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174056 February 27, 2007 The RTC ordered appellant's re-arraignment and the latter
[Formerly G.R. No. 138257] accordingly entered a plea of guilty.9 The court conducted an
inquiry to ascertain the voluntariness of appellant's plea and
THE PEOPLE OF THE PHILIPPINES, Appellee his full comprehension of the consequences thereof.
vs. Prosecution was likewise charged to establish the guilt and
ROGELIO GUMIMBA y MORADANTE alias ROWING and degree of culpability of appellant.10
RONTE ABABO (acquitted), Appellants,
In accordance with the court's directive, the prosecution
DECISION continued with the presentation of its evidence in chief. It
presented Dr. Pedrita Rosauro, the physician who conducted
the autopsy on the body of the victim, and who testified that the
TINGA, J.: victim was raped before she was killed. The examination by Dr.
Rosauro revealed that AAA sustained four (4) stab wounds in
For review before the Court is the Decision1 of the Court of front, two (2) stab wounds in her back and one (1) lacerated
Appeals (CA) dated 26 April 2006, affirming with modification wound each on her neck and on her middle upper extremity.
the Decision2 of the Regional Trial Court (RTC), Ozamiz City, Furthermore, she found 6 and 12 o'clock laceration wounds on
Branch 15,3 dated 10 March 1999, finding appellant guilty the external genital organ of the victim.11
beyond reasonable doubt of the crime of rape with homicide.
Before resting its case, the prosecution presented appellant as
In an Information4 dated 17 April 1997, appellant Rogelio witness against his co-accused Abapo. Appellant testified that
Gumimba y Morandante alias Rowing and co-accused Ronie he and Abapo raped and killed the victim. He likewise
Abapo (Abapo) were charged before the RTC, with the crime of explained that he had previously confessed to Magallano,
rape with homicide of an eight (8)-year old child, thus: Arañas and Acapulco that he alone committed the crime in the
hope that the parents of the victim, who were relatives of his,
That on or about April 8, 1997, in Barangay Pantaon, Ozamiz might take pity on him.12
City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and In his defense, Abapo testified that at the time the crime was
confederating with each other, did then and there willfully, allegedly committed, he was with his mother and three (3)
unlawfully and feloniously and by means of force, violence and siblings at the Labo River, about two (2) kilometers away from
intimidation, to wit: by then and there pinning down one [AAA], 5 Barangay Pantaon, washing their clothes.13 In support thereof,
a minor, 8 years of age, and succeeded in having carnal Abapo presented his mother Virgencita Abapo, Elisa Carreon
knowledge with her and as a result thereof she suffered 6-12 and Raymundo Orot, all of whom corroborated his alibi. 14 The
o'clock lacerated wounds of [sic] the vagina as well as fatal defense also presented witness Arañas who reiterated his
stab wounds on the different parts of her body and which were earlier testimony that appellant confessed to him that he alone
the direct cause of her death thereafter. was responsible for the raping and killing of the victim. 15
Finally, Eugenio Bucog, a teacher at Capucao Elementary
CONTRARY to Article 335 in relation with Article 249 of the School, was presented to demonstrate Abapo's good character
Revised Penal Code. when he was his student.16
On 16 May 1997, appellant and Abapo both entered a plea of On 10 March 1999, the RTC promulgated its Decision. On the
not guilty on arraignment.6 Thereafter, the case proceeded to basis of appellant's plea of guilty, the RTC found him guilty
trial with the prosecution first presenting two witnesses: (1) beyond reasonable doubt of the crime as charged. Appellant
Emelio Magallano, President of Purok I, Barangay Pantaon, was sentenced to suffer the death penalty and ordered to
Ozamiz City; and (2) Sofronio Arañas, a Civilian Volunteer indemnify the heirs of the victim in the amounts of P50,000.00
Officer (CVO) of the same barangay. as indemnity for the life of the victim, P30,000.00 as moral
damages, and costs.17 On the other hand, the trial court
acquitted Abapo on the ground that his guilt was not
Magallano and Arañas testified that at around 9 o'clock in the established beyond reasonable doubt. Except for the lone
evening of 10 April 1997, appellant went to Magallano's home testimony of appellant, the RTC held that no other evidence
and confessed to him that he alone and by himself raped and was adduced to prove the participation of Abapo. Moreover,
killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz the court a quo found that appellant's testimony implicating
City. Subsequently, Magallano accompanied appellant to the Abapo was not worthy of credence coming as it did from a
residence of Arañas where he reiterated his confession. That polluted source.18
same night, Magallano, Arañas, appellant and family members
of the witnesses proceeded to the home of Barangay Captain
Santiago Acapulco, Jr. who conducted an investigation. With the death penalty imposed on appellant, the case was
Appellant repeated his narration and confessed to the elevated to this Court on automatic review. Pursuant to this
barangay captain that he had raped and killed the victim, and Court's decision in People v. Mateo,19 the case was transferred
that he was alone when he committed the crime. As a result to the Court of Appeals.
thereof, Acapulco, Jr., in the company of the others, brought
appellant to the Ozamiz City Hall and turned him over to the On 26 April 2006, the appellate court rendered its Decision 20
police authorities.7 affirming the appellant's conviction, but with modification as to
damages awarded to the heirs of the victim. The dispositive
However, appellant manifested though counsel (before the portion of the said Decision states:
court) at the following hearing on 22 May 1997 that he would
like to change his earlier plea of not guilty to a plea of guilty. 8
1
"WHEREFORE, premises considered, the instant Appeal is 1. By using force or intimidation;
DISMISSED for lack of merit. The Decision dated March 10,
1999 of the Regional Trial Court, Branch 15, of Ozami[s] City, 2. When the woman is deprived of reason or
is hereby AFFIRMED with the MODIFICATION that the amount otherwise unconscious; and
of civil indemnity ex delicto is hereby increased from
P50,000.00 to P100,000.00, including the award of moral
damages from P30,000.00 to P50,000.00. Conformably with 3. When the woman is under twelve years of age or is
the ruling of the Supreme Court in People of the Philippines v. demented.
Efren Mateo, We refrain from entering judgment, and the
Division Clerk of Court is hereby directed to elevate the entire The crime of rape is punishable by reclusion perpetua.
records of the case to the Honorable Supreme Court for its
final disposition. xxxx
The ultimate issue is whether appellant's guilt was established There is no hard and fast rule as to how a judge may conduct a
by evidence beyond reasonable doubt. "searching inquiry," or as to the number and character of
questions he may ask the accused, or as to the earnestness
with which he may conduct it, since each case must be
It must be conceded at the outset that the trial court failed in its measured according to its individual merit.28 However, the logic
duty to conduct the prescribed "searching inquiry" into the behind the rule is that courts must proceed with caution where
voluntariness of appellant's plea of guilty and full the imposable penalty is death for the reason that the
comprehension thereof. Consequently, appellant's plea of execution of such a sentence is irrevocable and experience
guilty was made improvidently and it is rendered has shown that innocent persons have at times pleaded
inefficacious.25 Nevertheless, the Court must rule against guilty.29 An improvident plea of guilty on the part of the
appellant as the evidence on record is ample to sustain the accused when capital crimes are involved should be avoided
judgment of conviction independent from his plea of guilty. since he might be admitting his guilt before the court and thus
forfeit his life and liberty without having fully comprehended the
The crime of rape with homicide is punishable with death under meaning and import and consequences of his plea. 30
Article 335 of the Revised Penal Code, as amended by Moreover, the requirement of taking further evidence would aid
Republic Act (R.A.) No. 7659, which provides: this Court on appellate review in determining the propriety or
impropriety of the plea.31
Article 335. When and how rape is committed. - Rape is
committed by having carnal knowledge of a woman under any In the instant case, when the accused entered a plea of guilty
of the following circumstances: at his re-arraignment, it is evident that the RTC did not strictly
2
observe the requirements under Section 3, Rule 116 above. A Considering the voluntary plea of guilty of the accused[,] we
mere warning pray that the mitigating circumstance to prove his plea of guilty
be appreciated in favor of the accused. We likewise pray that
that the accused faces the supreme penalty of death is another mitigating [circumstance] of voluntary surrender be
insufficient.32 Such procedure falls short of the exacting appreciated in his favor.
guidelines in the conduct of a "searching inquiry," as follows:
Pros. Edmilao:
(1) Ascertain from the accused himself (a) how he
was brought into the custody of the law; (b) whether Considering the gravity of the crime, may we ask your Honor
he had the assistance of a competent counsel during that we will present evidence inorder [sic] that it will give also
the custodial and preliminary investigations; and (c) justice to the victim.
under what conditions he was detained and
interrogated during the investigations. This is intended Court:
to rule out the possibility that the accused has been
coerced or placed under a state of duress either by
actual threats of physical harm coming from Present evidence to prove gravity of the crime.
malevolent quarters or simply because of the judge's
intimidating robes. Pros. Edmilao:
(2) Ask the defense counsel a series of questions as Our first witness is the ABC president.
to whether he had conferred with, and completely
explained to, the accused the meaning and Court:
consequences of a plea of guilty.
xxxx
(5) Inquire if the accused knows the crime with which
he is charged and to fully explain to him the elements
of the crime which is the basis of his indictment. (The witness after having administered an oath, took the
Failure of the court to do so would constitute a witness stand and declared that he is:
violation of his fundamental right to be informed of the
precise nature of the accusation against him and a ROGELIO GUMIMBA
denial of his right to due process.
20 years old
(6) All questions posed to the accused should be in a
language known and understood by the latter.
Single
3
The court will allow the prosecutor or the defense to profound You stated that you pushed her and even tied her hand and
[sic] question [sic] on the matter and the accused understand raped her and stabbed her, were you the one alone [sic]?
[sic] and fully comprehend [sic] the consequence of his plea of
guilty. Atty. Anonat:
xxxx Objection…
Q Mr. Rogelio Gumimba[,] are you the same accused in this Sustained.
case in Crim. Case No. RTC 2074?
Court:
A Yes, sir.
Q When you said you raped her, you mean you inserted your
Q Now the victim in this case is [AAA], a minor, 8 years of penis inside the vagina of [AAA]?
age[.] Since you have admitted this in what particular place
wherein [sic] you raped and slew [AAA]?
A No, Your Honor.
A Purok Pantaon, Ozamiz City.
Q When you said you raped her, what do you mean?
Q How far is that place wherein you slew and raped [AAA] from
her house? A I was drank [sic] at that time.
A Very near, sir. Q And you said you tied [AAA], what did you use in tying her?
Q Was it committed inside or outside the house? A I tied both her hands.
Q In what particular place of the house[:] in front, at the side or A In front of her.
at the back?
Q After tying her [,] what did you do to her?
A At the back of the house of the victim.
A After that I went home.
Q Will you please tell the court, how did you do it, will you
please narrate. Q You did not stab [AAA]?
A I raped her by tying her hand, then I killed her. A I stabbed her, Your Honor.
Q Before you raped and killed [AAA], where did you get her? Q What weapon did you use in stabbing her?
Q In committing the crime, were you alone? Q You mean you were bringing [a] long bolo at that time?
Pros. Edmilao: A I could not count how many stab wounds I inflicted to [sic]
her.
4
Q But you will agree that you have stabbed her many times? Q If you are standing and [AAA] is also standing side by side
with you, up to what part of your body is the height of [AAA]?
A I could no longer count how many stab wounds, Your Honor.
A Up to my waist line.
Q When you were arraigned, you pleaded guilty, do you
understand the consequence of your pleading guilty? Atty. Cagaanan:
A I do not know Your Honor [,] the consequence. Q When you pleaded guilty [,] was it in your own free will?
Q You pleaded guilty to the offense of rape with homicide, A Yes, sir.
did you understand?
Q Were you not forced or coerced by anybody with this
A Yes, Your Honor, I understand. crime?
Q That by your pleading guilty to the offense you will be A No, sir.34
sentenced to die?
The inefficacious plea of guilty notwithstanding, the totality of
A Yes, I am aware. the evidence for the prosecution undeniably establishes
appellant's guilt beyond reasonable doubt of the crime of rape
Q Your act of pleading guilty to the offense charged is with homicide. Apart from his testimony upon changing his plea
your voluntary will? to a plea of guilty, appellant gave a subsequent testimony
when he was presented by the prosecution as a witness
against his co-accused. This second testimony which
A Yes, I admitted that crime, but we were two. constitutes another judicial confession, replete with details and
made consciously as it was, cured the deficiencies which made
Q You mean to say there were two of you who raped [AAA]? his earlier plea of guilty improvident. The latter testimony left no
room for doubt as to the voluntariness and comprehension on
A Yes, your Honor. appellant's part of his change of plea, as well as completed his
narration of how he raped and killed the victim. The pertinent
portions of the second testimony follow, thus:
Q Before raping her, was [AAA] wearing clothes?
Pros. Jose A. Edmilao:
A Yes, Your Honor.
Q While you were gathering firewoods [sic] and Ronie Abapo
Q Was [AAA] wearing [a] panty before you raped her? was pasturing carabao, do you recall of any untoward incident
that happened?
A Yes, Your Honor.
A We raped and killed.
Q Did you remove her panty before raping her?
Q Whom did you rape and kill?
A No, You Honor, I did not.
A [AAA].
Q How did you rape [AAA]?
Q And when you said [AAA], who was then your companion,
A I have sexed [sic] with her. because you said we?
Q What do you mean by I "remedio" her, you mean you have A Ronie Abapo.
inserted your penis into the vagina of [AAA]?
xxxx
A No, Your Honor, my penis did not penetrate into the vagina
of [AAA]. Q While she [AAA] was there gathering oranges, you mean to
say you were close to the place [AAA] was?
Q Why your penis did [sic] not able to penetrate into the vagina
of [AAA]? A I, together with Ronie Abapo go [sic] near to the place [AAA]
was.
A The vagina of [AAA] is very small.
Q When you were already near at [sic] the place where [AAA]
Q Can you tell this Court how tall was [AAA]? was climbing, was she still up there at the orange tree?
A (The witness demonstrated that from the floor about 3 feet A She already came down.
high was the height of [AAA])
5
Q When she came down, what followed next then? A I removed my t-shirt.
A The two of us. Q What was then the reaction of [AAA], when you first tied her
hand?
Q You mean one hand was held by you and the other hand
was held by Ronie Abapo? A She did not cry, because we covered her mouth.
Pros. Edmilao: Q What [sic] you said that it was Ronie Abapo, what did you do
then when he was on [sic] the act of raping her?
Q You said that you were holding the hands of [AAA], how did
you do it? A I was just near to [sic] them.
A We held her hands and tied it [sic] with banana skin. Q The after Ronie Abapo, what did you do then?
Q Who tied the hands of [AAA]? A He told me that you will be the next [sic].
A Both of us. Q So when he told you that you will be the next [sic], what did
you do next?
Q After tying the hands of [AAA][,] with banana stalk where did
you place her? A I also raped her.
A We brought her to the [sic] grassy place. Q Again, when you said you raped her, you inserted your penis
into the vagina of [AAA]?
Q What happened then after [AAA] was brought to the [sic]
grassy place? A It did not enter [sic].
Q Before you killed her, what did you do to her? A It did not penetrate, because I was afraid.
A It was Ronie Abapo, then followed by me. Q You said that Ronie was the first to have sexual intercourse,
was he able to insert his penis into the vagina of [AAA]?
Q How did you rape her?
A No, sir, because he was watching, if there was person [sic]
A We undress[sed] her. around.
Q What was she wearing at that time? Q Were you able to see the penis of Ronie inserted into the
vagina of [AAA]?
A She wore a dress.
A I have [sic] not seen.
Q What about Ronie Abapo?
xxxx
A He did not undress.
Q You said that you and Ronie Abapo raped [AAA], what do
you mean or what do you understand by the word rape?
Q How did you let your penis out?
A We undressed her.
6
Q Why did you undress her? A Rowing[,] we will kill her.
A We undressed her, because we want [sic] to do something to Q And what was your reply?
her.
A I refused.
Q What is that something that you want [sic] top do to [AAA]?
Q When you refused, what did he do then?
A We raped her.
A He keep [sic] on persuading me.
Q When you said we raped her, you mean, you inserted your
penis inside the vagina of [AAA]? Q And what did eventually came [sic] to your mind?
Q But you tried to insert your penis inside the vagina? Q How did you kill her?
Q And your penis touched the vagina of [AAA]? Q What weapon you used [sic] when you killed her?
Q Only your penis was not able to enter the vagina because Q Whose [sic] the owner of that long bolo?
[AAA] is [sic] still a small girl?
A Mine, but Ronie Abapo used it.
A Yes, sir.
Q Who was the first one to use it?
Q After trying to insert your penis after Ronie Abapo, what did
you do to [AAA]?
A Ronie Abapo.
A I walked away, but he called me.
Q But the bolo was in your hands, how did [sic] he be able to
use it?
Q Who called you?
A I put it on the ground and he got it.
A Ronie Abapo.
Q You said that he made the first struck [sic]. Where was [AAA]
Q Why did he call you? first hit?
A He asked me, what to do with [AAA]. It might be that she will A In the stomach.
tell us to somebody [sic], we will kill her.
