June 15, 1989, in the amount of
P5,000,000.00, the assured was only the Manila Bay Club Corporation, plaintiff-appellant
herein (Exhibit "K"). In the same vein, in the fire insurance policy for June 15, 1989 to June
15, 1990 in the sum of P5,000,000.00, the assured was plaintiff-appellant Manila Bay Club
Corporation and no other else (Exhibit "L").

Clearly, from the inception of the contract of lease on March 4, 1990, or for two years,
plaintiff-appellant already violated paragraph 22 of the contract that the building must be
insured and the insurance premium must be for the account of the lessors. In fact, in its letter
of May 21, 1990, plaintiff-appellant admitted that:

We are still working out with an Insurance Company for segregating the
coverage for issuance of policy purposes, . . . . (par. III, Exhibit "F"; also
Exhibit "3").

It will be noted that plaintiff-appellant filed the instant case on June 8, 1990 against
defendants-appellants for specific performance. At the time this action was instituted,
plaintiff-appellant had not yet segregated the coverage of the insurance for the benefit of
defendants-lessors. The fire insurance policy for P1,250,000.00 payable to defendants-
lessors (Exhibit "J") became effective only on June 15, 1990 when the case was already
being litigated in the court below.

Consequently, We find no fault or error by the trial court when it ruled that plaintiff-appellant
violated the lease contract for failure to secure insurance policy on the leased premises for
the benefit of the defendants-lessors. Moreover, Mr. Danilo Aquino, a witness for plaintiff-
appellant admitted that there was a violation of paragraph 22 of the lease contract, to wit:

COURT: Can you show to the Court, which particular

insurance policy that complies with that particular paragraph?

WITNESS: The Fortune Insurance Policy, June 15, 1988,

1989, that was the insurance policy we get . . .

ATTY. VILLANUEVA: So you are referring to Exhibit "K"?

WITNESS: However, we were not able to make the

necessary endorsement and we were able to make it of the
latest insurance policy upon receiving the notice from the
lessor that they are demanding the Corporation to secure the
necessary fire insurance policy.

COURT: Repeat, it should be exclusively for the benefit of the

lessor, did you or did you not comply with that?

WITNESS: We were not able to comply with that, Your Honor.

ATTY. VILLANUEVA: Now, under Exhibit "K", which pertains

to insurance policy which you took for the year 1988 to 1989,
there was no mention about the compliance of this provision,
am I correct?
WITNESS: Yes, sir.

ATTY. VILLANUEVA: Same thing with the insurance policy

for 1989 to 1990, there was no compliance of that specific
provision, am I correct?

WITNESS: Yes, sir.

ATTY. VILLANUEVA: Now, were the lessors conveying that

that is a ground for termination that was the time you secured
an insurance policy with the corresponding endorsement in
favor of the lessor, am I correct?

WITNESS: Yes, sir.

ATTY. VILLANUEVA: But, was there any appraisal that you

make to determine the value of the building then existing
without the renovation?

WITNESS: There was an appraiser, sir.

COURT: Prior to the renovation?

WITNESS: Yes, Your Honor.

ATTY. VILLANUEVA: What was the appraised value of the

lessor's property according to your appraisal now?

WITNESS: One Million Sixty Four Thousand Four Hundred

Pesos Only (P1,064,400.00), sir. (TSN, pp. 34-38, March 5,

Plaintiff-appellant further argues that it was the obligation of defendants-lessors to provide

plaintiff-appellant with the appraised value of the building for insurance purpose.

We are not persuaded by this argument, paragraph 22 of the contract of lease is clear and
explicit. This provision calls for the appraised value of the present status of the building by
the insurance company which shall be the amount of the insurance. Nowhere in paragraph
22 of the lease contract is there stipulated that defendants-lessors should furnish the plaintiff-
appellant with the appraised value of the building to be insured. The appraisal of the building
is a task devolving upon the insurance company. It is basic and fundamental that if the terms
of the contract are plain and readily understandable, there can be no room for interpretation.
(Republic vs. Sandigan, 203 SCRA 310). When the terms of a contract leaves no doubt as to
the intention of the parties, the literal meaning of the stipulations shall control. (Honrado, Jr.
vs. Court of Appeals, 198 SCRA 326; Papa vs. Alonzo, 198 SCRA 564). . . . .

Petitioner on the other hand strongly maintains that it is a question of law reviewable and reversible
by the Court.

On this particular point, we agree with petitioner. What a question of law or a question of fact is has
been consistently defined by the Court in this wise:
For a question to be one of law it must involve no examination of the probative value of the
evidence presented by the litigants or any of them. And the distinction is well-known: There
is a question of law in a given case when the doubt or difference arises as to what the law is
on a certain state of facts; there is a question of fact when the doubt arises as to the truth or
the falsehood of alleged facts. 8

Here, petitioner has made it very clear that it is not disputing respondent Court of Appeals' and the
trial court's findings vis-a-vis its failure to designate private respondents as beneficiaries in the
insurance policies it procured on the leased building at the inception of the lease contract. And from
the arguments raised herein by petitioner, this Court is indeed not called upon to reexamine and
appreciate anew any evidence presented below, (e.g., the insurance policies, other documents and
oral testimony, etc.), and thereafter arrive at a contrary finding. What petitioner is challenging is
solely the respondent Court of Appeals' conclusion drawn from these undisputed facts, i.e., that
petitioner's omission to designate private respondents as beneficiaries constituted a breach of
paragraph 22 of the lease contract. This Court in the early case of "Cunanan vs. Lazatin" (74 Phil.
719) has ruled that:

There is no question of fact here because the facts are admittedly proven. Whether or not
the conclusion drawn by the Court of Appeals from those facts is correct, is a question of law
which this Court is authorized to pass upon.

"Dauan vs. Sec. of Agriculture and Natural Resources" (19 SCRA 223) likewise held that:

. . . it is a rule now settled that the conclusion drawn from the facts is a conclusion of law
which the courts may review.

And in the relatively recent case of "Binalay vs. Manalo" (195 SCRA 374 [1991]), the Court, speaking
thru Justice Feliciano, reiterated the rule:

Jurisprudence is likewise settled that the Court of Appeals is the final arbiter of questions of
fact. But whether a conclusion drawn from such findings of fact is correct, is a question of law
cognizable by this Court.

However, while a review of the case is in order, we are not inclined to reverse.

By insisting that it is not disputing facts, petitioner in effect bound itself to ALL factual findings made
by respondent Court of Appeals. This necessarily includes the testimony of petitioner's own witness,
Mr. Danilo Aquino, declaring that petitioner indeed failed to comply with paragraph 22 of the contract
requiring that private respondents be made beneficiaries of the insurance policies to be procured
over the leased building, and that petitioner is well-aware that non-compliance is a ground for
termination. We quote again that particular testimony:

COURT: Can you show to the Court, which particular insurance policy that
complies with that particular paragraph?

WITNESS: The Fortune Insurance Policy, June 15, 1988, 1989, that was the
insurance policy we get . . .

ATTY. VILLANUEVA: So you are referring to Exhibit "K"?

WITNESS: However, we were not able to make the necessary endorsement
and we were able to make it of the latest insurance policy upon receiving the
notice from the lessor that they are demanding the Corporation to secure the
necessary fire insurance policy.

COURT: Repeat, it should be exclusively for the benefit of the lessor, did you
or did you not comply with that?

WITNESS: We were not able to comply with that, Your Honor.

ATTY. VILLANUEVA: Now, under Exhibit "K", which pertains to insurance

policy which you took for the year 1988 to 1989, there was no mention about
the compliance of this provision, am I correct?

WITNESS: Yes, sir.

ATTY. VILLANUEVA: Same thing with the insurance policy for 1989 to
1990, there was no compliance of that specific provision, am I correct?

WITNESS: Yes, sir.

ATTY. VILLANUEVA: Now, were the lessors conveying that that is a ground
for termination that was the time you secured an insurance policy with the
corresponding endorsement in favor of the lessor, am I correct?

WITNESS: Yes, sir. (Emphasis supplied)

Mr. Aquino's testimony is clearly a judicial admission against petitioner's own interest which estops
petitioner from contending that its incipient failure to procure insurance for the benefit of private
respondents does not constitute a violation of the lease contract, specifically the "insurance clause"
(paragraph 22). This is so because under Section 4, Rule 129 of the Rules of Court;

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

And that factual finding is as binding on this Court as it is on petitioner, for well-settled is the general
rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals is limited to
reviewing or revising errors of law; findings of fact of the latter are conclusive.9

In assailing its imputed violation of the lease contract, petitioner now argues that from a reading of
paragraph 22 which provides that:

22. The building must be insured and the insurance premium must be for the account of the
LESSEE. The appraised value of the present status of the building by the insurance
company shall be the amount of insurance of which the beneficiary shall be for the benefit of
the LESSOR. The appraised value of the improvement or renovation made by the insurance
company shall accrue to the benefit of the LESSEE.,

nowhere is it expressly stated that the duty to procure the insurance on the leased building for
private respondents' benefit devolves exclusively upon petitioner, thus intimating that private
respondents should likewise be faulted for not having obtained the insurance themselves. Petitioner
claims an ambiguity in the contract exists.

Petitioner's argument fails to impress. First, the express admission made by petitioner's witness Mr.
Danilo Aquino as to its non-compliance with the "insurance clause" (paragraph 22) of the lease
contract conclusively presupposes petitioner's full-awareness that such contractual duty rests on its
shoulders. Second, to the May 17, 1990 letter of one of private respondents, Modesta Sabeniano,
reminding petitioner of its repeated failure to deliver to private respondents the Original Policy of the
leased building as per the lease contract, 10 petitioner replied, in its letter dated May 21, 1990, 11 that
it is "still working out with our Insurance Company for segregating the coverage for issuance of
policy purposes." The tenor of petitioner's reply equally indicates, though not as categorical as the
admission, acknowledgment of a responsibility on its part to insure the leased building. For if it were
otherwise, in the face of private respondents' repeated demands on petitioner to secure the
insurance, petitioner should have explained to private respondents that it is not solely duty-bound to
insure the leased building and that private respondents might as well secure the insurance
themselves. But petitioner did not, and instead immediately secured insurance policies for 1988-89
and 1989-90 with petitioner as beneficiary and not private respondents. And third, petitioner cannot
successfully argue that the lease contract is a contract of adhesion solely prepared by private
respondents and for which reason the ambiguity should be resolved against the latter. Private
respondent Modesta Sabeniano testified that petitioner's lawyer, one Atty. Rivera, participated in the
preparation of the lease contract.


Q: Mrs. Sabeniano, who is this Efren Lim you mentioned in your cross

A: Chairman of the Manila Bay and the person whom I get in contact with Sir.

Q: And he is a signatory to the contract?

A: Yes, sir.

Q: And this Atty. Rivera that you mentioned in the course of your cross
examination before the contract was made.

A: He was introduced by Mr. Efren Lim as the lawyer of Manila Bay Sir,
before the contract was made.

Q: What contract are you referring to?

A: Lease contract. He made the preparation, my son is Romwell . . .

Q: Are you talking about the last proposal, lease contract, Exhibit

A: The old contract. This was his proposal. He suggested I have to draft a
contract for them to counter.

xxx xxx xxx

(T.S.N., April 25,1991, pp. 56-57) 12

It becomes clear that the lease contract was, as claimed by private respondents, indeed the "product
of mutual agreement between the parties", and not a "take it or leave it" proposition adhered to
helplessly by petitioner. Private respondent Modesta Sabeniano's testimony being a factual matter
should be taken on its face value, for, to emphasize once again, petitioner is precluded from
disputing facts. For these reasons, the purported ambiguity is resolved, unfortunately against

Petitioner likewise argues that despite its failure to endorse the first two (2) fire insurance policies to
private respondents, the latter are nonetheless amply protected since the insurance proceeds are
deemed to be held "in trust" for private respondents. This issue of "trust" was, as aptly pointed out by
private respondents, never raised before the trial court. Consequently, it cannot be raised before this
Court, for no question will be entertained on appeal unless it has been raised in the court below. 13 If
this issue was ever raised, petitioner did so only in its Motion for Reconsideration 14 of respondent
Court of Appeals' decision, the effect of which is as if it was never duly raised in that court at all. In
"Delos Santos vs. Reyes (205 SCRA. 487), the issue of estoppel was not raised by petitioner Delos
Santos in the Brief he submitted before the Court of Appeals. It was thus held that petitioner Delos
Santos cannot raise it for the first time in a petition for review before the Supreme Court.

Coming now to the second assignment of error, petitioner essentially contends that private
respondents cannot unilaterally rescind the lease contract because its purported violation of the
"insurance clause" (paragraph 22) was merely slight or casual.