Q How many times did Ronie Abapo strike her with the use of
Q What did you do? that bolo?
Q And what was your answer? Q Aside from the stomach, where were the other pants [sic] of
[AAA] also hit?
A Because he keep [sic] on persuading me.
A At the left side.
Q How did he persuade you?
Q How about you, did you made [sic] the following stab to
A He persuaded me because we might be caught. [AAA]?
Q And what did he tell you to do? A I was hesitant to stab, but eventually I stabbed her.
7
Q What part of her body was she hit? A The wife of Panyong.
A At the stomach. Q In the reporting [sic] this matter[,] were you together with
Ronie Abapo telling these persons that you raped [AAA]?
Q Do you mean to say that you also got the bolo from the
hands of Ronie Abapo and also stabbed [AAA]? A I was alone.
A Yes, sir. Q And did you tell her that you were two in killing and raping
with Ronie Abapo?
Q Why was [AAA] not killed, when Ronie Abapo made stabbed
[sic] on her? A No, sir.
Q Why did you stab her, when she was already dead? A According to Emilio that the mother of the victim might be
[sic] pity enough to me, because I am related to them.
A I just stabbed her, because I thought that she was still alive.
Q When you reported to these persons you have mentioned,
xxxx did you also tell them that you were together with Ronie Abapo
in killing and raping?
Q Do you know where is [sic] the bolo used in stabbing [AAA]?
A No, sir.35
A No, sir.
While the trial court found appellant's second testimony insofar
as it implicated his co-accused to be unworthy of credence,
Q After killing [AAA], where did you place the bolo? there is absolutely nothing on record which militates against its
use as basis for establishing appellant's guilt. In fact, in his
A In our place. Brief, appellant submits that he must be convicted of simple
rape alone and not rape with homicide. Thus, he admits in
Q It [sic] it there in your home? writing, albeit implicitly, that he raped the victim.
A Already taken. Convictions based on an improvident plea of guilt are set aside
only if such plea is the sole basis of the judgment. If the trial
court relied on sufficient and credible evidence to convict the
Q Who got? accused, the conviction must be sustained, because then it is
predicated not merely on the guilty plea of the accused but on
A The barangay captain. evidence proving his commission of the offense charged. 36
Thus, as we have ruled in People v. Derilo:37
Q Now, did you tell to [sic] anybody regarding the raping and
killing of [AAA] aside from here in Court? While it may be argued that appellant entered an improvident
plea of guilty when re-arraigned, we find no need, however, to
remand the case to the lower court for further reception of
A I have already told.
evidence. As a rule, this Court has set aside convictions based
on pleas of guilty in capital offenses because of improvidence
Q Who was the person whom you talked about [sic]? thereof and when such plea is the sole basis of the
condemnatory judgment. However, where the trial court
A My neighbor. receives evidence to determine precisely whether or not the
accused has erred in admitting his guilt, the manner in which
the plea of guilty is made (improvidently or not) loses legal
Q Whose [sic] the name of that neighbor?
significance, for the simple reason that the conviction is based
on evidence proving the commission by the accused of the
A Emilio Magallano. offense charged.
Q After Emilio Magallano[,] to whom did you report? Thus, even without considering the plea of guilty of appellant,
he may still be convicted if there is adequate evidence on
A Sofronio Aranas. record on which to predicate his conviction. x x x x
Q Who else? Here, the prosecution was able to establish, through the
separate testimonies of appellant, that at around 1:00 o'clock in
the afternoon of 8 April 1997, appellant was gathering firewood
A Rico Magallano. not far from the house of the victim AAA in Barangay Pantaon,
Ozamiz City. He met co-accused Ronie Abapo who was then
Q Who else? pasturing his carabao also within the vicinity of the victim's
8
home. They spotted the victim picking oranges with her three Q How many times did Ronie Abapo strike her with the use of
(3)-year old brother at the back of their house and together that bolo?
approached her from behind, tied her hands with banana skin
and dragged her to a grassy place.38 Abapo raped the victim A I cannot remember anymore.
first.39 Thereafter, appellant followed suit.40 Once they had
finished with their dastardly acts, they stabbed and killed the
victim with a long bolo which belonged to appellant. 41 Q Aside from the stomach, where were the other pants [sic] of
[AAA] also hit?
Through the testimony of the physician who conducted the
autopsy on AAA's body, it was established that the victim had 6 A At the left side.
and 12 o'clock lacerations on her external genital organ. Thus,
it is clear that the rape was consummated. Q How about you, did you made [sic] the following stab to
[AAA]?
Appellant challenges the testimonies of the witnesses
Magallano and Arañas on what appellant had confessed to or A I was hesitant to stab, but eventually I stabbed her.
told them for being hearsay. The challenge fails. The
testimonies, it should be conceded, cannot serve as a proof of Q How many times?
extrajudicial confession for an extrajudicial confession has to
be in writing, among others, to be admissible in evidence. 42
That is why the testimonies are of use in the case as A Only one.
corroborative evidence only. Such utility, however, cannot be
defeated by the hearsay rule. The testimonies covered are Q What part of her body was she hit?
independently relevant statements which are not barred by the
hearsay rule.1awphi1.net
A At the stomach.
9
SO ORDERED. purchased groceries at Unimart. At around 4:00 o'clock in the
afternoon, the family stepped out of the shopping mall and
Reynaldo proceeded to the parking lot to get his red Honda
Accord, while the rest of his family stayed behind and waited.
Immediately thereafter, the family heard an explosion coming
from the direction where Reynaldo parked his car. Appellant
and Renevie got curious and proceeded to the parking lot.
There, they saw the Honda Accord burning, with Reynaldo
lying beside the driver's seat, burning, charred and bleeding
profusely. A taxi driver named Elmer Paug (Elmer) appeared
and pulled Reynaldo out of the car. Reynaldo was then rushed
to the Cardinal Santos Medical Hospital where he eventually
died because of the severe injuries he sustained. 3 The
underlying cause of his death was Multiple Fracture & Multiple
Vascular Injuries Secondary to Blast Injury.4
1. Jessie Tan, a son of Reynaldo with Rosalinda 2. Mr. Salonga, a locksmith in Greenhills Supermarket
Fuerzas, testified that he moved to Manila from Davao whose work area is at the entrance door of the
in 1985 to study at the instance of his father Reynaldo grocery of Unimart testified that he can duplicate any
and to enable then to bring back time that had been key of any car in five (5) minutes. And that he is
lost since his father left his mother Rosalinda and the accessible to any one passing to Greenhills Shopping
latter’s children in Davao (TSN, Jan. 27, p.14); In Complex (p. 45, March 24, 1999 TSN). The Honda
1991 Reynaldo moved to their house because his Car representative on the other hand testified that the
relationship with Beverly was worsening, and to Honda Accord of the deceased has no alarm, that the
exacerbate matters, Beverly had then a lover named Honda Accord key can be duplicated without difficulty.
Rudy Pascua or Pascual, a contractor for the And the keyless entry device of the said vehicle can
resthouse of Reynaldo. Reynaldo and Beverly were be duplicated (pp. 46-47 ibid, Stipulation. Order p. 335
then constantly quarreling over money (TSN, record Vol. 1).
February 10, 1999, pp. 28-29); Jessie had heard the
name of Rolando Malibiran sometime in 1994 3. Insperctor Selverio Dollesin, the Chief of the Bomb
because one day, Reynaldo came home before Disposal Unit of the Eastern Police District, and the
dinner feeling mad since he found Rolando Malibiran Police Officer who conducted the post aftermath
inside the bedroom of Beverly at their White Plains report of the incident whose skills as an expert was
residence; Reynaldo had his gun with him at the time uncontroverted, testified that the perpetrator knew
but Malibiran ran away (TSN, January 27, 1999, pp. who the intended vicitim was and has reliable
19-21). He eventually came to learn about more information as to his position when opening the
details on Rolando Malibiran from Oswaldo Banaag, vehicle. If the intended victim does not usually drive
the family driver of Beverly who was in the house at and usually sits on the rear portion of the vehicle (p.
White Plains at the time of the incident (Ibid, p. 22). 49, April 14, 1999 TSN) Inspector Dollesin’s
One night in December of the same year (1994) conclusion states that the device (bomb) was placed
Jessie overheard Reynaldo talking to Beverly over the in front of the vehicle in between the driver’s seat and
phone, with the latter fuming mad. After the phone the front door because the perpetrator had information
conversation he asked his father what happened about the victim’s movements, otherwise he could
because the latter was already having an attack of have placed the device underneath the vehicle, in the
hypertension and his father told him that Beverly rear portion of the vehicle or in any part thereof (p. 53
threatened him and that "he, (Reynaldo) will not ibid). He testified that persons who have minimal
benetit from his money if he will continue his move for knowledge can set up the explosive in the car in five
separation" (p. 40 ibid). This threat was taped by (5) minutes (p. 65 ibid). The explosion will commence
Reynaldo in his conversation with Beverly (Exh. "B") at about 4-7 seconds (p. 66 ibid).
Jessie himself has received threat of his life over the
phone in 1989 (p. 30 ibid).
4. Elmer Paug, the taxi driver, testified that on
February 5, 1995 he was just dropping a passenger to
At the lounge at Cardinal Santos Hospital, on the day Greenhills Shopping Complex when he heard a loud
of the mishap, Jessie testified on the emotional state explosion at the parking level. Being curious of the
of his mother Rosalinda while in said Hospital; that incident he hurriedly went out to look for a parking,
she was continuously crying while she was talking to then proceeded to the area where the explosion
Jessie’s uncle. When asked where Beverly was and occurred. He saw a man wearing a shirt and short
her emotional state, he said that Beverly was also at who is about to give assistance to a man who was a
the lounge of the said hospital, sometimes she is down on the ground bloodied. Finding that the man
seated and then she would stand up and then sit could not do it on his own, Elmer rushed through to
again and then stand up again. He did not see her cry give aid. He held both arms of the victim, grabbed him
"hindi ko po syang nakitang umiyak" (pp. 52-23 ibid).
11
in the wrists and dragged him out and brought him is the legal wife, he could not see the reason why
farther to the burning car. (pp. 7 July 7, 1999 TSN). Beverly would bring a counsel when she is supposed
The man lying on the pavement has burnt fingers and to be the complainant in the case (p. 11, April 5, 2000
hair, chest bloodied and skin already sticking to TSN). He testified that after having interviewed a
Elmer’s clothes (p. 8 Ibid). He noticed two women at representative from Honda, they had set aside the
about two armlength from the car where he was. The possibility that it was a third party who used pick lock
younger woman shouted "Daddy, Daddy, kaya mo in order to have access to the Honda Accord and the
iyan". She was crying had wailing (p. 10 ibid). He said presumption is that the duplicate key or the main key
that the older woman gestured her left hand was used in opening the car. The assessment was
exclaimed in a not so loud voice "wala bang tutulong connected with the statement of Renevie that she
sa amin?" while her right hand clutched her shoulder heard the clicking of all the locks of the Honda
bag (p. 11 ibid). When asked if the older woman Accord, which she was sure of when they left the car
appears to be alarmed, Elmer testified that he cannot in the parking lot (p. 12 ibid) In 1998 they arrested
say, and said she looked normal; he did not notice her Rolando Malibiran in Candelaria Quezon, he was
crying. Neither of the two female rendered assistance fixing his owner type jeep at that time. The arresting
to drag the victim, they just followed him when he officers waited for Beverly Tan, and after thirty
pulled him out. The older woman never touched the minutes they were able to arrest Beverly Tan on the
victim. (p. 12 ibid). Considering that his Taxi is quite same place (p 8, May 31, 2000 TSN). They searched
far where the victim was lying, he flagged a taxi, and the premises of the place where they reside and
the victim was brought to Cardinal Santos Hospital found a white paper which he presumed to be "kulam"
(pp. 15-16 ibid). because there’s some oracle words inscribe in that
white piece of paper and at the bottom is written the
On cross examination, he was asked what the same of Jessie (pp. 8-9 ibid). On cross examination,
meaning of normal is, and he said "natural Parang he admitted that 70% of the information on the case
walang nangyari" It looks like nothing happened (p. 42 was given by Oswaldo Banaag through the
ibid). Her was uncertain as to whether the two persistence of the NBI which convinced him to help
females joined the deceased in the taxi cab (p. 43) as solve the case. It was disclosed to the investigating
he left. officer after he was released, that’s the only time he
gave in to the request (p. 14, may 31, 2000 TSN). As
to how the NBI operatives effected the arrest, it was
5. Police Inspector Wilson Lachica testified that he through an information from the Lucena Sub-Office (p.
was the police officer who investigated the case. In 17, Ibid).
the Cardinal Santos Hospital he was able to interview
Beverly Tan. He asked her name, address, name of
the victim, how the incident happened and who their 7. Rosalinda Fuerzas testified that her life in Makati
companions were. She answered those questions in a was "medyo magulo lnag kase nanggugulo sya sa
calm manner (p. 13, Sept. 21, 1999 TSN). As per his amin." When asked who this "siya" was, she said
observation which was told to his superiors, he has Beverly. That one day Beverly called on her and
not seen remorse on the part of the victim, (meaning harassed her, and one day she received a murder
the wife) for an investigator that is unusual. Based on letter threatening that she (Rosalinda) would be
his more than six years of experience as an around the newspaper saying that she would be
investigator, whenever a violent crime happened, killed, like what they did in the news papers, puputu-
usually those relatives and love ones appears putulin iyong mga dodo o anuman dahil mang-aagaw
hysterical, upset and restless. Her reaction at the time daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27,
according to him is not normal, considering that the 2000 TSN). She stated that her husband wanted to
victim is her husband. He interviewed persons close separate with Beverly because he found out that the
to the victim even at the wake at Paz Funeral in latter has paramour named Rudy Pascua contractor
Quezon City. He was able to interview the daughter of of Jollibee (pp. 13-14 ibid). She had never seen
the lady-accused; the other lady and family or Beverly appeared to be lonely when her husband was
relatives of the victim, the same with the driver of the then kidnapped. A telephone conversation with
lady accused. He came to know the identity of the Beverly was recorded by Reynaldo which was a
policeman linked with the lady accused, named quarrel regarding money. In the Cardinal Santos
Rolando Malibiran. He testified that he obtained the Hospital, she did not see Beverly’s appearance to be
information that he desired from the widow lonely but appeared to be a criminal, and Beverly did
nonchalantly and marked with blithe unconcern, which not cry (pp. 13-17 ibid). She mentioned the letter of
in his observation is unusual since she is supposed to Reynaldo that if something happened to him, Beverly
be the one who would diligently push through in the is the one who killed him (p. 26 Ibid; pp. 24-25, Exh.
investigation. When asked the level of interest as "D, Vol. 1-A Record).
regards accused Malibiran, witness testified that
because of the manner of the commission of the 8. Janet Pascual testified that she was able to know
crime through the use of explosives, only a trained Rolando Malibiran, because on March 1993 when she
person can do that job (pp. 15-16 ibid). was in White Plains, Beverly showed her a picture of
him (Malibiran) and said to her that he is her boy
6. Supervising Investigating Agent Reynaldo Olasco friend. Witness told her that he was handsome. She
testified that his only observation on the demeanor of was close to Beverly that she frequently stayed in
Beverly Tan is that she did not give her statement White Plains when Beverly and Reynaldo is no longer
readily without the assistance of her counsel which for living in the same roof. They played mahjong, chat
the investigator is quite irregular. Considering that she and has heard Beverly’s hurtful emotions by reason of
12
her philandering husband Reynaldo. Beverly told her happened to her, it was the doing of Malibiran and
of how she felt bad against underwear not intented for Beverly.
her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a "kumapre" who On Cross examination, she was asked whether
knows how to make "kulam" for an amount of Malibiran did it alone, she said that he has a look out
P10,000.00. That Reynaldo would just sleep and as what Malibiran told him (p. 26 ibid). When
never wake up. Witness testified that they went to confronted why she was testifying only now, she said
Quiapo to buy the needed ingredients but nothing she was bothered by her conscience. As to how did
happened (p. 14 Ibid). The accused wanted to kill she get the information of key duplication, she said
Reynaldo in a way that they would not be suspected that it was told to her by Beverly (p. 35 ibid). It was
of having planned it, and for him just to die of also disclosed that she did ask Atty. Morales for a
"bangungot". She testified that they wanted to sum of P5,000.00 for he to buy medicine.
separate their properties but it did not push through,
referring to Beverly and Reynaldo. That Beverly heard
of the house being built in Corinthian intended for 9. Oswaldo Banaag (or Banaag) testified that Beverly
Rosalinda and family. In July 1994 Malibiran told told him that she and Malibiran had a relationship (p.
witness testified that she heard this on their way to 39, April 1994 TSN). He testified that on April 10,
Batangas, it was Beverly’s birthday (p. 16 ibid). On 1994 Beverly asked him to look for a hired gunman, if
October 1994 she asked by Malibiran to convince he could not find one, he just look for a poison that
Beverly to marry him, this was asked at the time when would kill Reynaldo, ten thousand (P10,000.00) pesos
Beverly was in Germany (p. 17 ibid). was given him for this (p. 14 Ibid). In his sworn
statement he said that Beverly asked him to seek
means for Reynaldo to die. That she will pay any
When asked whether Beverly and Rolando ever got amount just for him to get out of her life. He has
married the witness testified that the two got married driven for her in going to Hilltop Police Station, Taytay
on November 8, 1994. (p. 155 Vol. 1-A records Exh. Rizal to see Rolando Malibiran. That Malibiran blames
"JJ" Certificate of Marriage). That she executed an Beverly of the reason why Reynaldo is still alive and
affidavit of corroborating witnesses for Beverly and then volunteered himself to remedy the situation, that
Malibiran to facilitate the processing of their he would seek a man that would kill Reynaldo he
exemption in obtaining marriage license requirement made an example of a man they killed and threw in
(p. 128 Ibid; Exh. "BB"). She is an employee of the Antipolo "Bangin" with Beverly, Malibiran and two
Municipality of San Juan. After getting married they other persons who appear to be policeman because
discussed how Malibiran would get inside the car of they have something budging in their waste [sic]
Reynaldo. On December of 1994, Beverly was able to which is assumed to be a gun, they went to
duplicate Reynaldo’s key at the time when they have Paombong Bulacan via Malabon. He heard that they
shopped for many things, Reynaldo asked her to bring would fetch a man in Bulacan that knows how to place
the goods to the car in the compartment as the kids a bomb in a vehicle. Near the sea they talked to a
would still shop (p. 17 ibid). After having done so, she person thereat. From Paombong they rode a banca
proceeded to a key duplicator in Virra Mall and had and went to an islet where the planning was
the key duplicated. Thereafter on the succeeding days discussed as to how much is the fee and how the
or weeks, she was able to give the duplicate to killing will be had. They ordered him to return back to
Malibiran. That they would use the grenade since the vehicle and just fetched them in Binangonan.
Malibiran has one in his house but his only problem is
how to get inside the car and place the grenade (p.
18, Oct. 11, 2000 TSN; Vide p. 35 ibid) He swore that on February 5, 1995 around 10:30 a.m.
Beverly asked one of her siblings to call Reynaldo for
them to be picked up because every Sunday, the
As to when the killing would take place, the witness family would go out for recreation. Around 12:00 pm
heard that they will do it during the baptism of the he was asked by Beverly to follow where they will go
child of Gloria, Rolando Malibiran’s sister. They chose and when they are already parked, he was instructed
that date so that they would not be suspected of to fetch Malibiran in Caltex, Katipunan near Shakeys
anything and that pictures would be taken in the and bring them to the place where Reynaldo was
baptism to reflect that Malibiran took part in the same parked. In the Caltex station he saw Malibiran with
(pp. 17-18 ibid). During Reynaldo’s internment when two persons who looked like policemen and another
asked whether Beverly looked sad, witness said that person he previously saw in Bulacan. He drove the
she did not see her sad (p. 20 ibid). On February 8, L300 Van, and brought them to the parking lot where
1995, during the wake, witness met Malibiran in a Reynaldo’s Honda Car was parked and Malibiran told
canteen in White Plains and they rode a Canter him just drove [sic] in the area and come back. At
owned by Beverly, on the road while the vehicle was around 3:00 p.m. after half an hour he saw Malibiran
cruising along Katipunan avenue near Labor Hospital, and company and I picked them up. He heard from
Malibiran told her among others that on the day he the person in Bulacan "Ayos na, siguradong malinis
placed a grenade on Reynaldo’s car he saw a security ito." Then he was asked to drive them to Hilltop Police
guard roving and so what he did was to hurriedly tie Station. He discovered the death of Reynaldo when
the wire in the grenade (p. 21 ibid) not connected with he saw and read newspaper, he called Beverly to
the wire unlike the one intended for Reynaldo which confirm this incident and he was asked to be hired
has a connection (p. 21 ibid). As far as she knows, again and drove for her. When he was in White Plains
there were four or five grenades placed. She told this already, he was asked by Beverly and Malibiran not to
secret to another friend so that in case something squeal what he knows of, otherwise, his life will just
be endangered. That Beverly and Malibiran were
13
lovers since March 1993, when they met each other in from burning (p. 11 ibid) She found out that the person who
a piggery in Marikina. There was an incident that helped them was the taxi driver, Elmer Paug.
Reynaldo saw Malibiran in their own bedroom, and
there was almost a gunshot incident, he was there That a driver of a Ford Fiera or Toyota Tamaraw of some kind
because he was asked to drive the vehicle. Beverly of delivery van boarded her dad with her mom and headed for
Tan’s source of money was from Reynaldo Tan, that Cardinal Santos Hospital. She said that if is not true that her
he (Banaag) was asked frequently by Beverly who in mom appeared unaffected or acting normal as if nothing
turn would give it to Malibiran (Exh. "y", pp. 122-125 happened. That it is likewise not true when Elmer Paug said
Vol. 1-A, Sworn Statement November 29, 1996). that he alone carried her dad’s body, and said that there was
another man who helped put her dad on the car (p. 14 ibid).
On March 29, 1996 he was no longer driving for She swore that her mom was shocked and was crying at that
Beverly because he was arrested by the Presidential time (pp. 112-115, Exh. "U" Sworn Statement of Renevie Tan).
Anti-Crime Commission for his alleged involvement in She admitted that it was only the taxi driver who pulled out his
the kidnapping of the father of the classmate of dad from the danger area to a safer place at about four (4)
Renevie Tan. He was later on acquitted (p. 16, Feb. meters, while Elmer Paug was dragging her dad, they where
20, 2001 TSN) and released from incarceration on there following him (p. 43 February 5, 2002, TSN). That she
May 7, 1997. When asked whether Jessie Tan helped touched her father when they where (p. 45 ibid). It was
him to be acquitted in the kidnapping case, he said no confirmed in her testimony that it was the taxi drivers who
(p. 16 ibid). looked for a taxi cab ( p. 46 ibid). She asked if she observed
whether her mom carried a portion of her dad’s body or arms,
On Cross examination, he was asked how many hands, legs or buttocks of her father, she said she could not
times did Jessie Tan visit him in prison, he said that it remember (p. 7-8, February 12, 2002 TSN). When asked
was Atty. Olanzo who visited him for about six times whether her mom has a shoulder bag at that time, she could
and that he saw Jessie when he was already out of not remember.
jail (pp. 24-25 ibid). He testified that there was one
incident when Reynaldo and Mabiliran almost had a She testified that her parents keep quarreling to each other
shootout in the bedroom downstairs because may be in 1988-89 and stopped in 1991. it was a once a month
Malibiran was inside the bedroom where Beverly was, quarrel (pp. 23-24 ibid). A certain Janet Pascual frequently
Reynaldo have a gun at that time bulging in his waste stayed in their house in the months of October 1994 until
[sic] (p. 40 ibid). February of 1995, and her mom’s relationship with Janet was
cordial (pp. 27-28, ibid). As regards to Malibiran, she knows
Further on Cross, he testified that sometime in June him at the month of August or September of 1994 but no
1994, he with Beverly went to Hilltop Police Station knowledge of a marriage that took place between her mom and
and fetched Malibiran and company to go to Malibiran on November of the same year (p. 30 ibid).
Paombong Bulacan, they passed by Malabon before
going to Bulacan. When they reached the bridge near Romulo Bruzo, the security guard of Tan Family at White
the sea, they rode a banca, about six of them plus the Plains testified that there was an offer of half a million to him by
one rowing the boar towards an Island. In the Island, an unknown person and a demand for him to leave the employ
there was one person waiting (p. 44-45 ibid). he of Beverly Tan and a threat to his life should he testify before
stayed there for just for about ten (10) minutes, and the Court. He testified that Banaag was a family driver of the
during that period, at about one arms length he Tan in White Plains from March 1993 until August 1994, after
overheard their conversation concerning a man to said date, he was taken by Reynaldo Tan as driver at
bring the bomb in the car. When asked who was in Winreach. He testifies that the statement of Oswaldo Banaag
the banca then, he said it was Beverly, Botong that he came over to White Plains on February 5, 1995, drove
(Malibiran), Janet and the man they picked up at the L300 Van and followed the family to Greenhills Shopping
Hilltop. He was told to return the L300 and just wait for Complex is false. Because at that time, the L300 was still
them in Binangonan, hence he rode a banca to return parked inside White Plains, it was just a concocted statement
to the bridge and then drove the L300 Van towards of Banaag because he has a grudge on Mrs. Tan as she did
Binangonan (p. 50 ibid). When asked if he knows that not help him when he was incarcerated in Camp Crame (p.47-
Malibiran is engaged in the fishing business of 48 ibid).
bangus, he had no idea (p. 45 ibid).
He was told by Banaag that they were supposed to kidnap the
DEFENSE EVIDENCE three siblings of Beverly Tan but he took pity on them because
Beverly is a nice person to him. He stated that Jessie Tan
For the defense, in opposition to the testimony of Elmer Paug, helped him to be acquitted (p. 49 ibid) and promised good job
it called to the witness stand Renevie Tan. She testified that and house to live in.
she believe that her mother (Beverly) did not kill her dad
because she was with them at the time of the incident (p. 6 As regards Janet Pascual, he testified that he had an
Feb. 5, 2002 TSN). That it is not true that they did nothing altercation with her (Janet) because there was an instruction
when his dad was lying on the ground at the time of the for him by Renevie for Janet not to let inside the house. That
incident. That her mom screamed at that time and did tried to Janet got mad at them because she is not been [sic] treated
pull her dad who was under the car that she kept going around the way Renevie’s mom did not to her. Likewise, Renevie has
to find a safer place to pull him out because the car was refused to give her P5,000.00 allowance as her mom did
burning and so they could not pick her dad without burning. before to Janet for the latter’s medicine (pp. 50-51).
Her mother tried crawling underneath the car so she can reach
him but he pulled her mom aside and pulled dad risking himself
14
On account of said incident, she made a threatening remark On Cross, he testified that has met Banaag many times
that if she will not be treated fairly and the P5,000.00 allowance because he used to deliver rejected for bangus feeds, but said
be not given to her, she will go to the Tan Brother and she will that it was only once when Banaag drove with him, that is
testify Mrs. Tan. When asked whom she was angry of Bruzo sometimes in 1994 (p. 20 ibid). he testified that Malibiran
said it was against Renevie and Atty. Morales. She was angry together with him went to Talilip, Bulacan to procure some
with the latter because she thought that Atty. Morales was fingerlings sometime in June 1995 to mid 1996 (Joint Order,
telling Renevie not to give her allowance anymore and refuse Sept. 3, 2002, p. 366 Vol. III record).
access inside the white plains (p. 51 ibid).
Virgilio Dacanilao testified that on February 5, 1995 at about
When asked if he knows Malibiran, he said that he was able to 12:00 noon he was at the residence of one Gloria Malibiran
join him twice when there was a delivery of rejected bread for Santos and from there, he saw accused Rolando Malibiran
fish feeds in Bulacan. That he saw him eight (8) times in a together with his wife and children, witness’ parents-in-law and
month in 1994 and just twice a week in the month of August, sisters-in-law. When asked who his parents-in-law is, he said
September and October of said year. (p. 52 ibid). He also saw Fernando Malibiran and Jovita Malibiran, the parents of
him on July of 1994 on the occasion of Beverly’s Birthday. Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that
they left the occasion at around 5:00pm and at that time,
That on February 5, 1994, Beverly called on him to relay to accused Malibiran, with Boy Santos and Eduardo was still
Roger to fetch the three kids in Green Hills. When asked the playing "pusoy". When asked if there was such a time that
tone of Beverly at the time of the phone call, he said the tone Malibiran left the house of Gloria Santos, he said, he did not go
was that she was scared and confused (p. 63 ibid) out of the house sir (pp. 5-7 ibid).
Tessie Luba, the caretaker of Manila Memorial Park testified On Cross examination, it was disclosed that he knows
that she was paid by Beverly to take care of the tomb of Malibiran at the time witness was still his wife, the sister of
Reynaldo and that in some points in time Jessie took over and Malibiran, that was sometime in 1988. when asked if he
later her services were not availed of anymore (p. 23, April 30, considered Malibiran to be close to him as the brother of his
2002 TSN) That she saw Beverly with Banaag on November wife, he said yes sir (p. 10 ibid). Asked if his relationship with
1996 (p. 8 ibid) and Jessie with Banaag in one occasion in him is such that he would place Malibiran in a difficult situation,
going to the tomb on November 1997 (p. 47 ibid) and in April he answered, it depends on the situation (p. 11 ibid). Witness
2001 (p. 20 ibid). was asked how long it would take to reach Unimart
Supermarket from his residence in Malanday, he estimate it to
be more or less half an hour (p. 13 ibid). He testified that no
Emily Cuevas, one of the friends of Beverly testified that Janet game was ever stop [sic] on the reason that they have to wait
Pascual is a back fighter and a traitor, that Janet tried to for Malibiran.
convince her to testify against Beverly and if witness will be
convinced, Janet will receive a big amount of money about
three (3) million from another source. Testified that it is not true Said witness testimony was corroborated by Jose Ong Santos,
that Beverly and Malibiran orchestrated or masterminded the the father of the child who was baptized on said occasion. He
death of Reynaldo, and that Janet testified because she testified that he played "pusoy" with Malibiran at around
needed money because she is sick and diabetic (p. 7, May 21, 2:00pm, until 6:30 to 7:00 pm and there was never a time that
2002 TSN). She knows such fact by heart that they are Malibiran left the table where they were playing except when
innocent and that they are good people (p. 20 ibid). he feels like peeing (p. 10 July 16, 2002 TSN). It was estimated
at abut five times, and it took him about three to five minutes
everytime he would rise to pee and return to the table. That
Victorino Felix, a police officer testified that Malibiran is a Malibiran may have left their house at around 6:30 or 7:00 in
member of the Aquarius Multi-Purpose Cooperative, a the evening on February 5, 1995 (p. 11, ibid)
cooperative that is engaged in the culture of fish particularly
"Bangus" at Laguna De Bay particularly Bagumbong,
Binangonan, Laguna. On Cross examination, he testified that the idea of baptism was
rushly scheduled, because he won in a cockfight three to four
days before the baptism of his child at about February 1 or 2 of
He testified that sometime in 1994, he together with Malibiran 1995. That amount was about P50,000.00 (pp. 20-21 ibid).
waited at Tropical Hut, Cainta for them to be picked up for Malibiran did not take any participation in the baptism nor was
Bulacan to purchase fingerlings. They were fetched by an L300 he present at the church, but was already at the reception with
Van driven by Oswaldo Banaag and they were around six or his family, for lunch. He testified that Malibiran left by call of
seven at that time that headed first to Dampalit, Malabon, nature, to pee, about four to five times and a span of five
Metro Manila to meet the owner of the fish pond, finding that minutes (p. 31 ibid).
the owner thereof was already in Bulacan they proceeded
thereat, at Taliptip, Bulacan. In said place, they left the L300
Van along the bridge, near the sea and from there they rode a Accused Rolando Malibiran in his Counter-Affidavit said that he
motor banca in going to the fingerlings ponds. He testified that does intelligence work for seven years. He doesn’t know
Oswaldo was not with them in going to the pond from Taliptip Banaag as to reckless discuss a supposed plot to kill
(pp. 11-13, Sept. 3, 2002 TSN). When asked where he was, he somebody within his hearing. That would be inconsistent with
said he drove the L300 back (p. 14 ibid). The pond was about the entire training and experience as a police officer. Especially
three kilometers from Talilip, and they were able to buy when the expertise is intelligence work. Banaag drove for them
fingerlings, loaded it in another water transport going to Laguna in June or July 1995 not in June of 1994 (for months after the
Lake from Bulacan traversing Pasig River and thereafter they death of Reynaldo) [pp. 147-152, Exh. "HH" Vol. 1-a record].
returned back to Binangonan (p. 15 ibid).
He testified that he met Banaag sometime in the last quarter of
1993 at the piggery of Beverly Tan (pp. 12-13, Oct. 8, 2002
15
TSN). He admitted that he was with Banaag using the L300 the crime of Murder in Criminal Case No. 113065-H and
Van of Beverly in one occasion, in 1994 when they purchased accused Beverly Tibo-Tan for Parricide in Criminal Case No.
fingerlings from Bulacan. They procured the same because 113066-H defined and penalized under Article 248 and Article
their cooperative was culturing "bangus" in Barangay Bombon, 246, respectively, of the Revised Penal Code, as amended, in
Binangonan, Rizal (pp. 14-15). He testified that in Bulacan, relation to Republic Act No. 7659 with the attendant
Banaag was left at the foot of the bridge where the L300 was circumstances of treachery, evident premeditation and use of
parked (p. 19 ibid) and heard that Beverly told Banaag to go explosion and sentencing both accused the supreme penalty of
back, in White Plains (p. 21, ibid). After procuring the DEATH, and ordering them to pay jointly and severally to the
fingerlings, they rode a big banca called "pituya" then they heirs of Reynaldo Tan the amount of Fifty Thousand
went back to Pritil, Binangonan. In Pritil, they waited for (P50,000.00) Pesos as indemnity for death, Eighty Thousand
Banaag (P. 26 ibid). (P80,000.00) Pesos as actual damages; Fifty Thousand
(P50,000.00) as moral damages; and to pay the costs.