We do not agree with petitioner. Under paragraph 19 of the lease contract, the lessee's (petitioner)
failure or neglect to perform or comply with any of the covenants, conditions, agreements or
restrictions stipulated shall result in the automatic termination and cancellation of the lease. It can be
fairly judged from the tenor of paragraph 19 that the parties intended mandatory compliance with all
the provisions of the contract. Among such provisions requiring strict observance is the "insurance
clause" (paragraph 22) which expressly provides that "the building must be insured and the
insurance premium must be for the account of the LESSEE. . . . . (emphasis supplied). Thus, upon
petitioner's failure to comply with the mandatory requirement of paragraph 22, private respondents
were well-within their right to rescind the lease contract by express grant of paragraph 19. Certainly,
there is nothing wrong if the parties to the lease contract agreed on certain mandatory provisions
concerning their respective rights and obligations, such as the procurement of the insurance and the
rescission clause. For it is well to recall that contracts are respected as the law between the
contracting parties, and they may establish such stipulations, clauses, terms and conditions as they
may want to include. As long as such agreements are not contrary to law, morals, good customs,
public policy or public order they shall have the force of law between them. 15

In this connection, none can be added to the respondent Court of Appeals' correct observation why
petitioner's omission to designate private respondents as beneficiaries in the insurance policies it
secured over the leased building is not merely a slight or casual breach, but a substantial one
allowing private respondents to rescind the lease contract.

Paragraph 22 of the lease contract demands that plaintiff-appellant must insure the building
subject of the lease with defendants-lessors as beneficiaries thereof. For two years, the
insurance policies taken on the properties were in the name of plaintiff-appellant, as the
beneficiary. Had the building suffered damages either by fire or other calamities during the
existence of the insurance coverage from 1988 to 1989, the favored party would indeed be
plaintiff-appellant. While the insurance coverage will work injustice to defendants-lessors, it
would unjustly enrich the plaintiff-appellant. Certainly under such milieu, the defendants-
lessors would be left in the open, holding an empty bag. To Our mind, therefore, non-
fulfillment of the stipulations in paragraph 22 of the lease contract is not a mere casual or
slight breach but a substantial one that goes into the very core of the contract of lease, next
in priority to the payment of the agreed rentals.16

Petitioner in its third assignment of error assails the P250,000.00 monthly rental adjudged against it
by the trial court and as affirmed by respondent Court of Appeals, claiming that there was no basis
for such finding.

Again, we disagree. In reaching that amount, the trial court took into consideration the following
factors: 1) prevailing rates in the vicinity; 2) location of the property; 3) use of the property; 4)
inflation rate; and 5) the testimony of private respondent Modesta Sabeniano that she was offered by
a Japanese-Filipino investor a monthly rental of P400,000.00 for the leased premises then occupied
by petitioner.17 Petitioner for its part should have presented its controverting evidence below to
support what it believes to be the fair rental value of the leased building since the burden of proof to
show that the rental demanded is unconscionable or exorbitant rests upon the lessee. 18 But
petitioner failed to do so. Hence, the valuation made by the trial court, as affirmed by respondent
Court of Appeals, stands.

It is worth stressing at this juncture that the trial court had the authority to fix the reasonable value for
the continued use and occupancy of the leased premises after the termination of the lease contract,
and that it was not bound by the stipulated rental in the contract of lease since it is equally settled
that upon termination or expiration of the contract of lease, the rental stipulated therein may no
longer be the reasonable value for the use and occupation of the premises as a result or by reason
of the change or rise in values. 19 Moreover, the trial court can take judicial notice of the general
increase in rentals of real estate specially of business establishments 20 like the leased building
owned by private respondents.

The crux of the petition having been disposed of, petitioner's last assignment of error requires no
further discussion.

WHEREFORE, for lack of merit, the petition is hereby DENIED, and the challenged decision of
respondent Court of Appeals is AFFIRMED in toto.


G.R. No. 110015 October 13, 1995


SABENIANO, JOY DENNIS SABENIANO, et. al., respondents.


After carefully perusing the instant motion for reconsideration, petitioner's arguments, in sum, dwell
on the focal issues involved in the controversy which have been passed upon in the Court's July 11,
1995 Decision sought to be reconsidered. No reasons of significant and compelling import have
been advanced to alter the Court's observation and conclusion that 1) petitioner's non-designation of
private respondents as beneficiaries of the insurance policies was a violation of the "insurance
clause" amounting to a "substantial", and not a mere "slight or casual", breach entitling private
respondents to rescind the lease contract, and 2) the amount of rentals/damages petitioner was
bound to pay was correctly adjudged by respondent Court of Appeals after slightly modifying the trial
court's assessment. The Court, however, would like to make some additional disquisitions in
response to certain noteworthy contentions raised by petitioner.

Anent the issue of the rentals/damages, petitioner avers that "the Decision awards excessive
damages" since "the Decision of this Honorable Court condemned the petitioner to pay, up front, the
total sum of P12,029,800.00", "a staggering sum by any calculation . . . that will probably reduce the
petitioner to utter bankruptcy"; It is likewise maintained that private respondents will be "unjustly
enriched" simply because petitioner failed to present controverting evidence, or rebut Mrs.
Sabeniano's testimony which, according to petitioner, is mere "speculation".

We need to stress the one decisive fact that petitioner had all the opportunity at its disposal before
the trial court to refute, with all allowable pieces of evidence it can produce, Mrs. Sabeniano's
testimony or any other evidence of private respondents, and there is nothing to indicate that
petitioner was ever denied such opportunity/opportunities by the trial court. The trial court,
respondent court and this Court cannot be faulted for taking private respondents' uncontroverted
evidence below vis-a-vis the monthly rentals on its face value no matter how "staggering" it may
appear for petitioner's omission to rebut that which would have naturally invited an immediate,
pervasive and stiff opposition from petitioner created an adverse inference that either the
controverting evidences to be presented by petitioner will only prejudice its case, or that the
uncontroverted evidence of private respondents indeed speaks of the truth. And such adverse
inference, recognized and adhered to by courts in judging the weight of evidence in all kinds of
proceedings, surely is not without basis the rationale and effect of which rest on sound, logical
and practical considerations.

The presumption that a man will do that which tends to his obvious advantage, if he
possesses the means, supplies a most important test for judging of the comparative
weight of evidence . . . If, on the supposition that a charge or claim is unfounded, the
party against whom it is made has evidence within his reach by which he may repel
that which is offered to his prejudice, his omission to do so supplies a strong
presumption that the charge or claim is well founded; it would be contrary to every
principle of reason, and to all experience of human conduct, to form any other
conclusion. (Starkie on Evidence, p. 846, Moore on Facts, Vol. I, p. 544).

Where the evidence tends to fix a liability on a party who has it in his power to offer
evidence of all the facts as they existed and to rebut the inferences which the proof
tends to establish, and he neglects or refuses to offer such proof, the natural
inference is that the proof, if produced, instead of rebutting, would support the
inference against him. (Pennsylvania R. Co. v. Anoka Nat. Bank, 108 Fed. Rep. 482,
486, 47 C.C.A. 454, per Caldwell, C.J., Moore on Facts, Vol. I, p. 545. Emphasis

It is a well-settled rule that when the evidence tends to prove a material fact which
imposes a liability on a party, and he has it in his power to produce evidence which
from its very nature must overthrow the case made against him if it is not founded on
fact, and he refuses to produce such evidence, the presumption arises that the
evidence, if produced, would operate to his prejudice, and support the case of his
adversary. (Missouri, etc. R. Co. v. Elliott, 102 Fed. Rep. 96, 102, 42 C.C.A. 188, per
Caldwell, C.J., Moore on Facts, Vol. I, p. 546. Emphasis supplied)

No rule of law is better settled than that a party having it in his power to prove a fact,
if it exists, which, if proved, would benefit him, his failure to prove it must be taken as
conclusive that the fact does not exist. (Wheeling v. Hawley, 18 W. Va. 472, 476, per
Patterson, J., quoted in Union Trust Co. v. McClellan, 40 W. Va. 405, 21 S.E. Rep.
1025, Moore on Facts, Vol. I, p. 544)

Where the burden is on a party to a suit to prove a material fact in issue, the failure,
without excuse, to produce an important and necessary witness to such fact raises
the conclusive presumption that such witness's testimony, if introduced, would be
adverse to the pretensions of such party. (Union Trust Co. v. McClellan, 40 W. Va.
405, 21 S.E. Rep. 1025, Moore on Facts, Vol. I, p. 545).

The rule is that where a party to an issue on trial has proof in his power which, if
produced, would render material, but doubtful, facts certain, the law presumes
against him if he omits to produce that proof, and authorizes a jury to resolve all
doubts adversely to his defense. (People v. Sharp, 107, N. Y. 427, 465, 14 N.E. Rep.
319, 342, per Danforth, J., Moore on Facts, Vol. I, p. 546).

Where facts are in evidence affording legitimate inferences going to establish the
ultimate fact that the evidence is designed to prove, and the party to be affected by
the proof, with an opportunity to do so, fails to deny or explain them, they may wall
be taken as admitted with all the effect of the inferences afforded. (Somers v.
McCready, 96 Md. 437, 53 Atl. Rep. 1117, per Jones, C.J., Moore on Facts, Vol. I, p.

The ordinary rule is that one who has knowledge peculiarly within his own control,
and refuses to divulge it, cannot complain if the court puts the most unfavorable
construction upon his silence, and infers that a disclosure would have shown the fact
to be as claimed by the opposing party. (Societe, etc., v. Allen, 90 Fed. Rep. 815,
817, 33 C.C.A. 282, per Taft, C.J., Moore on Facts, Vol. I, p. 561)

The inference still holds even if it be assumed, for argument's sake, that Mrs. Sabeniano's
testimony is improbable or weak, for it has likewise been said that:

Even if a party's testimony is improbable, the failure of the opposite party to

contradict it, although it was entirely within his power to do so if it were false, fully
entitles it to belief. (Nutting v. El. R. Co., 21 N.Y. App. Div. 72, 47 N.Y. Supp. 327,
Moore on Facts, Vol. I, p. 572)

Weak evidence becomes strong by the neglect of the party against whom it is put in,
in not showing by means within the easy control of that party that the conclusion
drawn from such evidence is untrue. (Pittsburgh, etc., R. Co. v. Callaghan, 50 III.
App. 678, 681, Moore on Facts, Vol. I, p. 572)

As weak evidence is often strengthened by failure of an opposing party to contradict

by evidence within his power, so the trier of facts may infer that testimony in chief is
worth its full face value when the other party is content to let it stand without cross-
examination or contradiction by other evidence. (Moore on Facts, Vol. II, p. 1417)
As petitioner seemed willing to admit private respondents' evidence bearing on the fair rental
value without question, the trial court was well-justified in having done the same
exhibiting, still, due consideration when it reduced the monthly rental value from P400,000.00
as per Mrs. Sabeniano's uncontroverted testimony, to P250,000.00. In answer, therefore, to
petitioner's questions, i.e.,
". . . does Mrs. Sabeniano's testimony cease to be speculation because the petitioner failed
to present 'controverting evidence'?", and "The fact that Mrs. Sabeniano could have testified
that she was offered P1 Million, indeed, P10 Million, indeed, P100 Million but would that, too,
'stand' simply because the petitioner failed to rebut it?", the Court is compelled, quite
regrettably, to answer in the affirmative.

With regard to petitioner's contention that it "did not raise a fresh matter on appeal", the Court merely
reiterates that petitioner's invocation of the principles of trust found its way only for the first time in its
"Motion For Reconsideration" of the respondent court's decision. If well-recognized jurisprudence
precludes raising an issue only for the first time on appeal proper, with more reason should such
issue be disallowed or disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court.

We cannot finally put this case to rest without confronting the perceived "unusual dispatch" in its
resolution the petitioner is "genuinely disturbed" of consisting in the rendition of the judgment (July
11, 1995) having been made in six (6) months from the ponente's appointment to the Court on
January 5, 1995. Petitioner amplifies that: 1) ". . . hardly has the ponente warmed his seat, the case
would be decided . . .", and 2) ". . . when prior to the appointment of the ponente, it took the rest of
the Justices of the Third Division of this Honorable Court more than a year to deliberate on the
Petition, . . . ".

It is the practice of the Court to encourage the speedy resolution of cases unloaded to a newly-
appointed Member, especially those cases that are already ripe for decision and in which motions for
their early resolution have been filed by either of the parties concerned, as in this case. This is the
reason why it became imperative to resolve this case at the soonest possible time and without
further delay, lest we be charged with footdragging on the case thereby putting the Court in a more
objectionable situation.

In fact, the undersigned ponente has come across some of the maiden decisions of one of
petitioner's counsels, Mr. Justice Abraham F. Sarmiento, a distinguished former magistrate of this
Court himself who the undersigned holds in high-respect, which were disposed of by him in less than
six (6) months from the date of his appointment to the Court on January 26, 1987. To name a few
are: People v. Decierdo, G.R. No. L-46956, May 7, 1987, 149 SCRA 496; People v. Saavedra, G.R.
No. L-48738, May 18, 1987, 149 SCRA 610; People v. Pecato, G.R. No. L-41008, June 18, 1987,
151 SCRA 14; People v. Ferrera, G.R. No. L-66965, June 18, 1987, 151 SCRA 113; Madrigal &
Company, Inc. v. Zamora, G.R. Nos. L-49023 and L-48237, June 30, 1987, 151 SCRA 355 (Labor
Case); Banco Filipino Savings & Mortgage Bank v. Pardo, G.R. No.
L-55354, June 30, 1987, 151 SCRA 481; and Del Rosario v. Hamoy, G.R. No. L-77154, June 30,
1987, 151 SCRA 719. And in all honesty, the undersigned ponente regards such prompt disposition
as something commendable, not condemnable.

WHEREFORE, premises considered, the Motion For Reconsideration is hereby DENIED with
G.R. No. L-33254 & G.R. No. L-33253 January 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

SAMSON and defendant-appellant.

PROVINCE OF PANGASINAN, offended party-appellee,

HEIRS OF LICERIO P. SENDAYDIEGO, defendants-appellants. *


In these three cases of malversation through falsification, the prosecution's theory is that in 1969
Licerio P. Sendaydiego, the provincial treasurer of Pangasinan, in conspiracy with Juan Samson y
Galvan, an employee of a lumber and hardware store in Dagupan City, and with Anastacio Quirimit,
the provincial auditor, as an accomplice, used six (6) forged provincial vouchers in order to embezzle
from the road and bridge fund the total sum of P57,048.23.

The provincial voucher in these cases has several parts. In the upper part with the legend "ARTICLE
OR SERVICE" the nature of the obligation incurred is indicated. That part is supposed to be signed
by two officials of the provincial engineer's office and by the governor's representative.

The middle part of the voucher contains five numbered printed paragraphs. Paragraph 1 is a
certificate to be signed by the creditor. It is stated therein that the creditor vouches that the expenses
"were actually and necessarily incurred". In the instant cases paragraph 1 was not signed
presumably because it is not relevant to the purchase of materials for public works projects.

Paragraph 2 is a certification that the expenses are correct and have been lawfully incurred. It is
signed by the provincial engineer.

Paragraph 3 contains these words: "Approved for pre-audit and payment, appropriations and funds
being available therefore." This is signed by the provincial treasurer.

Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No. 10724 dated February 28,
1969, reads:

I certify that this voucher has been pre-audited and same may be paid in the amount
of sixteen thought seven hundred twenty-seven and 52/100 (P16,727.52) in cash or
in check, provided there is sufficient fund cover the payment.

This is signed by the auditor.

Paragraph 5 is a certification signed by the provincial treasurer that the account mentioned in the
provincial engineer's certification "was paid in the amount and on the date shown below and is
chargeable as shown in the summary hereof. ... ." It may be noted that the provincial treasurer signs
two part of the voucher.

Following paragraph 5, and as referred to therein, is the receipt of the signed by the creditor. As
accomplished in Exhibit K, the receipt reads (it was signed according to the prosecution by Juan
Samson, a point which is disputed by him):
Received this 31st day of March, 1969, from L P. Sendaydiego, Province of
Pangasinan the sum of seven hundred twenty-seven pesos & 52/100 (16,727.52) in
full payment of the above stated account, which I hereby certify to be correct. Paid by
Check No. .................................


According to the prosecution, Samson also signed on the left margin of the six vouchers below the
stamped words: "Presented to Prov. Treasurer. By Juan Samson."

Voucher No. 10724 (Exh. K). This Provincial voucher, dated February 28, 1969, evidences the
payment of PI 6,727.52 to the Carried Construction Supply Co. of Dagupan City for lumber and
hardware materials supposedly used in the repair of the bridge in Barrio Libertad at the Umingan-
Tayug road in Pangasinan along the Nueva Ecija boundary (Exh. K). The voucher makes reference
to invoice No. 3327 and other supporting papers.

The falsity of that provincial voucher is proven by the following intances:

(a) That there was no project for the repair of the bridge at Barrio Libertad (P. 1; Exh. Z).

(b) That the amount of P16,727.52 was never received by the Carried Construction Supply Co The
alleged official receipt No. 3025 of the company dated March, 1969 (Exh. K-6) is forged.

(c) That the lumber and materials mentioned in Exhibit K were never delivered by the company to
the provincial government

(d) That in the provincial voucher, Exhibit K, and in the supporting requisition and issue voucher
(RIV) No. 2206 dated January 29, 1969 (Exh. A), covering the same lumber and hardware ma the
signatures of the following office were forged: Salvador F. Oropilla senior civil engineer; Rodolfo P.
Mencias, supervising civil engineer Victoriano M. Sevilleja, acting provincial engineer, and Ricardo
B. Probincias, chief of equipment of the governor's office. These four office denied that their
signatures in the two vouchers, Exhibits A and B, are their genuine signatures.

(e) That the imprint of the rubber stamp on Exhibits A and B, containing the words "Approved: For
and By Authority of the Governor (signed) Ricardo B. Primicias, Chief of Equipment", is not the
imprint of the genuine rubber stamp used in Primicias office.

(f) That charge invoice No. 3327 of the Carried Construction Supply Co. dated February 18, 1969,
containing a description and the prices of the lumber and hardware material (Exh. B), is fake
because, according to Ambrosio Jabanes, the company's assistant manager, the company's invoice
No. 3327 was issued to the Mountain Agricultural College (Exh. II-1). Oropilla denied that his alleged
signature on Exhibit B is his signature.

(g) That three other documents, supporting the provincial voucher (Exh. K), were also forged. Those
documents are the taxpayer's cate dated February 10, 1969 (Exh. C) stating that no tax is due on
the goods sold in the fake invoice No. 3327 and the two certificates as to the samples of lumber
allegedly purchased from the Carried Construction Supply Co., (Exh. D and E). Narciso P. Martinez,
a district forester, denied that his signatures in Exhibits D and E are his signatures.

(h) That Angelo C. Manuel the checker of the provincial auditor's office, denied that his signature on
the left margin is his signature (Exh. A-10).
The forged character of provincial voucher No. 10724 (Exh. K) is incontrovertible.

Other five forged voucher. Five other provincial vouchers evidencing supposed payments of
certain amounts to the Carried Construction Supply Co. for lumber and hardware materials
supposingly used in the repair of other bridges were also falsified. These five vouchers are the

(1) Voucher No. 11995 dated April 29, 1969 evidencing the payment of P14,571.81
for number and hardware materials allegedly used in the repair of Bayaoas bridge at
the Urbiztondo-Pasibi Road (Exh. O).

(2) Voucher No. 11869 dated April 15, 1969 evidencing the payment of P5,187.28 'or
lumber and hardware materials allegedly used in the repair of the Panganiban bridge
at the UminganTayug Road (Exh. P)

(3) Voucher No. 11870 dated April 28, 1969 evidencing the payment of P6,290.60 for
lumber and hardware materials allegedly used in the repair of the Cabatuan bridge at
the Umingan-Guimba Road (Exh. Q).

(4) Voucher No. 11871 dated April 15, 1969 evidencing the payment of P9,769.64 for
lumber and hardware materials allegedly used in the repair of the Casabar bridge at
the Binalonan-San Manuel Road (Exh. R).

(5) Voucher No. 11872 dated April 15, 1969 evidencing the Payment of P4,501.38 for
lumber and hardware materials allegedly used in the repair of the Baracbac bridge at
the Umingan-Guimba Road (Exh. S).

As in the case of voucher No. 10724 (Exh. K), Oropilla, Mencias, and Primicias declared that their
signatures in the said five vouchers are not their genuine signatures. Samson, who hand-carried the
said vouchers for processing, did not turn over to the provincial auditor's office the papers supporting
the said vouchers after the vouchers had been pre-audited. Hence, those supporting papers could
not be presented in evidence.

Jabanes, the aforementioned assistant manager of the Carried Construction Supply Co., testified
that the lumber and hardware materials mentioned in the five vouchers were never delivered by his
company to the provincial government. The charge invoices mentioned in the said vouchers were
cancelled invoices issued to the Mountain Agricultural College. The projected repairs of the bridges
were fictitious.

The company's cashier testified that the company never received the payments for the lumber and
hardware materials. The receipts evidencing payments (Exh. K-6, KK to KK-4 are fake official
receipts. The cashier produced in court the genuine official receipts (Exh. LL to LL-7) bearing the
serial numbers of the fake receipts. The genuine receipts do not refer to transactions with the
provincial government.

Samson played a stellar role in the processing of the six vouchers. He used to be an employee of
the pro treasurer's office. He resigned and worked with several firms doing business with the
provincial government. In 1969 he was the collector of the Carried Construction Supply Co. He
represented that firm in its dealings with the offices of the governor, provincial auditor, provincial
engineer and provincial treasurer. He was personally known to those provincial officials and the
employees of their offices (21-22 Sendaydiego's brief).
The six (6) forged provincial vouchers, with their respective supporting papers, were hand-carried by
Samson. He delivered the papers to Carmencita Castillo, the ledger clerk in the provincial engineer's
office, for recording and for her signature (Ekh. DD).

Thereafter, Samson brought the papers to the provincial treasurer's office. Marcelo Crusade, a
laborer in that office who performed the chore of recording the vouchers and payrolls, recorded
Vouchers Nos. 11869, 11871 and 11872 (Exh. P, R and S). Crusadas initials appear on the upper
lefthand corner of the said vouchers with the date 4/17/69.

Samson signed on the left margin of the vouchers to indicate that he presented them to the
provincial t r's office. Crusade said that after Samson had presented the said papers to him, Samson
brought them to Ricardo Baraan, the book-keeper of the provincial treasurer's office for processing
and for the latter's signature (Exh. WW).

From Baraan's office, Samson hand-carried the vouchers to the provincial auditor's office. He asked
Virginia Cruz, a clerk to record the same (Exh. CC).

Afterwards, Samson asked Donato Rosete the assistant provincial treasurer, to initialled the voucher
After Rosete had initialled the vouchers, Samson went to the provincial treasurer's office where the
amounts covered by the voucher were paid by Sendaydiego to him in cash (instead of by check) as
representative of the Carried Construction Supply Co. (Exh. EE). He received the payments on
March 31 and April 29 and 28 (four payments on that date) as shown on the face of the vouchers.

The signature of Sendaydiego and Quirimit, the auditor, on the said six vouchers are admittedly
authentic. Sendaydiego signed the vouchers ahead of Rosete, his assistant. Sendaydiego's defense
is that he signed the vouchers in the honest belief that the signatures therein of the provincial office
concerned were genuine because the voucher had been pre-audited and approved by the auditor.

Samson denied the authenticity of his two signatures on each of the six vouchers showing that he
received from Sendaydiego the amounts covered thereby as representative of the lumber and
hardware firm (Exh. OO to TT) and that he presented the vouchers to the provincial s treasurer 's
office (Exh. 6-12 Samson). Sendaydiego testified that Samson's signatures are genuine.

In connection with the six vouchers, Sendaydiego, Samson and Quirimit were charged with
malversation through falsification in three docketed as follows:

1. Criminal Case No. 23349 involving provincial voucher No. 10724 dated February
28, 1969 in the sum of P16,7Z7.52 (Exh. X), L-33252.

2. Criminal Case No. 23350 involving provincial vouchers Nos. 11869, 11870, 11871
dated April 15 (two dates) 28 and 15, 1969 for the respective amounts of P5,187.28,
P6,290.60, P9,769-64 and P4,501.38 (four vouchers, Exh. P, Q, R and S), now L-

3. Criminal Case No. 23351 involving provincial voucher No. 11955 dated April 29,
1969 in the sum of P14,571.81 (Exh. O), now L-33254.

After trial the lower court acquitted the auditor, Quirimit and found Sendaydiego and Samnson guilty
of malversation through falsification of public or official documents imposing each of the following
(1) In Criminal Case No. 23349, an indeterminate sentence of twelve years, ten
months and twenty-one-days, as minimum, to eighteen years, two months and
twenty-one days of reclusion temporal, as maximum, and a fine of P16,727.52 and to
indemnify solidarity the provincial government of Pangasinan in the same amount;

(2) In Criminal Case No. 23350, the penalty of reclusion perpetua and a fine of
P29,748.90 and to indemnify solidarily the provincial government of Pangasinan in
the same amount; and

(3) In Criminal Case No. 23351, an indeterminate sentence of twelve years, ten
months and twenty-one days, as minimum, to eighteen year two months and twenty-
one days of reclusion temporal as maximum , and a fine of P14,571.81 and to
indemnify solidarity the provincial government of Pangasinan in the same amount.

Sendaydiego and Samson appealed to this Court.

Sendaydiego died on October 5, 1976. His appeal as to his criminal liability was dismissed. Death
extinguished his criminal liability remained. The resolution of July 8, 1977 dismissing Sendaydiego's
appeal read s follows:

The death of appellant Sendaydiego during the pendency of his appeal or before the
judgment of conviction rendered against him by the lower court became final and
executory extinguished his criminal liability meaning his obligation to serve the
personal or imprisonment penalties and his liability to pay the fines or pecuniary
penalties (Art. 89[1], Revised Penal Code; 1 Viada, Codigo Penal, 4th Ed., 565).

The claim of complainant Province of Pangasinan for the civil liability survived
Sendaydiego because his death occurred after final judgment was rendered by the
Court of First Instance of Pangasinan, which convicted him of three complex crimes
of malversation through falsification and ordered him to indemnify the Province in the
total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal
action in the absence of express waiver or its reservation in a separate action (Sec.
1, Rule 111 of the Rules of court). The civil action for the civil liability is separate and
distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil. 1287; Roa
vs. De la Cruz, 107 Phil. 8).

When the action is for the recovery of money and the defendant dies before final
judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the
manner especially provided' in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the
Rules of Court).