He denied having met Janet Pascual on Wednesday at about
February 8, 1995 because since Tuesday (February 7, 1995) SO ORDERED.8
he was already confined in the Camp by Order of his Unit
Commander, Chief Inspector Florentin Sipin (p. 5, January 21, Appellant then appealed to this Court; the appeal was,
2003 TSN) because he was under investigation by the however, referred to the CA pursuant to People v. Mateo.9
Presidential Anti-Crime Commission. He admitted that he met
Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but
denied having intimate relations with her (p. 21 ibid). In its Decision dated November 13, 2006, the CA affirmed the
Decision of the RTC. The CA, however, took judicial notice of
Republic Act No. 9346 prohibiting the imposition of the death
He testified that he met Janet Pascual only once, on November penalty and thus reduced the penalty to reclusion perpetua.
1994, but said that they never talked (p. 12, November 12, The dispositive portion of the said Decision reads as follows:
2002 TSN). He denied having married Beverly Tan nor did he
ever requested Janet Pascual to secure a license for them to
get married. He denied having had a trip with Janet in Bulacan WHEREFORE, premises considered, the joint decision dated
and admitted that he went to Zamables once, with Beverly, kids September 23, 2003 of the Regional Trial Court, Special Court
and yaya as well as his father (p. 25, ibid), that was sometime for Heinous Crimes, Branch 156, Pasig City in Criminal Case
in 1994, before Reynaldo died. He testified that he used his No. 113065-H for Murder and Criminal Case No. 113066-H for
own vehicle with his father in going to Zamables. He denied Parricide is hereby AFFIRMED with Modification in that the
seeing Reynaldo; he said he just heard him based on his supreme penalty of death imposed on both accused-appellants
conversation with Beverly Tan which took place in the piggery is hereby reduced to RECLUSION PERPETUA.
in Marikina. In sum, the place of incidents where he managed
to meet and talk with Beverly Tan was in the piggery in SO ORDERED.10
Marikina; at Camp station in Taytay Rizal; in Bulacan when
they procured fingerlings in Binangonan; Malabon; Zambales; As manifested by the Office of the Solicitor General (OSG),
White Plains and Cainta. (pp. 30; 32; 35 ibid). Rolando did not file a Motion for Reconsideration or a Notice of
Appeal from the CA Decision.11 For all intents and purposes,
He testified that he was arrested in Candelaria Quezon on the judgment of conviction as to Rolando became final and
December 1998 (p. 11 January 21, 2003) but denied living with executory on December 14, 2006. This was confirmed by CA
Beverly Tan at the time of the arrest. He said he just saw Resolution dated January 29, 2007, which noted that "pursuant
Beverly thirty (30) minutes after his arrest in the town proper of to the report dated January 23, 2007 of the Judicial Records
Candelaria, Quezon (P. 21, ibid). He denied that he uttered the Division that no motion for reconsideration or notice of appeal
remark "its better to kill Rene since you are not benefiting from had been filed by counsel for appellant Rolando Malibiran,
him" (p. 38 ibid); never have access to grenades; never asked entry of judgment is issued against said appellant x x x." 12
Beverly Tan how he could get inside Reynaldo’s Car never
claimed to be a sharp shooter and had never went to Batangas This review shall therefore pertain only to appellant Beverly
uttering the remarks mentioned by Janet Pascual nor went to Tibo-Tan's conviction.
Batangas at the time of Beverly’s birthday.
THE REGIONAL TRIAL COURT SHOULD HAVE NOT The law, however, provides for specific exceptions to the
APPRECIATED THE TESTIMONY OF PROSECUTION hearsay rule. One is the doctrine of independently relevant
WITNESS OSWALDO BANAAG AS ITS BASIS FOR statements, where only the fact that such statements were
ESTABLISHING CONSPIRACY BETWEEN ACCUSED- made is relevant, and the truth or falsity thereof is immaterial.
APPELLANT MALIBIRAN AND ACCUSED-APPELLANT The hearsay rule does not apply; hence, the statements are
BEVERLY TAN, SUCH TESTIMONY BEING HEARSAY ON admissible as evidence. Evidence as to the making of such
SOME PARTS AND REPLETE WITH INCONSISTENCIES;14 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.22 The witness who testifies
Before proceeding to the merits of appellant's arguments, the thereto is competent because he heard the same, as this is a
Court takes note of the RTC's observation regarding matter of fact derived from his own perception, and the
appellant's stoic stance during and after the incident and her purpose is to prove either that the statement was made or the
non-presentation as witness. The RTC took this negatively tenor thereof.23
against appellant. The Court differs therefrom.
In this case, Oswaldo's testimony that he overhead a
Appellant's seeming indifference or lack of emotions cannot be conversation between Rolando and appellant that they would
categorically quantified as an indicium of her guilt. There is no fetch a man in Bulacan who knew how to place a bomb in a
hard and fast gauge for measuring a person's reaction or vehicle is admissible, if only to establish the fact that such
behavior when confronted with a startling, not to mention statement was made and the tenor thereof. Likewise, Janet
horrifying, occurrence. It has already been stated that may testify on matters not only uttered in her presence, since
witnesses of startling occurrences react differently depending these may be considered as independently relevant
upon their situation and state of mind, and there is no standard statements, but also personally conveyed to her by appellant
form of human behavioral response when one is confronted and Rolando.
with a strange, startling or frightful experience. The workings of
the human mind placed under emotional stress are
unpredictable, and people react differently — some may shout, Appellant further argues that Oswaldo's testimony to the effect
some may faint and others may be shocked into insensibility.15 that he drove the L300 van of the Tan family and brought
Rolando to the parking lot where Reynaldo’s Honda Accord
was parked, was refuted by defense witness Romulo, the
Also, appellant's failure to testify in her defense should not be security guard of the Tan family. Romulo testified that the L300
taken against her. The Court preserves the rule that an van never left White Plains on the day of the incident.24
accused has the right to decline to testify at the trial without
any inference of guilt drawn from his failure to be on the
witness stand.16 The constitutional right to be presumed While the defense may have presented Security Guard Romulo
innocent still prevails. to refute the testimony of Oswaldo, it is settled that when
credibility is in issue, the Supreme Court generally defers to the
findings of the trial court, considering that it was in a better
This notwithstanding, the totality of the circumstantial evidence position to decide the question, having heard the witnesses
presented against appellant justifies her conviction of the crime themselves and observed their deportment during trial. 25 Thus,
of Parricide. in the absence of any palpable error, this Court defers to the
trials court's impression and conclusion that, as between
Appellant claims that the circumstantial evidence proven during Oswaldo and Romulo, the former's testimony deserved more
trial only shows that there was a possibility that appellant may weight and credence.1awphi1
have conspired with Rolando, but nevertheless claims that it
came short of proving her guilt beyond reasonable doubt. 17 There is nothing on record to convince the Court to depart from
the findings of the RTC. On the contrary, the testimony of Janet
Appellant further argues that the testimony of Oswaldo was in as corroborated by Oswaldo, though circumstantial, leaves no
some parts hearsay and replete with inconsistencies. 18 doubt that appellant had in fact conspired with Rolando in
Specifically, appellant contends that the testimony of Oswaldo bringing about the death of her husband Reynaldo. As a rule of
that "he overheard a conversation between Malibiran ancient respectability now molded into tradition, circumstantial
(Rolando) and Beverly (appellant) that they will fetch a man in evidence suffices to convict, only if the following requisites
Bulacan that knows how to place a bomb in a vehicle" is concur: (a) there is more than one circumstance; (b) the facts
hearsay.19 Likewise, in her Reply Brief,20 appellant claims that from which the inferences are derived are proven; and (c) the
the testimony of Janet is hearsay. combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.26
Contrary to the claim of appellant, the testimonies of Oswaldo
and Janet are not covered by the hearsay rule. The case of the prosecution was primarily built around the
strength of the testimonies of Janet and Oswaldo. The salient
The hearsay rule states that a witness may not testify as to portions of Janet's testimony are extensively quoted
what he merely learned from others either because he was hereunder:
told, or he read or heard the same. This is derived from Section
17
Q. Anything else significant that happened in the Q. And Butch is Botong?
remaining of 1994, Ms. Pascual?
A. Botong, sir.
A. After they were married, they talked about what
they're gonna do for Rene. Q. Do you know when that binyag when supposed to
be held?
Q. Where did they discuss it?
A. The baptismal be held on February 5, 1995, sir.
A. Inside the car, Botong was asking Beverly how
would he be able to get inside the car since he Q. Why did they choose that date of the binyag?
has no key and Beverly said that she can do
something about it and so it was in the last week
of November 1994 of first week of December 1994 A. So that if a picture was taken during the baptism,
when they shopped for so many things. there would be witnesses that they were in the
baptism, they would not be suspected that they have
something to do with that.27
Q. Who is (sic) with him?
xxxx
A. Rene, Beverly and her three kids. Rene asked her
since Rene and kids would still shop, Rene asked her
to brings the goods to the car in the compartment. Q. What day of the week was this?
A. And after Beverly placed the things inside the Q. What kind of kind [sic] was duplicated?
compartment, she had with her the key, she
proceeded to a key duplicator in Virra Mall and A. The key in the new car of Rene the Honda
had the key duplicated. Accord.
Q. Why did Mr. Malibiran need the key? A. Because after Beverly had duplicated the key,
she told me that she was able to have the key
A. Because they planned, since they cannot use duplicated and she told me how she did it and she
the gun Butch said that they would use grenade told me that she will give the key to Butch.
instead because he had a grenade in his house.
But their only problem is how to get inside the Q. Did she show you the duplicated key?
car.
A. Ginanoon niya lang.
COURT:
Q. What does it looked [sic] like?
Who is Butch?
A. Iyong mahaba na malaki. Hindi ko na inano basta
A. Mr. Malibiran, your Honor. susi, nag-iisa.
Butch and Botong are one and the same person? A. None, I was just in White Plains.
Q. Did they discuss how, where and when they would A. That was December, 1994.
planted the grenade in the car of Rene?
Q. What was their decision when they will execute the
A. I heard from them that they would do it during the plan?
baptismal of the child of Gloria who is the sister of
Butch.
18
A. It will be during the baptismal of the child of Gloria Q. Why?
because Butch is one of the sponsors.28 (Emphasis
Supplied) A. Because I was told by Ate to fetch Botong.
A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and Q. When did you go in [sic] Bulacan?
JR.
A. In June 1994, sir.
Q. What car did they use?
Q. With whom?
A. Honda Accord.
A. Botong, Beverly, Janet, I and two guys in Hilltop
Q. Color? because that is the instruction of Beverly.
A. Red, sir. Q. Do you know the name of the two guys from
Hilltop?
Q. Who drived [sic]?
A. If given the chance I can recognize them but I do
A. Kuya Rene, sir. not know them by name.
Q. What part of Greenhills did they go? Q. What did you do in Bulacan?
A. The parking lot infront [sic] of Unimart, sir. A. We went to the Island near the sea.
Q. What did you do when they come [sic] to Q. What did you do at that Island?
Greenhills?
A. They talked to a person.
A. When I found out they already parked and Kuya
Rene got in I went straight to Katipunan. Q. What if you know the date [sic] all about?
19
A. As far as I remember they talked about the A. After they boarded, the man from Bulacan said,
plans about the killing of Kuya Rene.30 ano pare, malinis na paggawa nito. Then, I was
told by Botong to bring them to Hilltop.33
xxxx
Based on the foregoing, the testimonies of Janet and Oswaldo
Q. Where did they ride on Feb. 5, 1995? clearly link appellant to the planning of the crime. True, as
intimated by appellant, she may not have been at the scene of
the crime at the time of the explosion;34 but then again, if she
A. In Katipunan, sir. was, then she would have suffered the same fate as Reynaldo.
Moreover, the nature of the crime and the manner of its
Q. What did they ride? execution, i.e., via a booby trap, does not demand the physical
presence of the perpetrator at the very time of its commission.
A. L300 that I was driving, sir. In fact, the very manner in which it was carried out
necessitated prior scheming and execution for it to succeed.
Thus, appellant's absence from the actual scene of the crime
Q. Where if any did you go after picking them up? does not negate conspiracy with Rolando in plotting the death
of her husband. A conspiracy exists even if not all the parties
A. From Caltex we proceeded to Greenhills. committed the same act, but the participants performed
specific acts that indicated unity of purpose in accomplishing a
criminal design.35 Moreover, direct proof of previous agreement
Q. Why?
to commit an offense is not necessary to prove conspiracy --
conspiracy may be proven by circumstantial evidence.36
A. Because that is the instruction of Ate Beverly.
Where they were, I will drop them there.
The testimonies of Janet and Oswaldo established the
following set of circumstances which, if taken collectively, show
Q. Did you do that? the guilt of appellant: that appellant and Rolando conspired,
planned and agreed to kill Reynaldo using a grenade; that
A. Yes, sir. appellant duplicated the key to the red Honda Accord of
Reynaldo so that Rolando could gain access to the car; that
appellant thereafter gave the duplicate key to Rolando; that on
Q. Where exactly did you drop them on?
February 5, 1995, appellant told Oswaldo to follow the red
Honda Accord of Reynaldo until the latter parked the car; that
A. In the place where Kuya Rene was parked.31 appellant told Oswaldo to thereafter pick up Rolando at
Katipunan and bring the latter to where Reynaldo parked his
xxxx red Honda Accord. Reynaldo died soon after due to injuries he
sustained from an explosion caused by grenades planted in his
car.
COURT: x x x What happened while they were inside
the vehicle while you were going back to the place as
instructed by Beverly? Another notable fact is that according to the expert opinion of
Inspector Selverio Dollesin, Chief of the Bomb Disposal Unit of
the Eastern Police District, the perpetrator had information
A. After that I brought them where the car of Kuya about the victim's movements. Dollesin also observed that the
Rene was parked, Your Honor. Before they alighted, perpetrator knew his intended victim, since the grenade was
Botong asked, dito na ba?32
specifically placed in between the driver's seat and the front
door. That the perpetrator knew the victim's movements was
Atty. Rondain: further corroborated by the affidavits executed by the Tan
children, Renevie37 and Jag Carlo38 , attesting that while they
So you replied Opo, dyan po pumasok si Kuya Rene? spent their Sundays with their father, this was the only time that
they spent a Sunday in Greenhills. Only someone who had
close personal contact with Reynaldo would know his
A. After I alighted they just go [sic] around. movements, where the car would be parked, and that he was
the one who usually drove the red Honda Accord, such that it
Q. Where? was precisely positioned to ensure damage to the intended
victim.
A. In Greenhills, sir.
There is no doubt that, based on the testimony of Janet, it was
Q. Then, what happened? Rolando who planted the grenades inside the car of Reynaldo,
to wit:
A. After half an hour I saw Kuya Botong, the three
of them. Then they stopped me and the three of Q. Where did you go?
them boarded the vehicle.
A. When I was inside the Canter, Botong (Rolando)
Q. What happened? was asking me while the vehicle was moving slowly.
He asked me what happened in the funeral parlor.
20
Q. And what did you say? xxxx
A. I told him that Major Penalosa called me for an In all cases in which the law prescribes a penalty composed of
interview but I did not say anything. two indivisible penalties, the following rules shall be observed
in the application thereof:
Then were already in front of the V. Luna Hospital.
When in the commission of the deed there is present only one
COURT aggravating circumstance, the greater penalty shall be applied.
All told, this Court is convinced beyond a reasonable doubt that As to the award of moral and exemplary damages x x x. Moral
appellant is guilty of the crime as charged. Moreover, damages are awarded despite the absence of proof of mental
considering the manner in which appellant and Rolando and emotional suffering of the victim's heirs. As borne out by
planned and executed the crime, the RTC was correct in human experience, a violent death invariably and necessarily
appreciating the aggravating circumstances of treachery, brings about emotional pain and anguish on the part of the
evident premeditation, and use of explosives. Thus, appellant victim's family. If a crime is committed with an aggravating
is guilty of the crime of Parricide as provided in the Revised circumstance, either qualifying or generic, an award of
Penal Code, to wit: exemplary damages is justified under Article 2230 of the New
Civil Code. This kind of damage is intended to serve as
Article 246. Parricide- Any person who shall kill his father, deterrent to serious wrongdoings and as vindication of undue
mother, or child, whether legitimate or illegitimate, or any of his sufferings and wanton invasion of the rights of an injured, or as
ascendants, or descendants, or his spouse, shall be guilty of a punishment for those guilty of outrageous conduct. However,
parricide and shall be punished by reclusion perpetua to death. consistent with recent jurisprudence on heinous crimes where
(Emphasis Supplied) the imposable penalty is death but reduced to reclusion
perpetua pursuant to Republic Act No. 9346, the award of
moral damages should be increased from P50,000.00 to
Moreover, the Revised Penal Code provides for death as the
P75,000.00 while the award of exemplary damages should be
proper penalty:
increased from P25,000.00 to P30,000.00.