The implication is that, if the defendant dies after a money judgment had been
rendered against him by the Court of First Instance, the action survives him. It may
be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24, 1975;
67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly
disbursed although he has no criminal liability (U S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased
Sendaydiego insofar as his criminal liability is concerned, the Court Resolved to
continue exercising appellate jurisdiction over his possible civil liability for the money
claims of the Province of Pangasinan arising from the alleged criminal acts
complained of, as if no criminal case had been instituted against him, thus making
applicable, in determining his civil liability, Article 30 of the Civil Code (Note: The
lower court had issued an order of attachment against him on January 13, 1970 for
the sum of P36,487 and in the brief for said appellant, there is no specific assignment
of error affecting the civil liability fixed by the trial court.) and, for that purpose, his
counsel is directed to inform this Court within ten (10) days of the names and
addresses of the decedent's heirs or whether or not his estate is under administration
and has a duly appointed judicial administrator. Said heirs or administrator will be
substituted for the deceased insofar as the civil action for the civil liability is
concerned (Secs. 16 and 17, Rule 3, Rules of Court). According to Sendaydiego's
brief, he had a wife and ten children named Arturo, Licerio, Jr., Prospero, Regulo,
Eduardo, Cesar, Nola, Aida, Wilfredo and Manolo (deceased).

The title of this case should be amended to show its civil aspect by adding thereto
the following. Province of Pangasinan vs. Heirs of Licerio P. Sendaydiego.

Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is
the basis of the civil liability for which his estate would be liable for which his estate would be liable.

Sendaydiedo's appeal; civil liability of his estate. In view of Sendaydiego's death, it is not
necessary to resolve his first two assignments of error, wherein he assails the imposition of reclusion
perpetua as a cruel and unusual penalty and wherein it is argued that there is no complex crime of
malversation through falsification committed by negligence.

In the third assignment of error, it is contended that the trial court erred in allowing private
prosecutors Millora and Urbiztondo to prosecute the case thereby allegledly subjecting the accused
to proceedings marked by undue publicity, pre-judgment, bias and political self-interest.

Atty. Vicente D. Millora, a senior member of the provincial board actually handled the prosecution of
the case from the preliminary investigation, which started on June 5, 1969, up to the termination of
the trial on July 29, 1970.

At the commencement of the preliminary investigation, the counsel for the accused auditor inquired
whether Atty. Millora was authorized by the provincial board to act as private prosecutor in
representation of the province of Pangasinan, the offended party. Atty. Millora replied that there was
a board resolution designating him as a private prosecutor.

The acting provincial commander, who filed the complaints manifested to the trial court that he had
authorized Atty. Millora to act as private prosecutor (4-8 tsn June 5, 1969).

Another defense counsel filed a written motion to inhibit Millora and the others as private
prosecutors. The lower court denied the motion in its order of June 18, 1969 (p. 40, Record of
Criminal Case No. 23350).

After the termination of the p investigation conducted by the lower court, the provincial fiscal of
Pangasinan and the city final of Dagupan City filed three informations against the accused all dated
November 4, 1969.
At the commencement of the trial on February 23, 1970 the city fiscal, an assistant provincial fiscal
and Atty. Millora, the private prosecutor, appeared for the prosecution. The city fiscal moved "that
the private prosecutor (Millora) be authorized to conduct the examination subject to our (the fiscal's)
control and supervision". The trial court granted the motion (7 tsn).

At the hearing on April 23, 1970 the same city fiscal moved that Atty. Urbiztondo be authorized to
examine the prosecution witnesses under his supervision and control The trial court granted the
motion (155 tsn).

The record shows that at every hearing the provincial fiscal, the city fiscal or an assistant fiscal were
present together with the private prosecutor.

Under the foregoing circumstances, we believe that there was substantial compliance with the rule
that the criminal action should be "prosecuted under the direction and control of the fiscal" and that
"the provincial fiscal shall represent the province" in any court (Sec.4, Rule 110, Rules of Court; sec.
1683, Revised Administrative Code).

The observation of Sendaydiego's counsel, that the imposition of reclusion perpetua "could have
been the result of the undue publicity, prejudgment, bias and political interest which attended the
proceedings ", is not well-founded. The trial court's decision dispels any doubt as to its impartiality.
The evidence in the three cases is mainly documentary. The unassailable probative value of the
documents involved rather than bias and prejudice, was the decisive factor on which the trial court
anchored the judgment of conviction.

Moreover, as already adverted to, Sendaydiego's death had rendered moot the issue as to the
propriety of the imposition of reclusion perpetua. And, as will be shown later, reclusion
perpetua cannot be imposed in these cases because the crimes committed were not complex.

The other seven assigmments of error made by Sendaydiego's counsel refer to the trial court's
conclusion that Sendaydiego and Samson are guilty beyond reasonable doubt of malversation
through falsification or, specifically, that the provincial treasurer, in signing the six vouchers, evinced
"malice or fraud and that there must have been connivance between" the two.

Several lances indicate that Sendaydiego conspired with Samson. Donato N. Rosete, the assistant
provincial treasurer, testified that, contrary to the usual procedure, he affixed his initial to paragraph
3 of the vouchers after Sendaydiego had signed it. Rosete adhered to that unusual procedure
because the interested party, Samson who hand-carried the vouchers, approached Rosete after he
(Samson) had conferred with the provincial treasurer and Samson told Rosete to initial the voucher
because it was areglado na (already settled) since the treasurer had already signed the voucher (54
tsn July 3, 1969).

Rosete's testimony and affidavit confute appellant Sendaydiego's contention that the trial court erred
in finding that he signed the questioned vouchers before Rosete had placed his initial in them. After
the treasurer had signed the voucher, Rosete's duty to initial it was only ministerial (75 tsn July 3,

The bookkeeper in the treasurer's office testified that he indicated in the vouchers that the amounts
covered thereby should be paid in cash. That indication was made by means of the symbol "A-1-1"
placed at the bottom of the vouchers under the column "Account Number". The bookkeeper was in.
instructed by Samson to place that symbol Samson told him that he (Samson) had an understanding
with Treausrer Sendaydiego that the payment should be made in cas. There were instances when
the treasurer insisted on payment by check to creditors other than Juan Samson.
The cash payments were made to Samson in the inner office of the provincial treasurer where the
cashier was summoned to make the cash payments (11-12 ton July 9, 1969; p. 11, Exh. EE). As
noted by the trial court, it was unusual that the payments should be made in the treasurer's office
when that was a ministerial chore of the cashier.

The cash payments were made to Samson even if Samson had no power of attorney from the
Carried Construction Supply Co. authorizing him to receive the payments. The space in the
vouchers for the signature of the witness, who should be present when the payments were received,
was blank. The treasurer did not bother to have a witness to attest to the payments or to require the
exhibition of Samson's residence certificate.

Another apt observation of the trial court is that the forged character of the six vouchers would have
been unmasked by the supposed creditor, Carried Construction Supply Co., if the payments had
been made by means of checks. The company on receiving the checks would have returned them to
the treasurer because it knew that there was no reason to make any payments at all. The trial court
said that the cash payments prove Sendaydiego's collusion with Samson.

Sendaydiego's counsel assails the lower court's finding that there was a conspiracy between the
provincial and Samson as shown by the fact that the amounts covered by the vouchers were paid to
Samson by the cashier in the treasurer's inner office. That point was testified to by Rosete, the
assistant provincial treasurer.

The cashier, Napoleon Ulanday, would have been the beet witness on how and where the payments
were made. However, Ulanday died before the preliminary investigation was started. On May 27,
1969, after the anomalies were unearthed, he wrote a letter to the provincial , stating that he paid to
Samson the amounts covered by five vouchers in the of Salazar K. Misal and Josefina E. Pulido
(Exh. 13).

Rosete was in a position to state that the cash payments were made to Samson in the treasurers
inner office because his table was near the main door of the treasurers office or was about fifteen
meters away (18 tsn). Rosete always knew when the cashier went to the treasurers office because
the cashier was oned by means of a buzzer (long buzz), and when the cashier came out of the
treasurer's office, he would be holding the voucher (12-13 tsn).

Sendaydiego's counsel that no gross negligence can be imputed to the treasurer (malversation is a
crime which can be committed by means of dolo or culpa and the penalty in either case is the same).
This argument does not deserve serious consideration because the facts proven by the prosecution
show that he had a tieup with Samson and that he acted maliciously in signing the six questioned

The last contention put forward for Sendaydiego is that, because the trial court acquitted the auditor,
then the treasurer's exoneration follows as a matter of course. We see no merit in that contention
because the evidence for the prosecution against Sendaydiego is not the same as its evidence
against the auditor. For that reason the auditor was charged only as an accomplice, whereas, the
treasurer was charged as a principal. The auditor based his defense on the undeniable fact that the
treasurer had approved the six vouchers "for pre-audit and payment" before they were passed upon
by the auditor. In short, the auditor was misled by the treasurer's certification which the auditor
apparently assumed to have been made in good faith when in truth it was made in bad faith.

We are convinced after a minutiose examination of the documentary and oral evidence and an
unprejudiced consideration of the arguments of Sendaydiego's counsel that his criminal liability was
established beyond reasonable doubt and, therefore, the civil liability fo his estate for the amounts
malversed was duly substantial.

Samson's appeal. Samson's brief has no statement of facts. He contends that the trial court erred
in disregarding the expert testimony that his signatures on the vouchers are not his signature; in
finding that he forged the vouchers and received the proceeds thereof, and in relying on
circumstantial evidence as proof of conspiracy.

As a preliminary issue, Samson argues that Judge Eloy B. Bello should have inhibited himself "in
fairness to the accused, in the interest of justice, and as a gesture of delivadeza" because he had
conducted the preliminary investigation.

Our searching study of the recrod fails to sustain Samson's insinuation that he was prejudiced by the
fact that Judge, who conducted the preliminary investigation, was the one who tried the case and
convicted him. Judge Bello tried the case fairly. His conduct of the trial does not show that he had
already prejudged their guilt.

Section 13, Rule 112 of the Rules of court, in allowing a Court of First Instance to conduct a
preliminary investigation, does not disqualify it from trying the case after it had found probable cause
and after the fiscal, as directed by the Court, had filed the corresponding information. The rule
assumes that the Judge, who conducted the preliminary investigation, could impartially try the case
on the merits.

We cannot assume that judges as a rule are opinionated and narrow-minded insomuch that they
would invariably be iron-bound by their findings at the preliminary investigation.

The case of a Judge of the Court of First Instance, who conducts a preliminary investigation and
then tries the case on the merits, is similar to a situation where an inferior court conducts a
preliminary investigation of a grave or less grave offense falling within the concurrent jurisdiction of
the Court of First Instance and tghe inferior court. In such a case, the inferior court after terminating
the preliminary investigation is not obligated (por delivadeza) to remand the case to the Court of First
Instance for trial. The inferior court has the option to try the case on the merits (People vs. Palmon,
86 Phil. 350; Natividad vs. Robles, 87 Phil. 834; People vsw. Colicio, 88 Phil. 196). The assumption
is that the inferior court can try the case without any ingrained bias or undue prejudice.

Samson sought to prove, through Lieutenant Colonel Jose G. Fernandez, retired chief of the
Constabulary crime laboratory, a handwriting expert, that his signatures on the vouchers are not his

Fernandez found that the questioned signatures and the alleged genuine signatures (exemplars) of
Samson have fundamental differences. The expert concluded that the questioned signatures and the
exemplar signatures of Samson were not written by one and the same person (Exh. 20).

After examining the questioned and genuine signatures and analysing the evidence and contentions
of the parties, we find that the expert is correct in declaring that (as admitted by the trial court) there
are radical differences between the questioned and authentic signatures.

But the expert is in error in concluding that Samson did not forge the questioned signatures or in
implying that Samson had no hand in the writing thereof.
The truth is that Samson used two forms of signature. His supposed genuine signatures found in his
residence certificates, income tax returns and the genuine office receipt of the Carried Construction
Supply Co. are "in an arcade form or rounded form of writing". The surname Samson is encircled.

On the other hand, the questioned signatures used in Samson's transactions with the provincial
government are in angular form; his surname is not encircled, and the questioned signatures
terminate in angular and horizontal strokes.

Samson was consistent in his fakeries. Knowing that the six vouchers evidenced fictitious
transactions, he used therein his fake signature, or the signature which is different from his signature
in genuine documents. He used his forged signatures in the six fake official receipts of the Carried
Construction Supply Co., stating that the amounts covered by the six vouchers were received by him
(Exh. K-6, KK to KK-4). the expert admitted that a person may have two forms of signature (186 tsn
July 16, 1970).

Signatures may be deliberately disguised with the dishonest intention of denying the same as and
when necessary (Mehta, Identification of Handwriting and Cross Examination of Experts, pp. 4th Ed.,
1970, p. 224; Harrison, Suspect Documents 418-419).

Sendaydiego himself testified that the questioned signatures of Samson in the six vouchers were
Samson's signatures (94-99 tsn July 31, 1969).

Fernandez, the handwriting expert, declared that the questioned signatures of Samson in the
vouchers were written by only one person (264-265 tsn July 16, 1970).

The evidence conclusively proves that Samson, as the representative or collector of the supposed
creditor, Carried Construction Supply Co., hand-carried the vouchers in question to the offices of the
provincial engineer, treasurer and auditor and then back to the treasurer's office for payment. He
actually received the cash payments. Under those circumstances, Samson is presumed to be the
forger of the vouchers.