Costs de oficio. On June 4, 2007, Celia B. Romero, Director II, ERSD &
Concurrent Chief of the Records and Statistics Division of the
SO ORDERED. COMELEC issued a certification that as of even date, the
canvassing documents for all municipalities of the province of
Maguindanao in connection with the May 14, 2007 elections
were not transmitted by the Provincial Election Supervisor of
said province nor the respective Board of Canvassers.
G.R. No. 179830 December 3, 2009
22
The Commission and not just the NBOC, in the exercise of its the canvassing on May 30, 2007, despite knowledge
investigatory powers to determine existing controversies thereof when you attended the previously scheduled
created the Task Force Maguindanao, headed by but again reset canvassing of said PCOCs on May 25,
Commissioner Nicodemo Ferrer, which was tasked to conduct 2007; (c) your failure to attend the continuation of
a fact-finding investigation on the conduct of elections and hearing of the Task Force Maguindanao on June 14,
certificates of canvass from the city and municipalities in 2007, despite notice to him in open session in the
Maguindanao. hearing held on June 11, 2007, and personal service
to you of a subpoena which you duly signed on the
Respondent [petitioner] appeared before the Task Force during same date; and your failure/refusal to submit your
its June 11, 2007 fact finding activity and responded to the written explanation of your said absences which you
queries from the chair. It was during this hearing that undertook to submit on June 13, 2007 – all of these
respondent [petitioner] Bedol explained that, while in his failures on your part are violations of paragraphs (b)
custody and possession, the election paraphernalia were and (f) of Section 2, Rule 29 of COMELEC Rules of
stolen sometime on May 29, 2007, or some fifteen (15) days Procedure.
after the elections. This was the first time such an excuse was
given by the respondent [petitioner] and no written report was 2. Your unlawful assumption of custody in your office
ever filed with the Commission regarding the alleged in Maguinadanao of the municipal certificates of
loss.1avvphi1 canvass (MCOC) and other accountable election
documents of all the municipalities of Maguinadanao
Respondent [petitioner] Bedol was duly informed to be present used in the last elections of 2007, but which should
in the next scheduled investigative proceedings set for June have been delivered to the Commission on Elections
14, 2007 as the Task Force wanted to delve deeper into the in its main office in Intramuros, Manila, and your
alleged loss by propounding additional questions to Atty. Bedol admission that said accountable documents were lost
during the next scheduled proceedings, such as why he still from your said custody – these constitute violations of
had in his possession said documents which should have paragraphs (a), (c) and (d), section 2, Rule 29 of said
already been turned over to the Commission, why he did not Rules.
report to the COMELEC or to the police authorities the
purported theft, and other pertinent questions. However, 3. Your pronouncements in the media flaunting
despite actual notice in open session, Atty. Bedol failed to [disrespect to] the authority of the COMELEC over
appear, giving the impression that respondent [petitioner] you, challenging the institution to file a case against
Bedol does not give importance to this whole exercise and you in court as it is only in court that you are ready to
ignores the negative impact his attitude has on this face your accuser are violations of paragraphs (a) and
Commission. (d), Section 2, Rule 29 of said Rules.
Also respondent [petitioner] failed and refused to submit a 4. Your regaling the media (interviews in national
written explanation of his absences which he undertook to television channels, newspapers and radios) with your
submit on June 13, 2007, but was only received by this boast of possession of an armory of long firearms and
Commission belatedly on July 03, 2007. side arms, displaying in public for all to see in your
front-page colored portrait in a national broadsheet
On June 26, 2007, [petitioner] came out on national and during a television interview a shiny pistol tucked
newspapers, in an exclusive interview with the ‘Inquirer’ and in a holster at your waist in a ‘combative mode (sic)’ –
GMA-7, with a gleaming 45 caliber pistol strapped to his side, these are clear violations of paragraphs (a) and (d),
and in clear defiance of the Commission posted the challenge Section 2, Rule 29 of said Rules. (Words in brackets
by saying that ‘those that are saying that there was cheating in ours)
Maguindanao, file a case against me tomorrow, the next day.
They should file a case now and I will answer their Through the foregoing June 27, 2007 Order, petitioner was
accusations.’(Words in brackets ours) directed to appear before the COMELEC En Banc on July 3,
2007 at 10:00 o’clock in the morning to personally explain why
On June 27, 2007, the COMELEC through Task Force he should not be held in contempt for the above-mentioned
Maguindanao head, Commissioner Nicodemo T. Ferrer, issued offenses.
a Contempt Charge and Show Cause Order3 against petitioner
citing various violations of the COMELEC Rules of Procedure, On July 2, 2007, petitioner was arrested by members of the
viz: Philippine National Police on the basis of an Order of Arrest 4
issued on June 29, 2007 by the COMELEC after petitioner
You are hereby formally charged of contempt of this repeatedly failed to appear during the fact-finding proceedings
Commission for having committed during the period between before Task Force Maguindanao.
May 14, 2007, and June 26, 2007, acts in violation of specific
paragraphs of Section 2, Rule 29 of the COMELEC Rules of During the July 3, 2007 hearing, petitioner questioned the
Procedure, as follows: COMELEC’s legal basis for issuing the warrant of arrest and its
assumption of jurisdiction over the contempt charges. Upon
1. (a) Your (PES Bedol’s) failure to attend the petitioner’s motion, he was granted a period of ten (10) days
scheduled canvassing of the Provincial Certificates of within which to file the necessary pleading adducing his
Canvass (PCOC) of Maguindanao of which he (sic) is arguments and supporting authorities. The continuation of the
(sic) the Provincial Election Supervisor on May 22, hearing was set on July 17, 2007.
2007; (b) your failure to attend the reset schedule of
23
On July 17, 2007, which was beyond the ten-day period he on June 13, 2007 --- all of these failures are violations
requested, petitioner submitted an Explanation Ad Cautelam of paragraphs (b) and (f) of Section 2, Rule 29 of
with Urgent Manifestation, containing the following averments: COMELEC Rules of Procedure.
1. Respondent [petitioner] urgently manifests that he 2. The unlawful assumption of custody in the
is making a special appearance as he assails the Respondent’s office in Maguindanao of the Municipal
jurisdiction of the Honorable Commission and its Certificates of Canvass (MCOC) and other
capacity to prosecute the present case in an impartial accountable election documents of all the
and fair manner. municipalities of Maguindanao used in the last
elections of 2007, but which should have been
2. Respondent [petitioner] questions the issuance of a delivered to the Commission on Elections in its main
warrant of arrest against him. He can not be validly office in Intramuros, Manila, and Respondent’s plain
arrested or re-arrested as a witness who is being admission that said accountable documents were lost
compelled to testify in a hearing before the Honorable from his said custody --- these constitute violations of
Commission. paragraphs (a), (c) and (d), Section 2, Rule 29 of said
Rules.lavvphil
3. Respondent [petitioner] has not committed any
contemptuous acts against the Commission. He has 3. The respondent’s pronouncements in media
not committed those acts charged against him by the flaunting disrespect to the authority of the COMELEC
Commission motu proprio. (Words in brackets ours.) over him, challenging the institution to file a case
against him in court as it is supposedly only in court
that Respondent Bedol was ready to face his accuser
During the hearing on July 17, 2007, petitioner reiterated his are violations of paragraphs (a) and (d), Section 2,
objection to the jurisdiction of the COMELEC over the Rule 29 of said Rules.
contempt charges due to the absence of a complaint lodged
with the COMELEC by any private party. Petitioner’s objection
was treated as a motion to dismiss for lack of jurisdiction, 4. Regaling the public through the media (interviews
which was denied forthwith by the COMELEC. Petitioner was in national television channels, newspapers and
then required to present evidence which he refused to do. radios) with boast of possession of an armory of long
Various exhibits were then marked and presented to the firearms and side arms, displaying in public, for all to
COMELEC. However, the latter allowed petitioner to file a see in his front-page colored portrait in a national
Memorandum within a period of ten (10) days and gave him broadsheet and during a television interview, a shiny
the opportunity to attach thereto his documentary and other pistol tucked in a holster at your waist in a ‘combative
evidence. mode’ (sic) --- these are clear violations of paragraphs
(a) and (d), Section 2, Rule 29 of said Rules.
On July 31, 2007, petitioner again belatedly filed his
Memorandum5 maintaining his objection to the jurisdiction of All the foregoing constitute an exhibition of contumacious acts
the COMELEC to initiate the contempt proceedings on ground showing disrespect for the institution, of which respondent is
that the COMELEC, sitting en banc as the National Board of even a ranking official, which is clearly contemptuous of this
Canvassers for the election of senators, was performing its Commission, for which Respondent Lintang Bedol is hereby
administrative and not its quasi-judicial functions. Petitioner sentenced to suffer the penalty of imprisonment of six (6)
argued that the COMELEC, in that capacity, could not punish months and to pay a fine of One Thousand Pesos (P1,000.00).
him for contempt.
The Legal Department of the Comelec is hereby directed to
On August 7, 2007, the COMELEC En Banc rendered the first investigate and determine whether or not any election offense
assailed Resolution, the dispositive part of which reads: or crime under the Revised Penal Code has been committed
by respondent Lintang Bedol and to initiate the filing of the
necessary charge/s therefor.
WHEREFORE, considering all the foregoing, respondent Atty.
Lintang Bedol is hereby found guilty of Contempt of the
Commission for the following acts and omissions: SO ORDERED.
1. (a) The failure to attend the scheduled canvassing Aggrieved, petitioner filed a motion for reconsideration which
of the Provincial Certificates of Canvass (PCOC) of was denied by the COMELEC in the other assailed Resolution
Maguindanao of which he is the Provincial Election dated August 31, 2007.
Supervisor on May 22, 2007 (b) failure to attend the
reset schedule of the canvassing on May 30, 2007, Hence, petitioner filed before the Court the instant petition for
despite knowledge thereof when Respondent Bedol certiorari raising the following issues:
attended the previously scheduled but again reset
canvassing on May 25, 2007 (c) failure to attend the I
continuation of hearing of the Task Force
Maguindanao on June 14, 2007, despite notice to
Respondent in open session in the hearing held on WHETHER OR NOT THE COMMISSION ON ELECTIONS
June 11, 2007, and personal service to him of the HAS JURISDICTION TO INITIATE OR PROSECUTE THE
subpoena which he duly signed on the same date; the CONTEMPT PROCEEDINGS AGAINST THE PETITIONER.
failure/refusal to submit written explanation of
respondent’s absences which he undertook to submit II
24
WHETHER OR NOT THE COMMISSSION HAS ALREADY issue rules and regulations to implement the provisions of the
PREJUDGED THE CASE AGAINST THE PETITIONER IN 1987 Constitution and the Omnibus Election Code.7
VIOLATION OF HIS DUE PROCESS RIGHTS
The quasi-judicial or administrative adjudicatory power is the
III power to hear and determine questions of fact to which the
legislative policy is to apply, and to decide in accordance with
WHETHER OR NOT THE FINDINGS OF THE COMMISSION the standards laid down by the law itself in enforcing and
ON ELECTIONS, ASSUMING IT HAS JURISDICTION TO administering the same law. The Court, in Dole Philippines Inc.
PUNISH FOR CONTEMPT, ARE SUPPORTED BY v. Esteva,8 described quasi-judicial power in the following
SUBSTANTIAL, CREDIBLE AND COMPETENT EVIDENCE. manner, viz:
25
In the same vein, to withhold from the COMELEC the power to Sec. 1. xxx
punish individuals who refuse to appear during a fact-finding
investigation, despite a previous notice and order to attend, Sec. 2. Indirect Contempt. – After charge in writing has been
would render nugatory the COMELEC’s investigative power, filed with the Commission or Division, as the case may be, and
which is an essential incident to its constitutional mandate to an opportunity given to the respondent to be heard by himself
secure the conduct of honest and credible elections. In this or counsel, a person guilty of the following acts may be
case, the purpose of the investigation was however derailed punished for indirect contempt:
when petitioner obstinately refused to appear during said
hearings and to answer questions regarding the various
election documents which, he claimed, were stolen while they (a) Misbehavior of the responsible officer of the Commission in
were in his possession and custody. Undoubtedly, the the performance of his official duties or in his official
COMELEC could punish petitioner for such contumacious transactions;
refusal to attend the Task Force hearings.
(b) Disobedience of or resistance to a lawful writ, process,
Even assuming arguendo that the COMELEC was acting as a order, judgment or command of the Commission or any of its
board of canvassers at that time it required petitioner to appear Divisions, or injunction or restraining order granted by it;
before it, the Court had the occasion to rule that the powers of
the board of canvassers are not purely ministerial. The board (c) Any abuse of or any inlawful interference with the process
exercises quasi-judicial functions, such as the function and or proceedings of the Commission or any of its Divisions not
duty to determine whether the papers transmitted to them are constituting direct contempt under Section 1 of this Rules;
genuine election returns signed by the proper officers.10 When
the results of the elections in the province of Maguindanao (d) Any improper conduct tending, directly or indirectly, to
were being canvassed, counsels for various candidates posited impede, obstruct, or degrade the administration of justice by
numerous questions on the certificates of canvass brought the Commission or any of its Divisions;
before the COMELEC. The COMELEC asked petitioner to
appear before it in order to shed light on the issue of whether
the election documents coming from Maguindanao were (e) Assuming to be an attorney and acting as such without
spurious or not. When petitioner unjustifiably refused to authority; and
appear, COMELEC undeniably acted within the bounds of its
jurisdiction when it issued the assailed resolutions. (f) Failure to obey a subpoena duly served.
In Santiago, Jr. v. Bautista,11 the Court held: SEC. 3 Penalty for Indirect Contempt. – If adjudged guilty, the
accused may be punished by a fine not exceeding one
xxx. The exercise of judicial functions may involve the thousand (P1,000.00) pesos or imprisonment for not more than
performance of legislative or administrative duties, and the six (6) months, or both, at the discretion of the Commission or
performance of and administrative or ministerial duties, may, in Division.
a measure, involve the exercise of judicial functions. It may be
said generally that the exercise of judicial functions is to The language of the Omnibus Election Code and the
determine what the law is, and what the legal rights of parties COMELEC Rules of Procedure is broad enough to allow the
are, with respect to a matter in controversy; and whenever an initiation of indirect contempt proceedings by the COMELEC
officer is clothed with that authority, and undertakes to motu proprio. Furthermore, the above-quoted provision of
determine those questions, he acts judicially. Section 52(e), Article VII of the Omnibus Election Code
explicitly adopts the procedure and penalties provided by the
On the procedure adopted by the COMELEC in proceeding Rules of Court. Under Section 4, Rule 71, said proceedings
with the indirect contempt charges against petitioner, Section may be initiated motu proprio by the COMELEC, viz:
52 (e), Article VII of the Omnibus Election Code pertinently
provides: SEC. 4. How proceedings commenced. – Proceedings for
indirect contempt may be initiated motu proprio by the court
Section 52. Powers and functions of the Commission on against which the contempt was committed by an order or any
Elections. other formal charge requiring the respondent to show cause
why he should not be punished for contempt.
xxx
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars
(e) Punish contempts provided for in the Rules of Court in the and certified true copies of documents or papers involved
same procedure and with the same penalties provided therin. therein, and upon full compliance with the requirements for
Any violation of any final and executory decision, order or filing initiatory pleadings for civil actions in the court concerned.
ruling of the Commission shall constitute contempt thereof. If the contempt charges arose out of or are related to a
[Emphasis ours.] principal action pending in the court, the petition for contempt
shall allege that fact but said petition shall be docketed, heard
The aforecited provision of law is implemented by Rule 29 of and decided separately, unless the court in its discretion orders
COMELEC’s Rules of Procedure, Section 2 of which states: the consolidation of the contempt charge and the principal
action for joint hearing and decision.
Rule 29 – Contempt
Hence, the COMELEC properly assumed jurisdiction over the
indirect contempt proceedings which were initiated by its Task
26
Force Maguindanao, through a Contempt Charge and Show weeks after the elections. The COMELEC viewed such act as
Cause Order, notwithstanding the absence of any complaint a contemptuous interference with its normal functions.
filed by a private party.
Third and fourth, he publicly displayed disrespect for the
We turn now to petitioner’s claim that the COMELEC pre- authority of the COMELEC through the media (interviews on
judged the case against him, and that its findings were not national television channels, and in newspapers and radios) by
supported by evidence. His claim deserves scant flaunting an armory of long firearms and side arms in public,
consideration. and posing for the front page of a national broadsheet, with a
shiny pistol tucked in a holster, in violation of paragraphs (a)
The fact that the indirect contempt charges against petitioner and (d), Section 2, Rule 29 of same Rules.
were initiated motu proprio by the COMELEC did not by itself
prove that it had already prejudged the case against him. As Petitioner questions the probative value of the newspaper
borne out by the records, the COMELEC gave petitioner clippings published in the Philippine Daily Inquirer on June 26,
several opportunities to explain his side and to present 2007 which showed a photo of him with a firearm tucked to his
evidence to defend himself. All of petitioner’s belatedly filed side and his supposed exclusive interview. He claims that said
pleadings were admitted and taken into consideration before newspaper clippings are mere hearsay, which are of no
the COMELEC issued the assailed Resolution finding petitioner evidentiary value.
guilty of indirect contempt.