The rule is that if a person had in his possession a falsified document and be made use of it (uttered
it), taking advantage of it and profiting thereby, the presumption is that he is the material author of
the falsification. This is especially true if the use or uttering of the forged documents was so closely
connected in time with the forgery that the user or possessor may be proven to have the capacity of
committing the forgery, or to have close connection with the forgers, and therefore, had complicity in
the forgery. (U.S. vs. Castillo, 6 Phil., 453; People vs. De Lara, 45 Phil. 754; People vs. Domingo, 49
Phil. 28; People vs. Astudillo, 60 Phil. 338 People vs. Manansala, 105 Phil. 1253).

In the absence of a satisfactory explanation, one who is found in possession of a forged document
and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L-21846,
March 31, 1967, 19 SCRA 688; People vs.Caragao, L-28258, December 27, 1969, 30 SCRA 993).

Samson's use of one form of signature for his crooked transactions with the provincial government
and another form of signatures of his valid transactions or papers shows the deviousness of the
falsifications perpetrated in these cases. (Note that Sendaydiego signed the certification in the first
voucher, Exhibit K, stating that proceeds thereof were paid to

Samson but Sendaydiego did not sign the same certification in the other five forged vouchers,
Exhibits O, P, Q, R and S).
As to the question of conspiracy, the statement of Samson's on page 19 of his brief, that "the trial
court made absolutely no finding of any supposed conspiracy' between Samson and Sendaydiego,
is not correct.

We have already noted that the trial court explicitly stated that the circumstance that Sendaydiego
signed the six vouchers ahead of his assistant shows that there was "malice or fraud" on the part of
Sendaydiego and that there was conivance between Samson and Sendaydiego when the proceeds
of the vouchers were paid to Samson in Sendaydiego's inner office, instead of in the cashier's office
(p. 23, 26, Decision, Appendix to Samson's brief). The trial court said that the fact that Sendaydiego
allowed payment in cash shows "his collission with Samson (Ibid, p. 26).

Samson's contention that the trial court merely conjectured that he had received the proceeds of the
vouchers is not well taken. The trial court's finding on that point is based on very strong
circumstantial evidence (assuming that it was not proven that Samson signed the vouchers).

Samson vehemently argues that there is no evidence that the total sum of P57,048. 23 paid under
the six vouchers "was really misappropriated". He asserts that the six vouchers are genuine
(although he contends that his signatures thereon are forgeries) and that there is no proof that the
amounts covered thereby were not paid for the construction materials shown in the six vouchers
were never delivered by the company (Exh. HH).

These contentions appear to be untenable in thelight of the declaration of Jabanes, the assistant
manager of Carried Construction Supply Co., the alleged supplier, that the materials shown in the six
vouchers were never delivered by the company (Exh. HH).

And Leticia Sevilleja (wife of the provincial engineer), who was employed as cashier of the carried
Construction Supply Co., denied that Samson turned over to the company the proceeds of the six
vouchers which he was supposed to have collected for the company from Sendaydiego. The six
vouchers appear to be fake principally because they evidence fictitious sales of construction

Under the said circumstances, it cannot be contended that there was no malversation after
Sendaydiego admtte that Samson acknowledged in the six vouchers that he received from
Treasurer Sendaydiego the total sum of P57,048.23.

The assertion of Samson's counsel on pgae 29 of his brief, that the finding as to his guilt is based on
a shaky foundation or is predicated on circumstances which wre not proven, is not correct.

Recapitulations. In resume, it appears that the provincial treasurer wants to base his exculpation
on his belief that in the six vouchers the signatures of Samson and the officials in the provincial
engineer's office appeared to be genuine and on the fact that the auditor had approved the
vouchers. The tresurer claimed that he acted in good faith in approving the payments of the
proceeds of the vouchers to Samson as the representative of the supplier, Carried Construction Co.

On the other hand, Samson, by impugning his signatures in the vouchers, denied that he received
the said amounts from the cashier of the treasurer's office.

These conflicting versions of the treasurer and Samson have to be resolved in the light of the
inexpugnable fact that Samson had hand-carried the voucehrs and followed up their processing in
the offices of the provicial government the construction materials described in the six vouchers and
denied having received from Samson the prices of the alleged sales.
The result is the Samson's denial of his signatures in the six vouchers and in the six receipts (Exh.
K-6 and KK to KK-4) and the provicial treasurer's pretension of having acted in good faith or having
committed an honest mistake have to be disbelieved.

The unavoidable conclusion is that Sendaydiego and Samson were in cahoots to defraud the
provincial government and to camouflage the defraudation by means of the six vouchers which have
some genuine features and which appear to be extrinsically authentic but which were intrinsically

Penalties. The trial court and the assumed that three complex crimes of malversation through
falsification of public documents were committed in this case. That assumption is wrong.

The crimes committed in these three cases are not complex. Separate crimes of falsification and
malversation were committed. These are not cases where the execution of a single act constitutes
two grave or less grave felonies or where the falsification was used as a means to commit

In the six vouchers the falsification was used to conceal the malversation. It is settled that if the
falsification was resorted to for the purpose of hiding the malversation, the falsification and
malversation are separate offenses (People vs. Cid, 66 Phil 354; People vs. Villanueva, 58 Phil. 671;
People vs. Geralde 52 Phil. 1000; People vs. Regis, 67 Phil. 43).

In the Regis case, supra where the modus operandi is similar to the instant cases, the municipal
treasurer made it appear in two official payrolls dated April .30 and May 2, 1931 that some persons
worked as laborers in a certain street project at Pinamungahan, Cebu. In that way, the two amounts
covered by the payrolls, P473.70 and P271.60, were appropriated and taken from the municipal
funds. As a matter of fact, no such work was done in the said street project and the persons
mentioned in both payrolls had not performed any labor.

It was held in the Regis case, that the falsification and malversation did not constitute a complex
crime because the falsifications were not necessary means for the co on of the malversations. Each
falsification and each malversation constituted independent offenses which must be punished

The municipal treasurer was convicted of two falsifications and two malversations. Four distinct
penalties were imposed.

In the instant cases, the provincial , as the custodian than of the money forming part of the road and
bridge could have malversed or misappropriated it without falsifiying any voucher. The falsification
was used as a device to prevent detection of the malversation.

The falsifications cannot be regarded as constituting one continuing offense impelled by a single
criminal impulse.

Each falsification of a voucher constitutes one crime. The falsification of six vouchers constitutes six
separate or distinct offenses (People vs. Madrigal-Gonzales, 117 Phil. 956).

And each misappropriation as evidenced by a provincial voucher constitutes a separate crimes of

malversation were committed. Appellant Samson is a co-principal in each of the said twelve
As already stated, he is presumed to be the author of the falsification because he was in possession
of the forged vouchers and he used them in order to receive public monies from the provincial

He is a co-principal in the six crimes of malversation because he conspired with the provincial
treasurer in committing those offenses. The trial court correctly ruled that a private person conspiring
with an accountable public officer in committing malversation is also guilty of malversation (People
vs. Rodis, 105 Phil. 1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato and Lustre, 37 Phil. 359; U.S.
vs. Dowdell, 11 Phil. 4; People vs. Caluag, 94 Phil. 457).

Note that a different rule prevails with respect to a stranger taking part in the commission of parricide
or qualified theft. In such cases, the stranger is not guilty of parricide or qualfied theft but only of
murder or homicide, as the case may be, and simple theft, by reason of paragraph 3, article 62 of
the Revised Penal Code (People vs. Patricio, 46 Phil. 245).

Falsification of a public document committed by a private person is punished in article 172(1) of the
Revised Penal Code by prision correccional in its medium and maximum periods and a fine of not
more than P5,000.

For the malversation of the sum of P5,187.28 and P4,501.38, respectively covered by vouchers Nos.
11869 and 11872 (Exh. P and S), the penalty provided in paragraph 2 of article of the Revised Penal
Code is prision mayorminimum and medium.

For the malversation of the sums of P6,290.60 andP9,769.64, respectively covered by vouchers
Nos. 1187 and11871 (Exh. Q and R) the penalty provided in paragraph 3 of article 217 is prision
mayor maximum to reclusion temporal minimum.

For the malversation of the sums of P16,727.52 and 10995 (Exh. K and O), the penalty provided in
paragraph 4 of article 217 is reclusion temporal medium and maximum.

In each of the malversation cases, a fine equal to the amount malversed should be added to the
imprisonment penalty.

In the twelve cases the penalty should be imposed in the medium peiod since there are no modifying
circumstances (Arts. 64[1] and 685, Revised Penal Code). Samson is entitled to an indeterminate

WHEREFORE, Samson is convicted of six crimes of falsification of a public document and six crimes
of malversation.

In lieu of the penalties imposed by the trial court, he is sentenced to the following penalties:

For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S), Samson is sentenced to
an indeterminate penalty of two (2) years of prison correccional minimum, as minimum, to four (4)
years of prision correccionalmedium, as maximum, and to pay a fine of three thousand pesos.

For the malversation of the sum of P16,727.52 covered by voucher No. 10724 (Exh. K), Samson is
sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum,
to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the amount of
P16,727.52, and to indemnify the province of Pangasinan in the same amount (Criminal Case NO.
23349, L-33252).
For the malversation of the sum of P14,571.81 covered by voucher No. 11995 (Exh. O), Samson is
sentenced to an indeterminate penalty of twelve (12) years of prision mayor maximum, as minimum,
to seventeen (17) years of reclusion temporal medium, as maximum; to pay a fine in the sum of
P14,571.81, and to indemnify the province of Pangasinan in the same amount (Criminal Case No.
23351, L-33254).

For the malversation of the sum of P6,290.60 covered by voucher No. 11870 (Exh. Q), Samson is
sentenced to an indertiminate penalty of nine (9) years of prision mayor medium, as minimum, to
thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60, and to
indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P9,769.64 covered by voucher No. 11871 (Exh. R), Samson is
sentenced to an indeterminate penalty of nine (9) years of prision mayor medium, as minimum, to
thirteen (13) years of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64, and to
indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P5,187.28, covered by voucher No. 11869 (Exh. P), Samson is
sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as
minimum, to eight (8) of prision mayor minimum, as maximum; to pay a fine of P5,187.28, and to
indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

For the malversation of the sum of P4,501.38 covered by voucher no. 11872 (Exh. S), Samson is
sentenced to an indeterminate penalty of five (5) years of prision correccional maximum, as
minimum, to eight (8) years of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and
to indemnify the province of Pangasinan in the same amount (Criminal Case No. 23350, L-33253).

In the service of the twelve penalties meted to Samson, the threefold limit provided for in article 70 of
the Revised Penal Code should be observed (People vs. Escares, 102 Phil. 677), meaning that the
maximum penalty that he should serve is three times the indeterminate sentence of twelve (12)
years to seventeen (17) years, the severest penalty imposed on him, or thirty-six (36) years to fifty-
one (51) years (see People vs. Peas, 68 Phil. 533).

The maximum duration of his sentences should not exceed forty (40) years (Penultimate par. of art.
70; People vs. Alisub, 69 Phil. 362; People vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil.

The estate of the late Licerio P. Sendaydiego is ordered to indemnify the province of Pangasinan in
the sum of P57,048.23.

Samson and the said estate are sojidarily liable for the said indemnity (Art. 110, Revised Penal
Code). Samson should pay one-half of the costs.

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,



At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc.,
fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at
around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]
at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain
block, when suddenly, the bolt or pin which was merely inserted to connect the chain block
with the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall
down to the basement of the elevator core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2) companions who luckily jumped out for

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then
on board and performing work, fell. And the falling of the [p]latform was due to the removal or
getting loose of the pin which was merely inserted to the connecting points of the chain block
and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widows prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorneys fees, plus the costs of suit.


On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:









Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law are prima facieevidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law
to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report, such
as the summary of the statements of the parties based on their sworn statements (which
were annexed to the Report) as well as the latter, having been included in the first purpose of
the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been
said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been made
is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be circumstantially relevant as to
the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved
that certain utterances were made (but not their truth), was effectively removed from the
ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does
away with the testimony in open court of the officer who made the official record, considers
the matter as an exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The underlying
reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon
v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be found devoting
the greater part of their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in consequence.
For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence,
Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and circumstances of each case
may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify
on his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report
was inadmissible since the aforementioned third requisite was not satisfied. The statements
given by the sources of information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very least, they were under a duty to give
the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3

In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juegos remains at the morgue,12 making the latters death beyond dispute. PO3
Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it
was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to the
police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally
not admissible.19

Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for
specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise
a presumption, or at least permit an inference of negligence on the part of the defendant, or
some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in
the injury was such as in the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence, or, as sometimes
stated, reasonable evidence, in the absence of explanation by the defendant, that the injury
arose from or was caused by the defendants want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of
the instrumentality which causes the injury either knows the cause of the accident or has the
best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore
is compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrine
permits is grounded upon the fact that the chief evidence of the true cause, whether culpable
or innocent, is practically accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule
of necessity, in that it proceeds on the theory that under the peculiar circumstances in which
the doctrine is applicable, it is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendants negligence is beyond plaintiffs power.
Accordingly, some court add to the three prerequisites for the application of the res ipsa
loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge as to the cause of
the accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellees husband fell down from the 14th floor of a building to the
basement while he was working with appellants construction project, resulting to his death.
The construction site is within the exclusive control and management of appellant. It has a
safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would occur
therein are peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is
a rule of necessity and it applies where evidence is absent or not readily available, provided
the following requisites are present: (1) the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary action or contribution on the part of the
person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while performing
work in a construction site unless someone is negligent[;] thus, the first requisite for the
application of the rule of res ipsa loquitur is present. As explained earlier, the construction
site with all its paraphernalia and human resources that likely caused the injury is under the
exclusive control and management of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the appellees deceased husband[;] thus[,] the
last requisite is also present. All the requisites for the application of the rule of res ipsa
loquitur are present, thus a reasonable presumption or inference of appellants negligence
arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established. 1wphi1.nt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabros sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioners employees, also assails
the same statement for being hearsay.

Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses
his own language in writing the affiants statements which may either be omitted or misunderstood
by the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care any
more than private respondent can use it to prove the cause of her husbands death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer
damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all other liabilities of the employer to
the employee, his dependents or anyone otherwise entitled to receive damages on behalf of
the employee or his dependents. The payment of compensation under this Title shall not bar
the recovery of benefits as provided for in Section 699 of the Revised Administrative Code,
Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as
amended, and other laws whose benefits are administered by the System or by other
agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:

Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude all
other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of
the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case of
death have a right of selection or choice of action between availing themselves of the
workers right under the Workmens Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and exemplary) from the employers by
virtue of the negligence or fault of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation under the Workmens
Compensation Act and sue in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA
442, ruled that an injured worker has a choice of either to recover from the employer the
fixed amounts set by the Workmens Compensation Act or to prosecute an ordinary civil
action against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmens Compensation
Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated
May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely
Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices
and claims for compensation to the Regional Office No. 1 of the then Department of Labor
and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez
whose heirs decided that they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the claims were filed under the Workmens
Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by
Philex, and which report was forwarded by the Director of Mines to then Executive Secretary
Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular
court because they became cognizant of the fact that Philex has been remiss in its
contractual obligations with the deceased miners only after receiving compensation under
the Act. Had petitioners been aware of said violation of government rules and regulations by
Philex, and of its negligence, they would not have sought redress under the Workmens
Compensation Commission which awarded a lesser amount for compensation. The choice of
the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it
was not an intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens Compensation Act should be
deducted from the damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the
Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmens Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the Workmens Compensation Act
or the provisions of the Civil Code, subject to the consequence that the choice of one remedy
will exclude the other and that the acceptance of compensation under the remedy chosen
will preclude a claim for additional benefits under the other remedy. The exception is where a
claimant who has already been paid under the Workmens Compensation Act may still sue
for damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits from
the State Insurance Fund. Private respondent filed the civil complaint for damages after she received
a copy of the police investigation report and the Prosecutors Memorandum dismissing the criminal
complaint against petitioners personnel. While stating that there was no negligence attributable to
the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigators report. The appellee merely
executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not file
the complaint for "Simple Negligence Resulting to Homicide" against appellants employees.
It was the investigator who recommended the filing of said case and his supervisor referred
the same to the prosecutors office. This is a standard operating procedure for police
investigators which appellee may not have even known. This may explain why no
complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being
charged by complainant of "Simple Negligence Resulting to Homicide." It is also possible
that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who were notified
pursuant to Law waived their rights to present controverting evidence," thus there was no
reason for the public prosecutor to summon the appellee. Hence, notice of appellants
negligence cannot be imputed on appellee before she applied for death benefits under ECC
or before she received the first payment therefrom. Her using the police investigation report
to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a
copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the criminal
complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the
records this case is civil in nature." (Underscoring supplied.) Considering the foregoing, We
are more inclined to believe appellees allegation that she learned about appellants
negligence only after she applied for and received the benefits under ECC. This is a mistake
of fact that will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioners employees, the
case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the
ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits from the

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that
the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists
and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioners contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is waived.
It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the
issue when petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. In Floresca, it was the negligence of the mining corporation and
its violation of government rules and regulations. Negligence, or violation of government rules and
regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the courts
have the final say. Such a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied
in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The
police investigation report is dated November 25, 1990, 10 days after the accomplishment of the
form. Petitioner filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not aware
of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Courts ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing
private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial court'
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of
RAMOS, petitioners,

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of
their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell the difference between life
and death. In this sense, the doctor plays God on his patient's fate.1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2

Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which

overturned the decision of the Regional Trial Court, dated 30 January 1992, finding private respondents

liable for damages arising from negligence in the performance of their professional duties towards
petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A")
robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she
has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a stone
in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which indicated
she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should
undergo a "cholecystectomy" operation after examining the documents (findings from the
Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the anesthesiologist's fee and which was to be paid
after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for
the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center, was also there for moral support.
She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as
they went down from her room to the operating room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's husband,
Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival
of the doctor" even as he did his best to find somebody who will allow him to pull out his
wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the
feeling of his wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down
to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient,
heard somebody say that "Dr. Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing the patient for the operation"
(TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then saw
Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17).
Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr.
Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying
to intubate the patient. The patient's nailbed became bluish and the patient was placed in
a trendelenburg position a position where the head of the patient is placed in a
position lower than her feet which is an indication that there is a decrease of blood supply
to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos "that something wrong was . . .
happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25,
1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful
day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to what
was told to him, Rogelio reminded the doctor that the condition of his wife would not have
happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened
to the patient. The doctors explained that the patient had bronchospasm (TSN,
November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do anything. She cannot
move any part of her body. She cannot see or hear. She is living on mechanical means.
She suffered brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing constant medical attention,
with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
p. 6).

Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of

Quezon City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by
Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private
respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage
was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this Court
finds and so holds that defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the patient to
become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room. Moreover,
the hospital is liable for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For if
the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due care and prudence as the patient's
case was an elective, not an emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the latter are ordered to pay, jointly and
severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

Erlinda Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further

sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.


Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court
rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of
the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED,
and the complaint below against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with mercy.


The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received
by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the
appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with
the appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. Meanwhile, petitioners engaged the services of

another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals
had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration
had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration
cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is,
on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of
the decision as early as June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering
the Comment/Opposition, the former, for lack of merit, is hereby DENIED.


A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12
April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996.
The petition was filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:







Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness
of the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In
Comment, private respondents contend that the petition should not be given due course since the

motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed
by the appellate court for having been filed beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate
court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of
the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive
period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's
lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on
record is no notice at all. In the present case, since a copy of the decision of the appellate court was not
sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay
in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court
of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier
resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believed
that the receipt of the former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more
logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine
of res ipsa loquiturto the instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquiturdoctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself."
The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an
explanation. Where the thing which caused the injury complained of is shown to be under the

management of the defendant or his servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by
the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference of
negligence on the part of the person who controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with negligence. It is grounded in the superior logic

of ordinary human experience and on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in

conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not
create or constitute an independent or separate ground of liability. Instead, it is considered as merely

evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural

of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. In other words, mere invocation and application of the doctrine does not

dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine

may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the

absence of someone's negligence;

2. It is caused by an instrumentality within the exclusive control of the

defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff

responsible is eliminated.

In the above requisites, the fundamental element is the "control of instrumentality" which caused the
damage. Such element of control must be shown to be within the dominion of the defendant. In order to

have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation
where it is applicable, and must establish that the essential elements of the doctrine were present in a
particular incident.

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has

been applied when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in

medical negligence cases presents a question of law since it is a judicial function to determine whether a
certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician
has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine
of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence. The reason is that the general rule on the

necessity of expert testimony applies only to such matters clearly within the domain of medical science,
and not to matters that are within the common knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to

testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a

physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where
the court from its fund of common knowledge can determine the proper standard of care. Where 30

common knowledge and experience teach that a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must

do is prove a nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation, injuries sustained on a healthy part of the body

which was not under, or in the area, of treatment, removal of the wrong part of the body when another

part was intended, knocking out a tooth while a patient's jaw was under anesthetic for the removal of his

tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or

following an operation for appendicitis, among others.


Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does
not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to
the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the consequences of professional
care were not as such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure results, and the occurrence of

something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why

any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the

desired result of an operation or treatment was not accomplished. The real question, therefore, is

whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in
such operations, which, if unexplained would themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. If there was such extraneous interventions,

the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained,
the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case
for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43

where the Kansas Supreme Court in
applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission he
was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is
not rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was
under the influence of anesthetics and unconscious, and the circumstances are such that
the true explanation of event is more accessible to the defendants than to the plaintiff for
they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause
of action is stated under the doctrine of res ipsa loquitur.

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present
case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and
control of private respondents who exercised complete and exclusive control over her. At the time of
submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously,
brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the
patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common knowledge and observation,
if negligence attended the management and care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the
doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to
any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation
and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the
endotracheal intubation of the patient and thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of
Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the
process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to
disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the
pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As
will be shown hereinafter, private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the care and management of

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As
borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient. This fact was
attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's
sister-in-law, who was in the operating room right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect:


Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the


A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered

by Dra. Gutierrez?


She will be incompetent Your Honor.


Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding
the left hand of the patient and all of a sudden heard some remarks
coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx


Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on
the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand
where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr.


Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the
patient's nailbed became bluish and I saw the patient was placed in
trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that
trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease

of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not
taught as part of nursing procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully
capable of determining whether or not a patient is properly intubated, witness Herminda
Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13).
More importantly, there is no evidence that she ever auscultated the patient or that she
conducted any type of examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a
layman in the process of intubation, witness Cruz is not competent to testify on whether or not the
intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the
statements and acts of the physician and surgeon, external appearances, and manifest conditions which
are observable by any one. This is precisely allowed under the doctrine of res ipsa loquitur where the

testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may
be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render
expert testimony unnecessary. We take judicial notice of the fact that anesthesia procedures have

become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching
hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. Reviewing witness Cruz' statements, we find that the same

were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity
which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied
that she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda's trachea, to wit:


Q: In this particular case, Doctora, while you were intubating at your first
attempt (sic), you did not immediately see the trachea?


A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more
anteriorly (slightly deviated from the normal anatomy of a person) making it harder to locate and, since

Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no
evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway, prior to
the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it
appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed
to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patient's medical records and visits with the patient,
traditionally, the day before elective surgery. It includes taking the patient's medical history, review of

current drug therapy, physical examination and interpretation of laboratory data. The physical

examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. A thorough analysis of the patient's airway normally

involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central
incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental distance. Thus, 56

physical characteristics of the patient's upper airway that could make tracheal intubation difficult should
be studied. Where the need arises, as when initial assessment indicates possible problems (such as the

alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would
go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of
the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of
the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's
centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of
her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial
court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez
tried to muddle the difference between an elective surgery and an emergency surgery just so her failure
to perform the required pre-operative evaluation would escape unnoticed. In her testimony she asserted:


Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the

A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective cases
and normal cardio-pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for
the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient
only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation.
There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time
to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner
only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to
take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma
was due to bronchospasm mediated by her allergic response to the drug, Thiopental Sodium,

introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy, was due to an unpredictable drug reaction to the short-acting barbiturate. We find the

theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he
is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of
properly enlightening the court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the
anesthetic practice of Pentothal administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience gained by a specialist or expert in
the administration and use of Sodium Pentothal on patients, but only from reading certain references, to


Q: In your line of expertise on pulmonology, did you have any occasion

to use pentothal as a method of management?

A: We do it in conjunction with the anesthesiologist when they have to
intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what

you have read from books and not by your own personal application of
the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my


Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal here with
medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of
anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic
mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that
he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving
weight to Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62

regarding expert witnesses states:

Sec. 49. Opinion of expert witness. 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.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject
matter about which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above

standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly,
apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by
triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of an allergic reaction
appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order
to absolve them of any and all responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without which the result would not have occurred. An 64

injury or damage is proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission. It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the
proximate cause which triggered the chain of events leading to Erlinda's brain damage and, ultimately,
her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the
esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the first intubation
suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her
lungs Erlinda showed signs of cyanosis. As stated in the testimony of Dr. Hosaka, the lack of oxygen

became apparent only after he noticed that the nailbeds of Erlinda were already blue. However, private

respondents contend that a second intubation was executed on Erlinda and this one was successfully
done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was successful. Assuming that the endotracheal tube
finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery,
the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the
second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five
minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are
responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. Nevertheless,

ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the operation. As stated beforehand, respondent Dra.

Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to meet the contingency brought about by
the perceived anatomic variations in the patient's neck and oral area, defects which would have been
easily overcome by a prior knowledge of those variations together with a change in technique. In other

words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation,

would have had little difficulty going around the short neck and protruding teeth. Having failed to
observe common medical standards in pre-operative management and intubation, respondent Dra.
Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team.
As the so-called "captain of the ship," it is the surgeon's responsibility to see to it that those under him

perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure
to exercise the proper authority (as the "captain" of the operative team) in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it
does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital
at the same time as Erlinda's cholecystectomy, and was in fact over three hours late for the latter's
operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among
private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly

not hospital employees, presents problems in apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the
conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject the
application. This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate
grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being
able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital
asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with
the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in
Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for
those of others based on the former's responsibility under a relationship of patria potestas. Such 77

responsibility ceases when the persons or entity concerned prove that they have observed the diligence
of a good father of the family to prevent damage. In other words, while the burden of proving negligence

rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article
2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its
physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions,
private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages under Article 2176 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care
of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would
be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The
calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the
patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were
forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing
in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum
standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation
should be normally made by a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid
muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to
respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper care, not the cost of the care the family is
usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code
on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by
him as he has duly proved. The Civil Code provides:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury
suffered as a consequence of an act of negligence has been completed and that the cost can be
liquidated. However, these provisions neglect to take into account those situations, as in this case, where
the resulting injury might be continuing and possible future complications directly arising from the injury,
while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly
respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could
not, from the nature of the case, be made with certainty. In other words, temperate damages can and

should be awarded on top of actual or compensatory damages in instances where the injury is chronic
and continuing. And because of the unique nature of such cases, no incompatibility arises when both
actual and temperate damages are provided for. The reason is that these damages cover two distinct

As it would not be equitable and certainly not in the best interests of the administration of justice for
the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments
to the compensatory damages previously awarded temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take into account the cost of
proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient
who has remained in that condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it would be now much more in
step with the interests of justice if the value awarded for temperate damages would allow petitioners to
provide optimal care for their loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury suffered

by the plaintiff would have led to expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were
likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of

her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in
her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will have
to be replaced and readjusted to changes in the size of her lower limb effected by the
biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo through the years. The
replacements, changes, and adjustments will require corresponding adjustive physical
and occupational therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a reasonable

amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much
more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose
state for over fourteen years now. The burden of care has so far been heroically shouldered by her
husband and children, who, in the intervening years have been deprived of the love of a wife and a

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's
condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the
surface of the resulting moral damage because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage and injury suffered by the victim or those actually
affected by the victim's condition. The husband and the children, all petitioners in this case, will have to

live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil.
They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to
take into account their life with a comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real
one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However,
intent is immaterial in negligence cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of
preventing complications. A physician's experience with his patients would sometimes tempt him to
deviate from established community practices, and he may end a distinguished career using unorthodox
methods without incident. However, when failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure and a nexus is made between the
deviation and the injury or damage, the physician would necessarily be called to account for it. In the case
at bar, the failure to observe pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so
as to award in favor of petitioners, and solidarily against private respondents the following: 1)
P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a
monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00
each as exemplary damages and attorney's fees; and, 5) the costs of the suit.


G.R. No. 173870 April 25, 2012

OSCAR DEL CARMEN, JR., Petitioner, vs. GERONIMO BACOY, Guardian and representing the


In this Petition for Review on Certiorari,1 the registered owner of a motor vehicle challenges the
Decision2 dated July 11, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 67764 which held him
liable for damages to the heirs of the victims who were run over by the said vehicle.

Factual Antecedents

At dawn on New Years Day of 1993, Emilia Bacoy Monsalud (Emilia), along with her spouse
Leonardo Monsalud, Sr. and their daughter Glenda Monsalud, were on their way home from a
Christmas party they attended in Poblacion, Sominot, Zamboanga Del Sur. Upon reaching Purok
Paglaom in Sominot, they were run over by a Fuso passenger jeep bearing plate number UV-PEK-
600 that was being driven by Allan Maglasang (Allan). The jeep was registered in the name of
petitioner Oscar del Carmen, Jr. (Oscar Jr.) and used as a public utility vehicle plying the Molave,
Zamboanga del Sur to Sominot, Zamboanga del Sur and vice versa route.

Because of the unfortunate incident, Criminal Case No. 93-103473 for Reckless Imprudence
Resulting in Multiple Homicide was filed against Allan before the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23. In a Decision dated March 13, 1997, said court declared Allan guilty
beyond reasonable doubt of the crime charged.4

During the pendency of said criminal case, Emilias father, Geronimo Bacoy (Geronimo), in behalf of
the six minor children5 of the Monsaluds, filed Civil Case No. 96-20219,6 an independent civil action
for damages based on culpa aquiliana. Aside from Allan, also impleaded therein were his alleged
employers, namely, the spouses Oscar del Carmen, Sr. (Oscar Sr.) and Norma del Carmen
(Spouses del Carmen) and the registered owner of the jeep, their son Oscar Jr. Geronimo prayed for
the reimbursement of funeral and burial expenses, as well as the award of attorneys fees, moral and
exemplary damages resulting from the death of the three victims, and loss of net income earnings of
Emilia who was employed as a public school teacher at the time of her death.7

Defendants refused to assume civil liability for the victims deaths. Oscar Sr. averred that the
Monsaluds have no cause of action against them because he and his wife do not own the jeep and
that they were never the employers of Allan.8 For his part, Oscar Jr. claimed to be a victim himself.
He alleged that Allan and his friends9 stole his jeep while it was parked beside his drivers rented
house to take it for a joyride. Both he and a vehicle mechanic testified that the subject jeep can
easily be started by mere pushing sans the ignition key. The vehicles engine shall then run but
without any headlights on.10 And implying that this was the manner by which the vehicle was illegally
taken, Oscar Jr. submitted as part of his documentary evidence the statements11 of Jemar Alarcon
(Jemar) and Benjamin Andujar (Benjamin). The two, who were with Allan in the jeep at the time of
the accident, declared before the investigating officer that during said time, the vehicles headlights
were off. Because of this allegation, Oscar Jr. even filed before the same trial court a carnapping
case against Allan and his companions docketed as Criminal Case No. 93-10380.12 The case was,
however, dismissed for insufficiency of evidence.13

Oscar Jr. clarified that Allan was his jeep conductor and that it was the latters brother, Rodrigo
Maglasang (Rodrigo), who was employed as the driver.14 In any event, Allans employment as
conductor was already severed before the mishap occurred on January 1, 1993 since he served as
such conductor only from the first week of December until December 14, 1992.15 In support of this,
Oscar Jr. presented as witnesses Faustino Sismundo (Faustino) and Cresencio "Junior" Baobao
(Cresencio). Faustino, a resident of Molave, testified that when he boarded the jeep heading to
Sominot on December 31, 1992, it was Cresencio who was the conductor. He also believed that
Crecencio started to work as such at around December 15 or 16, 1992.16 Cresencio, for his part,
testified that he worked as Oscar Jr.s conductor from December 15, 1992 to January 1, 1993 and
that Rodrigo was his driver.17 He stated that upon learning that the jeep figured in an accident, he
never bothered to verify the news. Instead, he went to Midsalip to work there as a conductor for his
brothers vehicle, thereby terminating his employment with Oscar Jr.18

Oscar Jr. likewise testified that it was routinary that after a days trip, the jeep would be parked
beside Rodrigos rented house19 for the next early-morning operation.

Geronimo, on the other hand, averred that Allan was still Oscar Jr.s employee subsequent to
December 14, 1992. To prove this, he presented as witnesses Saturnino Jumawan (Saturnino) and
Jose Navarro (Jose). Saturnino testified that he would pay his fare to Allan every time he would
board the jeep in going to Molave and that the last time he rode the subject vehicle was on
December 23, 1992. He also claimed that immediately before January 1, 1993, Rodrigo and Allan
used to park the jeep at the yard of his house.20 Jose likewise attested that Allan was still the jeep
conductor during the said period as he had ridden the jeep many times in mid-December of 1992.21

Ruling of the Regional Trial Court

In its Decision22 dated April 17, 2000, the RTC exculpated the spouses del Carmen from civil liability
for insufficiency of evidence. However, their son Oscar Jr. was held civilly liable in a subsidiary
capacity. The RTC anchored its ruling primarily on the principle of res ipsa loquitur, i.e., that a
presumption of negligence on the part of a defendant may be inferred if the thing that caused an
injury is shown to be under his management and that in the ordinary course of things, the accident
would not have happened had there been an exercise of care. Said court ratiocinated that Oscar Jr.,
as the registered owner of the jeep, managed and controlled the same through his driver Rodrigo, in
whose house the jeep was usually parked. Since both Oscar Jr. and Rodrigo were well aware that
the jeep could easily be started by a mere push even without the ignition key, they should have
taken the necessary precaution to prevent the vehicle from being used by unauthorized persons like
Allan. The RTC thus concluded that such lack of proper precaution, due care and foresight constitute
negligence making the registered owner of the vehicle civilly liable for the damage caused by the

The RTC disposed of the case as follows:

Wherefore, judgment is hereby entered in favor of the plaintiffs and against the defendants Allan
Maglasang and Oscar del Carmen, Jr. ordering

1. Defendant ALLAN MAGLASANG to pay the plaintiffs, and in case of insolvency, for
defendant OSCAR DEL CARMEN, JR., to pay the plaintiffs, the following sums:

a. 73,112.00 for their funeral and burial expenses;

b. 1,000,000.00 moral damages for the death of the late Emilia Monsalud;

c. 250,000.00 moral damages for the death of the late Leonardo Monsalud, Sr.;
d. 250,000.00 moral damages for the death of the late Glenda Monsalud;

e. 40, 000.00, for exemplary damages;

f. 20,000.00 attorneys fees; and

g. The cost of this proceedings.

2. The dismissal of the complaint as against the spouses OSCAR DEL CARMEN SR. and


Oscar Jr. moved for reconsideration24 contending that the provision on vicarious liability of the
employer under Article 2180 of the Civil Code25 requires the existence of employer-employee
relationship and that the employee was acting within the scope of his employment when the tort
occurred. He stressed that even assuming that Allan was his employee, he was hired not as a driver
but as a conductor. Hence, Allan acted beyond the scope of his employment when he drove the

Oscar Jr. also stressed that the fact that the jeep was running without its headlights on at the time of
the accident indubitably shows that the same was stolen. He further alleged that the jeep could not
have been taken by only one person. As Rodrigo declared in Criminal Case No. 93-10380
(carnapping case), based on his experience, the jeep cannot be pushed by only one person but by
at least five people in order for it to start. This was due to the vehicles mass and the deep canal
which separates the parking area from the curved road that was obstructed by a house.26

Setting aside its earlier decision, the lower court in its Order27 dated June 21, 2000 granted the
Motion for Reconsideration and absolved Oscar Jr. from civil liability. It cited Article 103 of the
Revised Penal Code which provides that for an employer to be subsidiarily liable for the criminal acts
of his employee, the latter should have committed the same in the discharge of his duties. The court
agreed with Oscar Jr. that this condition is wanting in Allans case as he was not acting in the
discharge of his duties as a conductor when he drove the jeep.

The court also declared the doctrine of res ipsa loquitur inapplicable since the property owner cannot
be made responsible for the damages caused by his property by reason of the criminal acts of
another. It then adjudged that only Allan should bear the consequences of his criminal acts. Thus:

WHEREFORE, premises considered, the MOTION FOR

RECONSIDERATION is granted, and defendant OSCAR DEL CARMEN JR. is hereby absolved
from all civil liability arising from the felonious acts of convicted accused ALLAN MAGLASANG.


Geronimo appealed.

Ruling of the Court of Appeals

In its July 11, 2006 Decision,29 the CA granted the appeal.

In resolving the case, the CA first determined the preliminary issue of whether there was an
employer-employee relationship between Oscar Jr. and Allan at the time of the accident. It ruled in
the affirmative and gave more credence to the testimonies of Geronimos witnesses than to those of
Oscar Jr.s witnesses, Faustino and Cresencio. The CA ratiocinated that unlike the witness
presented by Geronimo, Faustino never resided in Poblacion and thus has limited knowledge of the
place. His testimony was also unreliable considering that he only rode the subject jeep twice30 during
the last two weeks of December 1992. As regards Cresencios testimony, the appellate court found it
puzzling why he appeared to have acted uninterested upon learning that the jeep was the subject of
an accident when it was his bread and butter. Said court likewise considered questionable Oscar
Jr.s asseveration that Cresencio replaced Allan as conductor when Cresencio testified that he
replaced a certain Sumagang Jr.31

With regard to the main issue, the CA adjudged Oscar Jr. liable to the heirs of the victims based on
the principle that the registered owner of a vehicle is directly and primarily responsible for the injuries
or death of third parties caused by the operation of such vehicle. It disbelieved Oscar Jr.s defense
that the jeep was stolen not only because the carnapping case filed against Allan and his
companions was dismissed but also because, given the circumstances, Oscar Jr. is deemed to have
given Allan the implied permission to use the subject vehicle. To support its conclusion, the CA cited
the following circumstances: siblings Rodrigo and Allan were both employees assigned to the said
jeep; after a days work, said vehicle would be parked just beside Rodrigos house where Allan also
lived; the jeep could easily be started even without the use of an ignition key; the said parking area
was not fenced or secured to prevent the unauthorized use of the vehicle which can be started even
without the ignition key.

The dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the instant appeal is GRANTED. The assailed Order dated 21
June 2000 of the Regional Trial Court (Branch 23), Molave, Zamboanga del Sur, in Civil Case No.
96-20,219 is SET ASIDE and a new one is hereby entered. OSCAR DEL CARMEN, Jr. and ALLAN
MAGLASANG are held primarily liable, jointly and severally, to pay plaintiffs-appellants:

1. Civil indemnity for the death of Emilia Bacoy Monsalud, Leonardo Monsalud Sr., and
Glenda Monsalud in the amount of Fifty thousand pesos (50,000.00) each or for the total
amount of One hundred fifty thousand pesos (150,000.00);

2. Temperate damages in the amount of Twenty-five Thousand Pesos (25,000.00) each for
the death of Emilia Monsalud, Leonardo Monsalud Sr., and Glenda Monsalud (collectively
the Monsaluds) or for the total amount of Seventy-five thousand pesos (75,000.00);

3. Moral damages in the amount of Fifty Thousand Pesos (50,000.00) each for the death of
the Monsaluds or for a total amount of One Hundred Fifty Thousand Pesos (150,000.00);

4. Exemplary damages of Forty Thousand Pesos (40,000.00).

No pronouncement as to costs.


As a result of the adverse judgment, Oscar Jr. filed this Petition for Review on Certiorari alleging that
the CA erred in:

1. x x x basing its conclusions and findings on speculations, surmises and conjectures;

misapprehension of facts which are in conflict with the findings of the trial court;

2. x x x declaring a question of substance not in accord with law and with the applicable
decisions of the Supreme Court;

3. x x x departing from the regular course of the judicial proceedings in the disposition of the
appeal and [in going] beyond the issues of the case.33

Oscar Jr. points out that the CA failed to consider the RTCs ruling in its June 21, 2000 Order which
was in accord with Article 2180 of the Civil Code, i.e., that the tort committed by an employee should
have been done within the scope of his assigned tasks for an employer to be held liable under
culpa aquiliana. However, the CA never touched upon this matter even if it was glaring that Allans
driving the subject vehicle was not within the scope of his previous employment as conductor.
Moreover, Oscar Jr. insists that his jeep was stolen and stresses that the liability of a registered
owner of a vehicle as to third persons, as well as the doctrine of res ipsa loquitur, should not apply to
him. He asserts that although Allan and his companions were not found to have committed the crime
of carnapping beyond reasonable doubt, it was nevertheless established that the jeep was illicitly
taken by them from a well secured area. This is considering that the vehicle was running without its
headlights on at the time of the accident, a proof that it was started without the ignition key.

Our Ruling

Petitioners own evidence casts doubt on his claim that his jeep was stolen by Allan and his alleged
cohorts. Negligence is presumed under the doctrine of res ipsa loquitur.

Oscar Jr.s core defense to release him from responsibility for the death of the Monsaluds is that his
jeep was stolen. He highlights that the unauthorized taking of the jeep from the parking area was
indeed carried out by the clandestine and concerted efforts of Allan and his five companions,
notwithstanding the obstacles surrounding the parking area and the weight of the jeep.

Notably, the carnapping case filed against Allan and his group was already dismissed by the RTC for
insufficiency of evidence. But even in this civil case and as correctly concluded by the CA, the
evidentiary standard of preponderance of evidence required was likewise not met to support Oscar
Jr.s claim that his jeep was unlawfully taken.

Two of Allans co-accused in the carnapping case, Jemar and Benjamin, declared before the police
that when Allan invited them to ride with him, he was already driving the jeep:

04. Q- On that night, on or about 11:30 oclock on December 31, 1992, where were you?

A- I went to the disco near [the] Public Market[,] Sominot, Zamboanga del Sur.

05. Q- While you were in disco place, do you know if there was an incident [that] happened?

A- No sir but when I was in the disco place, at about 3:30 at dawn more or less[,] January 1,
1993, Allan Maglasang arrived driving the jeep and he invited me to ride together with
Benjamin Andujar, Dioscoro Sol, Arniel Rezada and Joven Orot.34

04. Q- On that night, on or about 9:00 oclock in the evening more or less on December 31,
1992, where were you?

A- I went to the disco at [the] Public Market[,] Sominot, Zamboanga del Sur.

05. Q- While you were in the disco place, do you know if there was an incident [that]

A- No, sir, but when I was in the disco place, at about 3:30 at dawn more or less[,] January 1,
1993, Allan Maglasang arrive[d] driving the jeep and he invited me to ride together with
Jemar Alarcon, Dioscoro Sol, Arniel Rizada and Joven Orot.35

There were six accused in the carnapping case. If Jemar and Benjamin were fetched by Allan who
was driving the jeep, this would mean that only three men pushed the jeep contrary to Rodrigos
testimony in Criminal Case No. 93-10380 that it has to be pushed by at least five people so that it
could start without the ignition key.

On direct examination,36 Oscar Jr. was asked as to what Rodrigo, his driver who had informed him
about the accident on January 1, 1993 at around 7:00 a.m., turned over to him after the incident, viz:

Q: When Rodrigo Maglasang, your driver informed you about the accident, what did he carry
with him if any and turned over to you?

A: The OR (Official Receipt) and the CR (Certificate of Registration) Sir.

Q: How about the key of the vehicle?

A: It was not turned over, Sir.37

Assuming arguendo that Allan stole the jeep by having the same pushed by a group, the ignition key
should then be with Rodrigo as he was entrusted with the jeeps possession. Thus, at the time
Rodrigo faced his employer hours after the incident, it is reasonable to expect that the driver should
have also returned the key to the operator together with the Official Receipt and Certificate of
Registration. Notably, Rodrigo did not do so and instead, the key was allegedly handed over to the
police for reasons unexplained and not available from the records. Interestingly, Oscar Jr. never
presented Rodrigo as his witness. Neither was he able to attest on cross-examination that Allan
really stole the jeep by pushing or that the key was handed over to him by Rodrigo:

Q: On December 31, 1992, you did not know that it was Rodrigo Maglasang who gave the
key to Allan Maglasang. Is that correct?

A: I was not there. So, I do not know but he had an affidavit to show that he turned it over to
the police.

Q: What I was asking you is that, [o]n the night of December 31, 1992, when it was driven by
Allan Maglasang, you did not know that the key was voluntarily given by Rodrigo Maglasang
to Allan Maglasang?

A: I was not there.

Q: So, you could not testify on that, is that correct?

A: Yes Sir, I was not there.38

Furthermore, Oscar Jr. acknowledged the dismissal of the carnapping case, thus:

Q: Now, there was a case filed against Allan Maglasang and [his] x x x co-accused x x x
[n]amely: Benjamin Andojar, Dioscoro Sol, Joven Orot, [Jemar Azarcon] and [Arniel] Rizada,
for carnapping. Is that correct?

A: Yes Sir.

Q: That case was filed by you because you alleged that on December 31, 1992, your jeep
was carnapped by Allan Maglasang and his co-accused, the said mentioned, is that correct?

A: Yes Sir.

Q: You testified on the case in Aurora, is that correct?

A: Yes, Sir.

Q: And you could well remember that this representation is the counsel of the co-accused of
Allan Maglasang, is that correct?

A: Yes Sir.

Q: And that case for carnapping was dismissed, is that correct?

A: Yes Sir.

Q: Even the case of Allan Maglasang, was also dismissed, is that correct

A: Yes Sir.

Q: Because there was no sufficient evidence to establish that the jeep was carnapped, is that

A: Yes Sir.39

While Oscar Jr. highlights that the headlights were not on to support his claim that his jeep was
stolen, this circumstance by itself will not prove that it really was stolen. The reason why the
headlights were not on at the time of the accident was not sufficiently established during the trial.
Besides, the fact that the headlights were not on cannot be exclusively attributed to the lack of
ignition key in starting the jeep as there may be other possibilities such as electrical problems,
broken headlights, or that they were simply turned off.

Hence, sans the testimony of witnesses and other relevant evidence to support the defense of
unauthorized taking, we cannot subscribe to Oscar Jr.s claim that his jeep was stolen. The evidence
on record brings forth more questions than clear-cut answers.
Oscar Jr. alleges that the presumption of negligence under the doctrine of res ipsa loquitur (literally,
the thing speaks for itself) should not have been applied because he was vigilant in securing his
vehicle. He claims that the jeep was parked in a well secured area not remote to the watchful senses
of its driver Rodrigo.

Under the doctrine of res ipsa loquitur, "[w]here the thing that caused the injury complained of is
shown to be under the management of the defendant or his servants; and the accident, in the
ordinary course of things, would not happen if those who had management or control used proper
care, it affords reasonable evidence in the absence of a sufficient, reasonable and logical
explanation by defendant that the accident arose from or was caused by the defendants want of
care."40 Res ipsa loquitur is "merely evidentiary, a mode of proof, or a mere procedural convenience,
since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing a specific proof
of negligence."41 It "recognizes that parties may establish prima facie negligence without direct proof,
thus, it allows the principle to substitute for specific proof of negligence. It permits the plaintiff to
present along with proof of the accident, enough of the attending circumstances to invoke the
doctrine, create an inference or presumption of negligence and thereby place on the defendant the
burden of proving that there was no negligence on his part."42The doctrine is based partly on "the
theory that the defendant in charge of the instrumentality which causes the injury either knows the
cause of the accident or has the best opportunity of ascertaining it while the plaintiff has no such
knowledge, and is therefore compelled to allege negligence in general terms."43

The requisites of the doctrine of res ipsa loquitur as established by jurisprudence are as follows:

1) the accident is of a kind which does not ordinarily occur unless someone is negligent;

2) the cause of the injury was under the exclusive control of the person in charge and

3) the injury suffered must not have been due to any voluntary action or contribution on the
part of the person injured.44

The above requisites are all present in this case. First, no person just walking along the road would
suddenly be sideswiped and run over by an on-rushing vehicle unless the one in charge of the said
vehicle had been negligent. Second, the jeep which caused the injury was under the exclusive
control of Oscar Jr. as its owner. When Oscar Jr. entrusted the ignition key to Rodrigo, he had the
power to instruct him with regard to the specific restrictions of the jeeps use, including who or who
may not drive it. As he is aware that the jeep may run without the ignition key, he also has the
responsibility to park it safely and securely and to instruct his driver Rodrigo to observe the same
precaution. Lastly, there was no showing that the death of the victims was due to any voluntary
action or contribution on their part.

The aforementioned requisites having been met, there now arises a presumption of negligence
against Oscar Jr. which he could have overcome by evidence that he exercised due care and
diligence in preventing strangers from using his jeep. Unfortunately, he failed to do so.

What this Court instead finds worthy of credence is the CAs conclusion that Oscar Jr. gave his
implied permission for Allan to use the jeep. This is in view of Oscar Jr.s failure to provide solid
proof that he ensured that the parking area is well secured and that he had expressly imposed
restrictions as to the use of the jeep when he entrusted the same to his driver Rodrigo. As fittingly
inferred by the CA, the jeep could have been endorsed to Allan by his brother Rodrigo since as
already mentioned, Oscar Jr. did not give Rodrigo any specific and strict instructions on matters
regarding its use. Rodrigo therefore is deemed to have been given the absolute discretion as to the
vehicles operation, including the discretion to allow his brother Allan to use it.
The operator on record of a vehicle is primarily responsible to third persons for the deaths or injuries
consequent to its operation, regardless of whether the employee drove the registered owners
vehicle in connection with his employment.

Without disputing the factual finding of the CA that Allan was still his

employee at the time of the accident, a finding which we see no reason to disturb, Oscar Jr.
contends that Allan drove the jeep in his private capacity and thus, an employers vicarious liability
for the employees fault under Article 2180 of the Civil Code cannot apply to him.

The contention is no longer novel. In Aguilar Sr. v. Commercial Savings Bank, 45 the car of therein
respondent bank caused the death of Conrado Aguilar, Jr. while being driven by its assistant vice
president. Despite Article 2180, we still held the bank liable for damages for the accident as said
provision should defer to the settled doctrine concerning accidents involving registered motor
vehicles, i.e., that the registered owner of any vehicle, even if not used for public service, would
primarily be responsible to the public or to third persons for injuries caused the latter while the
vehicle was being driven on the highways or streets.46 We have already ratiocinated that:

The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or
that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can
be fixed on a definite individual, the registered owner. Instances are numerous where vehicles
running on public highways caused accidents or injuries to pedestrians or other vehicles without
positive identification of the owner or drivers, or with very scant means of identification. It is to
forestall these circumstances, so inconvenient or prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the determination of persons responsible for
damages or injuries caused on public highways.47

Absent the circumstance of unauthorized use48 or that the subject vehicle was stolen49 which are valid
defenses available to a registered owner, Oscar Jr. cannot escape liability for quasi-delict resulting
from his jeeps use.1wphi 1

All told and considering that the amounts of damages awarded are in accordance with prevailing
jurisprudence, the Court concurs with the findings of the CA and sustains the awards made. In
addition, pursuant to Eastern Shipping Lines, Inc. v. Court of Appeals,50 an interest of six percent
(6%) per annum on the amounts awarded shall be imposed, computed from the time the judgment of
the RTC is rendered on April 17, 2000 and twelve percent (12%) per annum on such amount upon
finality of this Decision until the payment thereof.

WHEREFORE, premises considered, the instant petition is DENIED. The Decision dated July 11,
2006 of the Court of Appeals in CA-G.R. CV No. 67764 is hereby AFFIRMED with further
MODIFICATION that an interest of six percent (6%) per annum on the amounts awarded shall be
imposed, computed from the time the judgment of the Regional Trial Court, Branch 23, Molave,
Zamboanga del Sur is rendered on April 17, 2000 and twelve percent (12%) per annum on such
amount upon finality of this Decision until the payment thereof.