True, there were instances when the Court rejected newspaper
The COMELEC complied with the aforementioned Section 4, articles as hearsay, when such articles are offered to prove
Rule 71 of the Rules of Court and with the requirements set by their contents without any other competent and credible
Rule 29 of the COMELEC Rules of Procedure, when it issued evidence to corroborate them. However, in Estrada v. Desierto,
the Contempt Charge and Show Cause Order against et al.,13 the Court held that not all hearsay evidence is
petitioner directing him to appear before it and explain why he inadmissible and how over time, exceptions to the hearsay rule
should not be held in contempt. have emerged. Hearsay evidence may be admitted by the
courts on grounds of "relevance, trustworthiness and
Petitioner claims that the challenged Resolution finding him necessity."14 When certain facts are within judicial notice of the
guilty of indirect contempt was based merely on hearsay, Court, newspaper accounts "only buttressed these facts as
surmises, speculations and conjectures, and not on competent facts."15
and substantial evidence. He contends that there is no
convincing evidence that he deliberately refused to heed the Another exception to the hearsay rule is the doctrine of
summonses of the COMELEC or that he was sufficiently independently relevant statements, where only the fact that
notified of the investigative hearings. He further argues that the such statements were made is relevant, and the truth or falsity
loss of the election documents should not even be thereof is immaterial. The hearsay rule does not apply; hence,
automatically ascribed to him. the statements are admissible as evidence. Evidence as to the
making of such statement is not secondary but primary, for the
We are not persuaded. statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact. 16
Petitioner was found guilty of contempt on four (4) grounds.
First, he repeatedly failed to attend, despite notice of the Here, the newspaper clippings were introduced to prove that
scheduled12 canvassing of the Provincial Certificates of petitioner deliberately defied or challenged the authority of the
Canvass, the hearing of the Task Force Maguindanao; and COMELEC. As ratiocinated by the COMELEC in the
refused to submit his explanation for such absences, which he challenged Resolution of August 7, 2007, it was not the mere
had undertaken to submit, in violation of paragraphs (b) and (f) content of the articles that was in issue, but petitioner’s conduct
of Section 2, Rule 29 of the COMELEC Rules of Procedure. when he allowed himself to be interviewed in the manner and
circumstances, adverted to in the COMELEC Resolution, on a
pending controversy which was still brewing in the COMELEC.
Petitioner was duly notified of the scheduled hearings. It was While petitioner claimed that he was misquoted, he denied
his official responsibility to be present during the scheduled neither the said interview nor his picture splashed on the
hearing to shed light on the allegedly stolen election newspaper with a firearm holstered at his side but simply relied
documents but he failed to do so without offering any valid on his objection to the hearsay nature of the newspaper
justification for his non-appearance. clippings. It should be stressed that petitioner was no ordinary
witness or respondent. He was under the administrative
Second, he unlawfully assumed custody of accountable supervision of the COMELEC17 and it was incumbent upon him
election documents, which were lost while in his possession, to demonstrate to the COMELEC that he had faithfully
and consequently failed to deliver the same, in violation of discharged his duties as dictated by law. His evasiveness and
paragraphs (a), (c) and (d) Section 2, Rule 29 of same Rules. refusal to present his evidence as well as his reliance on
technicalities to justify such refusal in the face of the
Petitioner admitted that the subject certificate of canvass and allegations of fraud or anomalies and newspaper publication
other election documents were lost while in his custody. mentioned to the Contempt Charge and Show Cause Order
Petitioner himself admitted during the hearing held on June 11, amounted to an implied admission of the charges leveled
2007 that the documents were stolen sometime on May 29, against him.
2007. Apart from the said loss of the vital election documents,
his liability stemmed from the fact that he illegally retained All told, petitioner brought this predicament upon himself when
custody and possession of said documents more than two he opted to dispense with the presentation of his evidence
during the scheduled hearings and to explain his non-
27
appearance at the hearings of Task Force Maguindanao and
the loss of the certificates of canvass and other election
documents.
SO ORDERED.
DECISION
PANGANIBAN, CJ:
The Case
28
the above-mentioned accused, armed with a gun, and with giving him an unobstructed view of Artemio who was about five
intent to kill, wilfully, unlawfully and feloniously shot one (5) meters away from where he was positioned at that time.
Artemio Pantinople, thereby inflicting fatal wound upon the Although there was a gemilina tree growing in the space in
latter which caused his death."8 between his house and the store of Artemio, the same did not
block his view of Artemio. Likewise, the coconut trees and
The Facts young banana plants growing at the scene of the crime did not
affect his view.
Version of the Prosecution
"At the same instance, Ernita was also in their kitchen
preparing milk for her baby. Her baby was then lying on the
The Office of the Solicitor General (OSG) summarized the floor of their kitchen. When she was about to put the bottle into
People’s version of the facts: the baby’s mouth, she suddenly heard the sound of a gunburst
followed by a shout, ‘Help me Pre, I was shot by the captain.’
"4. The prosecution presented Lito Santos, Ernita Pantinople, She immediately pushed open the window of their kitchen and
PO2 Mariano Operario, Alicia Pantinople and Dr. Danilo saw appellant wearing a black jacket and camouflage pants
Ledesma as its witnesses from whose testimonies, the running towards the direction of the back portion of Lito’s
following facts were established. house. From there, appellant crossed the street and
disappeared.
"Lito Santos, a forty-three-year old farmer and resident of
Barangay Gatungan, Bunawan District, Davao City, testified "Ernita saw appellant carrying with him a long firearm which
that about 6:00 o’clock in the afternoon of November 4, 1998, looked like an M-14 rifle. Ernita also sensed that appellant had
he saw his neighbor and ‘kumpare’ Artemio Pantinople arrive some companions with him because she heard the crackling
on board a jeepney from Bunawan, Davao City. Artemio was sound of the dried leaves around the place. Ernita had a clear
carrying a truck battery, some corn bran and rice. They talked view of appellant at that time because their place was well-
for a while concerning their livelihood afterwhich, Artemio illumined by the full moon that night and by the two (2)
proceeded to connect the battery to the fluorescent lamps in fluorescent lamps in their store which were switched on at the
his store. Artemio’s store was located about five (5) meters time of the incident.
away from Lito’s house.
"Ernita immediately went out of their house and ran towards
"After installing the battery to the fluorescent lamps, Artemio Artemio. Artemio tried to speak to her but he could not do so
sat for a while on a bench located in front of his store. Then, because his mouth was full of blood. Upon seeing the pitiful
Cecilia Santos, Lito’s wife, called him and Artemio for supper. sight of her husband, Ernita shouted several times, ‘Kapitan,
Artemio obliged. Lito, opting to eat later, served Artemio and ngano nimo gipatay and akong bana.’ She also repeatedly
Cecilia the food. After eating, Artemio returned to the bench called her neighbors for help but only Lito Santos, Eufemio
and sat on it again together with his tree (3) children, namely: Antenero, Norman Libre and some residents of Poblacion
Janice, Saysay and Pitpit. Gatungan responded to her calls and approached them. She
noted that no member of the CFO and CAFGU came to help
"Lito was eating supper in their kitchen when he heard a them. Also, no barangay tanod came to offer them to help.
gunshot. From a distance of about ten (10) meters, he also
noticed smoke and fire coming from the muzzle of a big gun. "While waiting for the police, Ernita did not allow Artemio’s
Moments later, he saw Artemio clasping his chest and body to be touched by anybody. After more than two (2) hours,
staggering backwards to the direction of his (Lito’s) kitchen. the police arrived, together with a photographer by the name of
Artemio shouted to him, ‘Tabangi ko Pre, gipusil ko ni kapitan,’ Fe Mendez of Bunawan District, Davao City who took pictures
meaning ‘Help me, Pre, I was shot by the captain.’ However, of the crime scene.
Lito did not approach Artemio right after the shooting incident
because Cecilia warned him that he might also be shot. "PO2 Mariano Operario, Investigation Officer of the
Investigation Section of the Bunawan Police Station, Philippine
"Lito did not see the person who shot Artemio because his National Police, Davao City, testified that about 9:05 in the
attention was then focused on Artemio. evening of November 4, 1998, he received a report of an
alleged shooting incident at Barangay Gatungan, Bunawan
"Shortly, Lito saw Ernita Pantinople, the wife of Artemio, District in Davao City. Together with SPO1 Rodel C. Estrellan
coming from her house towards the direction where Artemio and a member of the mobile police patrol on board their mobile
was sprawled on the ground. Ernita was hysterical, jumping car, PO2 Operario proceeded immediately to the crime scene.
and shouting, ‘Kapitan, bakit mo binaril and aking asawa.’ She They reached the crime scene about 10:00 o’clock in the
also repeatedly cried for help. evening of the same date. They found the lifeless body of
Artemio sprawled on the ground. Ernita and Lito then
approached PO2 Operario and informed him that appellant
"Lito then went out of their house and approached Artemio who was the one responsible for the shooting.
was lying dead near a banana trunk more than five (5) meters
from his house. Some of their neighbors, namely: Antenero,
Loloy Libre and Lapis answered Ernita’s call for help and "PO2 Operario stayed at the crime scene for about one (1)
approached them. hour and waited for the funeral vehicle to pick up the body of
Artemio. When the funeral hearse arrived, PO2 Operario told
the crew to load Artemio’s body into the vehicle. Thereafter, he
"When the shooting incident happened about 7:30 in the then boarded again their mobile car together with Lito Santos.
evening of November 4, 1998, Lito’s house was illumined by a
lamp. Their kitchen has no walls. It is an open-type kitchen
29
"Armed with the information that appellant was the one ‘Body in rigor mortis.
responsible for the shooting of Artemio, PO2 Operario
proceeded to the house of appellant and informed him that he ‘Wound, gunshot, ENTRANCE, 0.9 x 0.8 cm. Ovaloid
was a suspect in the killing of Artemio. He then invited located at the anterior chestwall, rightside, 1.0 cm;
appellant to go with him to the police station and also to bring from the anterior median line, at the level of the third
along with him his M-14 rifle. Appellant did not say anything. (3rd) intercoastal space and 131.0 cms. above the
He just got his M-14 rifle and went with the police to the police right heel, directed backwards, upwards, medially
station where he was detained the whole night of November 4, crossing the midline from the right to left, involving the
1998. Appellant did not also give any statement to anybody soft tissues, perforating the body of the sternum, into
about the incident. The following day, appellant was transferred the pericardial cavity, perforating the heart into the left
by the police to Tibungco Police Station where he was thoracic cavity, perforating the heart into the left
detained. thoracic cavity, perforating the upper lobe of the left
lung, forming an irregular EXIT, 1.5 x 1.1 cms. at the
"Alicia Pantinople, the 44-year old sister of Artemio, testified posterior chest wall left side, 13.0 cms. from the
that on the night of November 4, 1998, she was at home posterior median line and 139.0 cms. above the left
watching television. She heard a gunshot but did not mind it heel.
because she was already used to hearing the sound of guns
fired indiscriminately in their place. ‘Hemopericadium, 300 ml.
"After a few minutes, Junjun, a child and resident of Sitio ‘Hemothorax, left, 1,000 ml.
Centro, Barangay Gatungan, Bunawan District, Davao City
came knocking at their door. Junjun informed them that: ‘Yoyo,
Uncle Titing was shot,’ referring to Artemio. ‘Stomach, filled with partially digested food particles.
"Upon hearing the report, Alicia looked for some money ‘Other visceral organs, pale.
thinking that it might be needed for Artemio’s hospitalization
because she expected Artemio to be still alive. Artemio’s two ‘CAUSE OF DEATH: Gunshot wound of the chest.
(2) children, namely: Jonel and Genesis who were staying with
her hurriedly left. She then ran to the place where her brother Signed by: DANILO P. LEDESMA
was shot and found Artemio’s dead body on the ground Medico-Legal Officer IV’
surrounded by his four (4) children.
‘POSTMORTEM FINDINGS "9. This is a criminal case for Homicide originally lodged before
the Regional Trial Court, Branch 10 of Davao City against
‘Pallor, marked generalized. herein Petitioner Celestino Marturillas, former Barangay
Captain of Gatungan, Bunawan District[,] Davao City and
docketed as Criminal Case No. 42,091-98. The criminal charge
30
against Petitioner was the result of a shooting incident in ‘One Dominador Lopez 43 years old, married, farmer and a
Barangay Gatungan, Bunawan District, Davao City which resident of Puro[k] 5, Barangay Gatungan, Davao City
resulted in the slaying of Artemio Pantinople while the latter appeared at this Precinct and reported that shortly before this
was on his way home in the evening of November 4, 1998. writing, one ARTEMIO PANTINOPLE, former barangay
kagawad of Barangay Gatungan was allegedly shot to death by
"10. On that same evening at around 8:30 p.m. herein an unidentified armed men at the aforementioned Barangay. x
Petitioner former Barangay Captain Celestino Marturillas was x x.’
roused from his sleep at his house in Barangay Gatungan,
Bunawan District, Davao City by his wife since Kagawads "15. The extract from the police blotter prepared by SPO2
Jimmy Balugo and Norman Libre (Barangay Kagawads of Dario B. Undo dated November 9, 1998 already had a little
Gatungan, Bunawan District, Davao City) wanted to see him. modification indicating therein that deceased was shot by an
Dazed after just having risen from bed, Petitioner was rubbing unidentified armed man and the following entry was made.
his eyes when he met the two Kagawads inside his house. He
was informed that a resident of his barangay, Artemio ‘2105H: Shooting Incident: One Dominador Lopez, 43 years
Pantinople, had just been shot. Petitioner at once ordered his old, married, farmer and a resident of Purok 5, Barangay
Kagawads to assemble the members of the SCAA (Special Gatungan Bunawan District, Davao City appeared at this
Civilian Armed [Auxiliary]) so that they could be escorted to the Police Precinct and reported that prior to these writing, one
crime scene some 250 meters away. As soon as the SCAA’s Artemio Pantinople, former Barangay Kagawad of Barangay
were contacted, they (Petitioner, Kagawads Libre and Balugo Gatungan was allegedly shot to death by unidentified armed
including Wiliam Gabas, Eddie Loyahan and Junior Marturillas man at the aforementioned barangay. x x x.’
- the last three being SCAA members) then proceeded to the
crime scene to determine what assistance they could render.
"16. On November 5, 1998 at around 7:15 a.m. PO2 Mariano
Operario indorsed with the Bunawan PNP an empty shell fired
"11. While approaching the store owned by the Pantinople’s from a carbine rifle which was recovered by the said police
and not very far from where the deceased lay sprawled, officer from the crime scene in the night of the incident. Owing
Petitioner was met by Ernita Pantinople (wife of the deceased- to his pre-occupation in organizing and preparing the affidavits
Artemio Pantinople) who was very mad and belligerent. She of the Complainant and her witnesses the previous evening, he
immediately accused Petitioner of having shot her husband was only able to indorse the same the following morning. At the
instead of Lito Santos who was his enemy. Petitioner was same time, P/Chief Insp. Julito M. Diray, Station Commander
taken aback by the instant accusation against him. He of the Bunawan PNP made a written request addressed to the
explained that he just came from his house where he was District Commander of the PNP Crime Laboratory requesting
roused by his Kagawads from his sleep. Not being able to talk that a paraffin test be conducted on Petitioner and that a
sense with Ernita Pantinople, Petitioner and his companions ballistics examination be made on the M-14 rifle which he
backed off to avoid a heated confrontation. Petitioner instead surrendered to Bunawan PNP.
decided to go back to his house along with his companions.
"17. At around 9:30 a.m. of November 5, 1998, Dr. Danilo P.
"12. Upon reaching his house, Petitioner instructed Kagawad Ledesma, M.D., Medico-Legal Officer for Davao City
Jimmy Balugo to contact the Bunawan Police Station and conducted an autopsy on the cadaver of deceased and made
inform them what transpired. Not knowing the radio frequency the following Post-Mortem Findings contained in Necropsy
of the local police, Kagawad Balugo instead radioed officials of Report No. 76 dated November 6, 1998, viz:
nearby Barangay San Isidro requesting them to contact the
Bunawan PNP for police assistance since someone was shot
in their locality. ‘Pallor, marked, generalized
"13. Moments later, PO2 Mariano Operario and another police ‘Body in rigor mortis
officer arrived at the house of Petitioner and when confronted
by the latter, he was informed by PO2 Operario that he was the ‘Wound, gunshot, ENTRANCE, 0.9-0.8 cm. ovaloid located at
principal suspect in the slaying of Artemio Pantinople. Upon the anterior chest wall, right side, .0 cm. from the anterior
their invitation, Petitioner immediately went with the said police median line, at the level of the third (3rd) intercostal space and
officers for questioning at the Bunawan Police Station. He also 131.0 cms. above the right neck, directed backwards, upwards,
took with him his government-issued M-14 Rifle and one medially, crossing the midline from the right to left, involving
magazine of live M-14 ammunition which Petitioner turned over the soft tissues, perforating the body of the sternum into the
for safe keeping with the Bunawan PNP. The police blotter pericardial cavity, perforating the heart into the left thoracic
showed that Petitioner surrendered his M-14 rifle with live cavity, perforating the upper lobe of the left lung forming an
ammunition to SPO1 Estrellan and PO3 Sendrijas of the irregular EXIT, 1.5x1.1 cms. at the posterior chest wall, left
Bunawan PNP at around 10:45 p.m. of November 4, 1998. side, 13.0 cms. from the posterior median line and 139.0 cms.
above the left neck.
"14. When the shooting incident was first recorded in the Daily
Record of Events of the Bunawan PNP it was indicated therein ‘Hemopericadium, 300 ml.
that deceased may have been shot by unidentified armed men
viz: ‘Hemothorax, left 1,000 ml.
‘Entry No. Date Time Incident/Events ‘Stomach filled with partially digested food particles.
"20. The following is the Affidavit-Complaint of Ernita ‘That no other person named by the victim other than Brgy.
Pantinople as well as the supporting affidavits of her witnesses Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan
all of which are quoted in full hereunder: District, Davao City;
‘Ernita Pantinople’s Affidavit-Complaint dated November 5, ‘That I am executing this affidavit to apprised the authorities
1998: concern of the true facts and circumstances that surrounds the
incident.’
‘That last November 4, 1998 at about 7:30 in the evening, I
was attending and caring my baby boy at that time to let him "21. Based on the Affidavits executed by Ernita Pantinople and
sleep and that moment I heard first one gun shot burst after Lito Santos, then 2nd Asst. City Prosecutor Raul B. Bendigo
then somebody shouting seeking for help in Visayan words issued a Resolution on November 5, 1998 finding sufficient
‘tabangi ko Pre gipusil ko ni Kapitan’ I estimated a distance to evidence to indict Appellant for the crime of Homicide and not
more or less ten (10) meters away from my house; Murder as alleged in Private Complainant’s Affidavit Complaint.
The Information states:
‘That I immediately peep at the windows, wherein I very saw a
person of Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, ‘Above-mentioned Accused, armed with a gun, and with intent
Bunawan District, Davao City, wearing black jacket and to kill, willfully, unlawfully and feloniously shot one Artemio
camouflage pants carrying his M-14 rifle running to the Pantinople, thereby inflicting fatal wound upon the latter which
direction to the left side portion of the house of Lito Santos who caused his death.
was my neighbor respectively;
‘CONTRARY TO LAW.’
‘That I hurriedly go down from my house and proceeded to the
victims body, wherein when I came nearer I got surprised for xxxxxxxxx
the victim was my beloved husband;
"23. The theory of the Defense was anchored on the testimony
‘That I was always shouting in visayan words ‘kapitan nganong of the following individuals:
imo mang gipatay and akong bana’;
‘23.1 Jimmy Balugo, was one of the Barangay Kagawads who
‘That I let my husband body still at that placed until the police went to the house of Petitioner after receiving a radio message
officers will arrived and investigate the incident; from Brgy. Kagawad Glenda Lascuña that a shooting incident
took place in their barangay. He also testified that together with
32
Kagawad Norberto Libre, he proceeded to the house of there were many coconut and other trees and bananas in the
Petitioner to inform him of the shooting incident involving a crime scene. He also testified that the house of Lito Santos
certain Artemio ‘Titing’ Pantinople. After informing Petitioner was only about four (4) meters from the crime scene, while the
about what happened, the latter instructed him and Norberto house of victim-Artemio Pantinople was about FIFTY (50)
Libre to gather the SCAA’s and to accompany them to the meters away. He testified that there was no lighted fluorescent
crime scene. He also narrated to the court that Petitioner and at the store of deceased at the time of the shooting. He was
their group were not able to render any assistance at the crime also the one who informed Kagawad Glenda Lascuna about
scene since the widow and the relatives of deceased were the shooting of Artemio Pantinople. His testimony also
already belligerent. As a result of which, the group of Petitioner revealed that when the responding policemen arrived, Lito
including himself, went back to the former’s house where he Santos immediately approached the policemen, volunteered
asked Petitioner if it would be alright to contact the police and himself as a witness and even declared that he would testify
request for assistance. He claimed that he was able to contact that it was Petitioner who shot Artemio Pantinople.
the Bunawan PNP with the help of the Barangay Police of
Barangay San Isidro. ‘On cross-examination, this witness declared that the crime
scene was very dark and one cannot see the body of the victim
‘23.2) Norberto Libre testified that in the evening of November without light. On cross-examination, this witness also testified
4, 1998, he heard a gunburst which resembled a firecracker that Lito Santos approached the service vehicle of the
and after a few minutes Barangay Kagawad Jimmy Balugo responding policemen and volunteered to be a witness that
went to his house and informed him that their neighbor Titing Petitioner was the assailant of the victim, Artemio Pantinople.
Pantinople was shot. Kagawad Balugo requested him to This witness further testified that immediately after he went to
accompany the former to go to the house of then Barangay the crime scene, the widow of the victim and the children were
Captain Celestino Marturillas; that he and Kagawad Balugo merely shouting and crying and it was only after the policemen
proceeded to the house of Petitioner and shouted to awaken arrived that the widow uttered in a loud voice, ‘Kapitan
the latter; that Barangay Captain Marturillas went out rubbing nganong gipatay mo and akong bana?’
his eyes awakened from his sleep and was informed of the
killing of Artemio Pantinople; that Petitioner immediately ‘23.6) Celestino Marturillas, former Barangay Captain of
instructed them to fetch the SCAA and thereafter their group Barangay Gatungan, Bunawan District, Davao City testified
went to the crime scene. that he learned of Pantinople’s killing two hours later through
information personally relayed to him by Kagawads Jimmy
‘23.3) Ronito Bedero testified that he was in his house on the Balugo and Norberto Libre. He intimated to the Court that he
night Artemio Pantinop[l]e was shot. The material point raised did try to extend some assistance to the family of the deceased
by this witness in his testimony was the fact that he saw an but was prevented from so doing since the wife of deceased
unidentified armed man flee from the crime scene who later herself and her relatives were already hostile with him when he
joined two other armed men near a nangka tree not far from was about to approach the crime scene. He also testified that
where deceased was shot. All three later fled on foot towards he voluntarily went with the police officers who arrested him at
the direction of the Purok Center in Barangay Gatungan. This his residence on the same evening after the victim was shot.
witness noticed that one of the three men was armed with a He also turned over to police custody the M-14 rifle issued to
rifle but could not make out their identities since the area where him and voluntarily submitted himself to paraffin testing a few
the three men converged was a very dark place. After the three hours after he was taken in for questioning by the Bunawan
men disappeared, he saw from the opposite direction PNP. Petitioner, during the trial consistently maintained that he
Petitioner, Barangay Kagawad Jimmy Balugo and three (3) is innocent of the charge against him.’"10
SCAA members going to the scene of the crime but they did
not reach the crime scene. A little later, he saw the group of Ruling of the Court of Appeals
Petitioner return to where they came from.
The CA affirmed the findings of the RTC that the guilt of
‘23.4) Police C/Insp. Noemi Austero, Forensic Chemist of the petitioner had been established beyond reasonable doubt.
PNP Crime Laboratory, testified that she conducted a paraffin According to the appellate court, he was positively identified as
test on both hands of Petitioner on November 5, 1999 at the one running away from the crime scene immediately after
around 10:30 a.m. She also testified that Petitioner tested the gunshot. This fact, together with the declaration of the
NEGATIVE for gunpowder nitrates indicating that he never victim himself that he had been shot by the captain, clearly
fired a weapon at any time between 7:30 p.m. of November 4, established the latter’s complicity in the crime.
1999 until the next day, November 5, 1999. She also testified
that as a matter of procedure at the PNP Crime Laboratory,
they do not conduct paraffin testing on a crime suspect seventy No ill motive could be ascribed by the CA to the prosecution
two (72) hours after an alleged shooting incident. She also witnesses. Thus, their positive, credible and unequivocal
testified that based on her experience she is not aware of any testimonies were accepted as sufficient to establish the guilt of
chemical that could extract gunpowder nitrates from the hands petitioner beyond reasonable doubt.
of a person who had just fired his weapon.
On the other hand, the CA also rejected his defenses of denial
‘23.5) Dominador Lapiz testified that he lived on the land of the and alibi. It held that they were necessarily suspect, especially
victim, Artemio Pantinople for ten (10) years. He was one of when established by friends or relatives, and should thus be
the first persons who went to the crime scene where he subjected to the strictest scrutiny. At any rate, his alibi and
personally saw the body of deceased lying at a very dark denial cannot prevail over the positive testimonies of the
portion some distance from the victim’s house and that those prosecution witnesses found to be more credible.
with him at that time even had to light the place with a lamp so
that they could clearly see the deceased. He also testified that
33
The appellate court upheld petitioner’s conviction, as well as First Main Issue:
the award of damages. In addition, it awarded actual damages
representing unearned income. Credibility of the Prosecution Evidence
36
exception to the hearsay rule, but was also a weighty and defense, but on the strength of its evidence, implying that there
telling piece of evidence. was no sufficient evidence to convict him.
"Part of the res gestae. -- Statements made by a person while The following circumstances proven by the prosecution
a startling occurrence is taking place or immediately prior or produce a conviction beyond reasonable doubt:
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the First. Santos testified that he had heard a gunshot;
issue, and giving it a legal significance, may be received as and seen smoke coming from the muzzle of a gun, as
part of the res gestae." well as the victim staggering backwards while
shouting, "Help me p’re, I was shot by the captain."
This statement was duly established, and the
Res gestae refers to statements made by the participants or testimony of Santos confirmed the events that had
the victims of, or the spectators to, a crime immediately before, occurred. It should be understandable that "p’re"
during, or after its commission.49 These statements are a referred to Santos, considering that he and the victim
spontaneous reaction or utterance inspired by the excitement were conversing just before the shooting took place. It
of the occasion, without any opportunity for the declarant to was also established that the two called each other
fabricate a false statement.50 An important consideration is "p’re," because Santos was the godfather of the
whether there intervened, between the occurrence and the victim’s child.54
statement, any circumstance calculated to divert the mind and
thus restore the mental balance of the declarant; and afford an
opportunity for deliberation.51 Second. Ernita testified that she had heard a gunshot
and her husband’s utterance, "Help me p’re, I was
shot by the captain," then saw petitioner in a black
A declaration is deemed part of the res gestae and admissible jacket and camouflage pants running away from the
in evidence as an exception to the hearsay rule, when the crime scene while carrying a firearm.
following requisites concur: 1) the principal act, the res gestae,
is a startling occurrence; 2) the statements were made before
the declarant had time to contrive or devise; and 3) the Third. Ernita’s statement, "Captain, why did you shoot
statements concerned the occurrence in question and its my husband?" was established as part of the res
immediately attending circumstances.52 gestae.
All these requisites are present in this case. The principal act, Fourth. The version of the events given by petitioner
the shooting, was a startling occurrence. Immediately after, is simply implausible. As the incumbent barangay
while he was still under the exciting influence of the startling captain, it should have been his responsibility to go
occurrence, the victim made the declaration without any prior immediately to the crime scene and investigate the
opportunity to contrive a story implicating petitioner. Also, the shooting. Instead, he avers that when he went to the
declaration concerned the one who shot the victim. Thus, the situs of the crime, the wife of the victim was already
latter’s statement was correctly appreciated as part of the res shouting and accusing him of being the assailant, so
gestae. he just left. This reaction was very unlikely of an
innocent barangay captain, who would simply want to
investigate a crime. Often have we ruled that the first
Aside from the victim’s statement, which is part of the res impulse of innocent persons when accused of
gestae, that of Ernita -- "Kapitan, ngano nimo gipatay ang wrongdoing is to express their innocence at the first
akong bana?" ("Captain, why did you shoot my husband?") -- opportune time.55
may be considered to be in the same category. Her statement
was about the same startling occurrence; it was uttered
spontaneously, right after the shooting, while she had no Fifth. The prosecution was able to establish motive on
opportunity to concoct a story against petitioner; and it related the part of petitioner. The victim’s wife positively
to the circumstances of the shooting. testified that prior to the shooting, her husband was
trying to close a real estate transaction which
petitioner tried to block. This showed petitioner’s
Second Main Issue: antagonism towards the victim.56
37
definitive statement of the victim that he had been shot by the To undermine the case of the prosecution against him,
barangay captain. petitioner depends heavily on its failure to present the gun
used in the shooting and on the negative paraffin test result.
Clearly, petitioner’s guilt was established beyond reasonable These pieces of evidence alone, according to him, should
doubt. To be sure, conviction in a criminal case does not exculpate him from the crime. His reliance on them is definitely
require a degree of proof that, excluding the possibility of error, misplaced, however. In a similar case, this Court has ruled as
produces absolute certainty.58 Only moral certainty is required follows:
or that degree of proof that produces conviction in an
unprejudiced mind.59 "Petitioner likewise harps on the prosecution’s failure to
present the records from the Firearms and Explosives
That some pieces of the above-mentioned evidence are Department of the Philippine National Police at Camp Crame of
circumstantial does not diminish the fact that they are of a the .45 caliber Remington pistol owned by petitioner for
nature that would lead the mind intuitively, or by a conscious comparison with the specimen found at the crime scene with
process of reasoning, toward the conviction of petitioner. 60 the hope that it would exculpate him from the trouble he is in.
Circumstantial, vis-à-vis direct, evidence is not necessarily Unfortunately for petitioner, we have previously held that ‘the
weaker.61 Moreover, the circumstantial evidence described choice of what evidence to present, or who should testify as a
above satisfies the requirements of the Rules of Court, which witness is within the discretionary power of the prosecutor and
we quote: definitely not of the courts to dictate.’
"SEC. 4. Circumstantial evidence, when sufficient. -- "Anent the failure of the investigators to conduct a paraffin test
Circumstantial evidence is sufficient for conviction if: on petitioner, this Court has time and again held that such
failure is not fatal to the case of the prosecution as scientific
experts agree that the paraffin test is extremely unreliable and
(a) There is more than one circumstance; it is not conclusive as to an accused’s complicity in the crime
committed."66
(b) The facts from which the inferences are derived
are proven; and Finally, as regards petitioner’s alibi, we need not belabor the
point. It was easily, and correctly, dismissed by the CA thus:
(c) The combination of all the circumstances is such
as to produce a conviction beyond reasonable "[Petitioner’s] alibi is utterly untenable. For alibi to prosper, it
doubt."62 must be shown that it was physically impossible for the
accused to have been at the scene of the crime at the time of
Paraffin Test its commission. Here, the locus criminis was only several
meters away from [petitioner’s] home. In any event, this
Petitioner takes issue with the negative results of the paraffin defense cannot be given credence in the face of the credible
test done on him. While they were negative, that fact alone did and positive identification made by Ernita."67
not ipso facto prove that he was innocent. Time and time
again, this Court has held that a negative paraffin test result is Third Issue:
not a conclusive proof that a person has not fired a gun. 63 In
other words, it is possible to fire a gun and yet be negative for Damages
nitrates, as when culprits wear gloves, wash their hands
afterwards, or are bathed in perspiration.64 Besides, the
prosecution was able to establish the events during the An appeal in a criminal proceeding throws the whole case open
shooting, including the presence of petitioner at the scene of for review.1avvphil.net It then becomes the duty of this Court to
the crime. Hence, all other matters, such as the negative correct any error in the appealed judgment, whether or not
paraffin test result, are of lesser probative value. included in the assignment of error.68 The CA upheld the RTC
in the latter’s award of damages, with the modification that
unearned income be added.
Corpus Delicti
We uphold the award of P50,000 indemnity ex delicto69 to the
Petitioner then argues that the prosecution miserably failed to heirs of the victim. When death occurs as a result of a crime,
establish the type of gun used in the shooting. Suffice it to say the heirs of the deceased are entitled to this amount as
that this contention hardly dents the latter’s case. As correctly indemnity for the death, without need of any evidence or proof
found by the appellate court, the prosecution was able to give of damages.70 As to actual damages, we note that the
sufficient proof of the corpus delicti -- the fact that a crime had prosecution was able to establish sufficiently only P22,200 for
actually been committed. Ruled this Court in another case: funeral and burial costs. The rest of the expenses, although
presented, were not duly receipted. We cannot simply accept
"[Corpus delicti] is the fact of the commission of the crime that them as credible evidence. This Court has already ruled,
may be proved by the testimony of eyewitnesses. In its legal though, that when actual damages proven by receipts during
sense, corpus delicti does not necessarily refer to the body of the trial amount to less than P25,000, the award of P25,000 for
the person murdered, to the firearms in the crime of homicide temperate damages is justified, in lieu of the actual damages of
with the use of unlicensed firearms, to the ransom money in a lesser amount.71 In effect, the award granted by the lower
the crime of kidnapping for ransom, or x x x to the seized court is upheld.
contraband cigarettes."65
As to the award of moral damages, the P500,000 given by the
RTC and upheld by the CA should be reduced to P50,000,
38
consistent with prevailing jurisprudence.72 We also affirm the
award of loss of earning capacity73 in the amount of P312,000;
attorney’s fees of P20,000; and payment of the costs.
SO ORDERED.
DECISION
39
ARTHUR U.1 RONQUILLO, thereby hitting and
inflicting upon the latter wounds described hereunder: B = Amado Ariate
10,000.00 - as exemplary damages; and The original copy of this report is retained in
this laboratory for future reference.
40,000.00 - as actual damages.
TIME AND DATE COMPLETED:
CONTRARY TO LAW.2
1700H 03 July 2002
At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and
son Arnel, among other persons, on being informed of the x x x x (Underscoring supplied)
shooting of Arthur Ronquillo (the victim), repaired to where he
was, not far from his residence, and found him lying on his side In a document dated July 1, 2002 and denominated as
and wounded. Although gasping for breath, he was able to "Affidavit"5 which was subscribed and sworn to before Clerk of
utter to Mirasol, within the hearing distance of Arnel, that he Court II Manuel A. Balasa, Sr. on July 26, 2002, the victim's
was shot by Badjing3 and Amado. son Arnel gave a statement in a question and answer style that
herein petitioners Jesus Geraldo and Amado Ariate were the
Petitioners who were suspected to be the "Badjing" and ones who shot his father.
"Amado" responsible for the shooting of the victim were
subjected to paraffin tests at the Philippine National Police In another document dated July 4, 2002 also denominated as
(PNP) Crime Laboratory in Butuan City. In the PNP Chemistry "Affidavit"6 which was subscribed and sworn to also before the
Report No. C-002-2002-SDS,4 the following data are reflected: same Clerk of Court II Balasa on July 26, 2002, Mirasol also
gave a statement in a question and answer style that her father
xxxx uttered that herein petitioners shot him.
40
Petitioner Geraldo declared that he slept in his house located When petitioner Geraldo's turn to present the same PNP
also in Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002 Chemistry Report came, the trial court ruled:
and woke up at 4:00 a.m. the following day. At 6:30 a.m., on
seeing many people in the vicinity of the 45-meter away house COURT
of one Josita Bongabong where the victim's body was found,
he inquired and learned that the victim was shot. Policemen
subsequently went to his house and advised him to take a That is the problem in the Pre-Trial Brief if
paraffin test. He obliged and was tested at the PNP Crime the exhibits are not stated. I will set aside
Laboratory and was found negative for gunpowder that Order and in the interest of justice I will
residue/nitrates.9 allow the accused to submit, next time I will
not any more consider exhibits not listed in
the Pre-trial Order.13 (Underscoring supplied)
In the course of the testimony of Ariate, his counsel presented
the PNP Chemistry Report reflecting the negative results of the
paraffin test on him and Geraldo. The trial court restrained the The version of the defense was in part corroborated by
presentation of the document, however, as reflected in the witnesses.
following transcript of stenographic notes taken on March 21,
2003: The trial court, passing on the demeanor of prosecution
witness-the victim's eight-year old daughter Mirasol, observed:
xxxx
. . . She talks straightforward, coherent and clear, very
Q I am showing to you [Ariate] a copy of the result of intelligent, with child mannerism[s]. While testifying
the paraffin test attached to the record of this case. she was criss-crossing her hands, touching anything
within her reach, innocent and simple, pressing of[f]
and on her stomach but she talks with correct
COURT grammar. No doubt, this Court was convinced of her
testimony which was corroborated by her brother
Is it covered in the Pre-trial Order? You Arnel Ronquillo.14
cannot do that. That is why I told you; lay
your cards on the table. On the nature and weight of the dying declaration of the victim,
the trial court observed:
ATTY. AUZA
A dying declaration may be xxx oral or in writing. As a
May I ask for the court's reconsideration. general rule, a dying declaration to be admissible
must be made by the declarant while he is conscious
COURT of his impending death. However, even if a declarant
did not make a statement that he was on the brink of
death, the degree and seriousness of the wound and
Denied. I am warning you, all of you. the fact that death supervened shortly afterwards may
be considered as substantial evidence that the
ATTY. AUZA declaration was made by the victim with full realization
that he was in a dying condition; People vs. Ebrada,
With the denial of our motion for 296 SCRA 353.
reconsideration, I move to tender exclusive
evidence. He would have identified this Even assuming that the declaration is not admissible
result. The paraffin test, which [forms] part of as a dying declaration, it is still admissible as part of
the affidavit of this witness attached to the the res gestae since it was made shortly after the
record of this case on page 29. May I ask startling occurrence and under the influence thereof,
that this will be marked as Exhibit "3" for the hence, under the circumstances, the victim evidently
defense. had no opportunity to contrive.15 (Underscoring
supplied)
COURT
Finding for the prosecution, the trial court convicted petitioners,
Mark it. (Marked).10 (Underscoring supplied) disposing as follows:
As shown from the above-quoted transcript of the proceedings, WHEREFORE, finding the accused JESUS
the trial court restrained the presentation of the result of the GERALDO y CUBERO and AMADO ARIATE y
paraffin tests because the same was not covered in the Pre- DIONALDO guilty beyond reasonable doubt of the
trial Order. In the Pre-trial Order,11 the trial court noted the crime of Homicide penalized under Article 249 of the
parties' agreement "that witnesses not listed in this Pre-trial Revised Penal Code and with the presence of one (1)
Order shall not be allowed to testify as additional witnesses." aggravating circumstance of night time and applying
Significantly, there was no agreement to disallow the the Indeterminate Sentence Law, the maximum term
presentation of documents which were not reflected in the Pre- of which could be properly imposed under the rules of
trial Orders. At all events, oddly, the trial court allowed the said code and the minimum which shall be within the
marking of the PNP Chemistry Report as Exhibit "3."12 range of the penalty next lower to that prescribe[d] by
the code for the offense, hereby sentences each to
41
suffer the penalty of TEN (10) YEARS and ONE (1) identified as the as the assailant of Arthur O.
DAY of Prision Mayor minimum to SEVENTEEN (17) Ronquillo were really the ones who perpetrated the
YEARS, FOUR (4) MONTHS and ONE (1) DAY of crime.
Reclusion Temporal maximum as maximum, with all
the accessory penalties provided for by law. To pay Admittedly, prosecution witnesses were able to
the heirs of the victim the amount of P50,000.00 as identify positively herein petitioners as the alleged
life indemnity, P100,000.00 as moral damages and assailant[s] of Arthur O. Ronquillo. But said
P20,000.00 as exemplary damages. The claim for identification is based on the assumption that they
actual damages is denied, there being no evidence to were the very same "BADJING AMADO" and/or
support the same. "BADJING AND AMADO" referred to by their
deceased father in his dying declaration.
The bail bond put up by the accused Jesus Geraldo
and Amado Ariate are ordered cancelled and to pay What the Honorable Court of Appeals failed to
the cost. consider is that, just because the victim declared that
it was "BADJING AMADO" and/or "BADJING AND
SO ORDERED.16 (Underscoring supplied) AMADO" who shot him does not necessarily follow
that herein petitioners were really the perpetrators in
The Court of Appeals, by Decision of June 30, 2006,17 affirmed the absence of proof that the "BADJING" referred to
with modification the trial court's decision. It found that the trial by him is Jesus Geraldo and that the "AMADO" is
court erred in appreciating nocturnity as an aggravating Amado Ariate. It would have been a different story
circumstance. And it reduced the award of moral damages 18 to had the prosecution witnesses [been] eyewitnesses
P50,000, and deleted the award of exemplary damages. Thus because proof that the "BADJING AMADO" and/or
the Court of Appeals disposed: "BADJING AND AMADO" referred to by the victim
and the persons identified by the prosecution
witnesses are the same is unnecessary.
WHEREFORE, in view of the foregoing, the appealed
decision is hereby AFFIRMED save for the
modification of the penalty imposed. Accordingly, Herein petitioners believe, that even assuming that
accused-appellants are each hereby sentenced to there are no other "BADJING" or "AMADO" in the
suffer an indeterminate penalty of Eight (8) years, barangay, still it does not follow that the person[s]
Five (5) Months and One (1) Day of prision mayor referred to by the dying declarant as his assailant
medium as minimum, to Seventeen (17) Years and were Jesus Geraldo alias "BADJING" and Amado
Four (4) Months of reclusion temporal medium as Ariate alias "AMADO". Although, it is inconceivable
maximum, with all accessory penalties provided by how the Honorable Court of Appeals arrived at the
law, and to jointly and solidarily pay the heirs of the said conclusion that there are no other "BADJING
victim the amount of P50,000.00 as indemnity and AMADO" and/or "BADJING AND AMADO" in the
P50,000.00 as moral damages. barangay absent any proof to that effect from the
prosecution.22 (Underscoring in the original)
SO ORDERED.19 (Italics in the original)
The petition is impressed with merit.
Hence, the present Petition20 raising the following issues:
The trial court relied on the dying declaration of the victim as
recounted by his daughter Mirasol and corroborated by his son
I Arnel.
WHETHER OR NOT THE IDENTIT[IES] OF THE A dying declaration is admissible as evidence if the following
ACCUSED-APPELLANTS AS THE ALLEGED circumstances are present: (a) it concerns the cause and the
ASSAILANT HAS BEEN ADEQUATELY surrounding circumstances of the declarant's death; (b) it is
ESTABLISHED AS PER EVIDENCE ON RECORD? made when death appears to be imminent and the declarant is
under a consciousness of impending death; (c) the declarant
II would have been competent to testify had he or she survived;
and (d) the dying declaration is offered in a case in which the
WHETHER OR NOT THE IDENTIT[IES] OF THE subject of inquiry involves the declarant's death. 23
ACCUSED-APPELLANTS HAD BEEN
ESTABLISHED BY PROOF BEYOND REASONABLE There is no dispute that the victim's utterance to his children
DOUBT?21 (Emphasis and underscoring supplied) related to the identities of his assailants. As for the victim's
consciousness of impending death, it is not necessary to prove
Petitioners argue: that he stated that he was at the brink of death; it suffices that,
judging from the nature and extent of his injuries, the
seriousness of his condition was so apparent to him that it may
With due respect, herein petitioners disagree with the safely be inferred that such ante mortem declaration was made
holding of the Honorable Court of Appeals that "It is under consciousness of an impending death.24 The location of
not necessary that the victim further identify that the victim's two gunshot wounds, his gasping for breath, and
"Badjing" was in fact Jesus Geraldo or that "Amado" his eventual death before arriving at the hospital meet this
was Amado Ariate" because, [so petitioners contend], requirement.25
it is the obligation of the prosecution to establish
with moral certainty that indeed the persons they
42
It has not been established, however, that the victim would WHEREFORE, the petition is GRANTED. The Decision of the
have been competent to testify had he survived the attack. Court of Appeals dated June 30, 2006 affirming with
There is no showing that he had the opportunity to see his modification the Decision of Branch 41 of the Surigao del Sur
assailant. Among other things, there is no indication whether Regional Trial Court is REVERSED and SET ASIDE.
he was shot in front, the post-mortem examination report Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED
having merely stated that the points of entry of the wounds of the charge of Homicide for failure of the prosecution to
were at the "right lumbar area" and the "right iliac area."26 establish their guilt beyond reasonable doubt.
"Lumbar" may refer to "the loins" or "the group of vertebrae
lying between the thoracic vertebrae and the sacrum,"27 or to Let a copy of this Decision be furnished the Director of the
"the region of the abdomen lying on either side of the umbilical Bureau of Corrections, Muntinlupa City who is directed to
region and above the corresponding iguinal." 28 "Iliac" relates to cause the immediate release of petitioners unless they are
the "ilium," which is "one of the three bones composing either being lawfully held for another cause, and to inform this Court
lateral half of the pelvis being in man broad and expanded of action taken within ten (10) days from notice hereof.
above and narrower below where it joins with the ischium and
pubis to form part of the actabulum."29
SO ORDERED.
At all events, even if the victim's dying declaration were
admissible in evidence, it must identify the assailant with
certainty; otherwise it loses its significance.30
43
Baguio, in Civil Case No. 2493-R, a case for recovery of Likewise, the plaintiff is ordered to:
possession and damages. Also assailed is CA Resolution 2
dated November 28, 2000. (a) pay the defendant in the total sum of P20,000.00
for moral and actual damages;
On February 27, 1992, Simeon Prudencio (respondent) filed a
complaint for recovery of possession and damages against (b) pay the defendant P20,000.00 in Attorney’s fees
petitioner with the RTC Baguio alleging that: he is the owner of and P3,300.00 in appearance fees;
a two-storey residential house located at No. 61 Forbes Park
National Reservation near Department of Public Service (DPS)
compound, Baguio City; such property was constructed solely (c) pay the costs of this suit.4
from his own funds and declared in his name under Tax
Declaration No. 47048; he commenced the construction of said The RTC found the following matters as conclusive: that
house in 1972 until its completion three years later; when the petitioner’s father was an allocatee of the land on which the
second floor of said house became habitable in 1973, he subject house was erected, as one of the lowly-paid
allowed petitioner’s parents, Florentino (now deceased) and government employees at that time when then Mayor Luis
Susan Parel, to move therein and occupy the second floor Lardizabal gave them the chance to construct their own house
while the construction of the ground floor was on-going to on said reservation; that respondent failed to show proof of any
supervise the construction and to safeguard the materials; contract, written or oral, express or implied, that the late
when the construction of the second floor was finished in 1975, Florentino and his family stayed on the house not as co-owners
respondent allowed petitioner’s parents and children to transfer but as mere lessees, nor any other proof that would clearly
and temporarily reside thereat; it was done out of sheer establish his sole ownership of the house; and, that the late
magnanimity as petitioner’s parents have no house of their own Florentino was the one who gathered the laborers for the
and since respondent’s wife is the older sister of Florentino, construction of the house and paid their salaries. Thus, the
petitioner’s father; in November 1985, respondent wrote RTC ruled that co-ownership existed between respondent and
Florentino a notice for them to vacate the said house as the petitioner’s father, Florentino.
former was due for retirement and he needed the place to
which petitioner’s parents heeded when they migrated to U.S. The RTC concluded that respondent and petitioner’s father
in 1986; however, without respondent’s knowledge, petitioner agreed to contribute their money to complete the house; that
and his family unlawfully entered and took possession of the since the land on which said house was erected has been
ground floor of respondent’s house; petitioner’s refusal to allocated to petitioner’s father, the parties had the
vacate the house despite repeated demands prompted understanding that once the house is completed, petitioner’s
respondent to file the instant action for recovery of possession. father could keep the ground floor while respondent the second
Respondent also asked petitioner for a monthly rental of floor; the trial court questioned the fact that it was only after 15
P3,000.00 from April 1988 and every month thereafter until the years that respondent asserted his claim of sole ownership of
latter vacates the said premises and surrender possession the subject house; respondent failed to disprove that
thereof; and for moral and exemplary damages, attorney’s fees petitioner’s father contributed his own funds to finance the
and cost of suit. construction of the house; that respondent did not question (1)
the fact that it was the deceased Florentino who administered
Petitioner filed his Answer with Counterclaim alleging that: his the construction of the house as well as the one who supplied
parents are the co-owners of the said residential house, i.e., the materials; and (2) the fact that the land was in Florentino’s
the upper story belongs to respondent while the ground floor possession created the impression that the house indeed is
pertains to petitioner’s parents; he is occupying the ground jointly owned by respondent and Florentino.
floor upon the instruction of his father, Florentino, with
respondent’s full knowledge; his parents spent their own The RTC did not give credence to the tax declaration as well
resources in improving and constructing the said two-storey as the several documents showing the City Assessor’s
house as co-owners thereof; the late Florentino was an assessment of the property all in respondent’s name since tax
awardee of the land on which the house stands and as a co- declarations are not conclusive proof of ownership. It rejected
owner of the house, he occupied the ground floor thereof; the the affidavit executed by Florentino declaring the house as
demand to vacate was respondent’s attempt to deprive owned by respondent saying that the affidavit should be read in
petitioner’s parents of their rights as co-owner of the said its entirety to determine the purpose of its execution; that it was
house; that respondent had filed ejectment case as well as executed because of an advisement addressed to the late
criminal cases against them involving the subject house which Florentino by the City Treasurer concerning the property’s tax
were all dismissed. Petitioner asked for the dismissal of the assessment and Florentino, thought then that it should be the
complaint and prayed for damages and attorney’s fees. respondent who should pay the taxes; and that the affidavit
cannot be accepted for being hearsay.
After trial on the merits, the RTC rendered a Decision 3 dated
December 15, 1993, the dispositive portion of which reads: Aggrieved by such decision, respondent appealed to the CA. In
a Decision dated March 31, 2000, the CA reversed the trial
WHEREFORE, premises considered, the Court hereby court and declared respondent as the sole owner of the subject
declares that the house erected at No. 61 DPS Compound, house and ordered petitioner to surrender possession of the
Baguio City is owned in common by the late Florentino Parel ground floor thereof to respondent immediately. It also ordered
and herein plaintiff Simeon Prudencio and as such the plaintiff petitioner to pay respondent a monthly rental of P2,000.00 for
cannot evict the defendant as heirs of the deceased Florentino use or occupancy thereof from April 1988 until the former
Parel from said property, nor to recover said premises from actually vacates the same and the sum of P50,000.00 as
herein defendant. attorney’s fees and cost of suit.
44
The CA found as meritorious respondent’s contention that trial court and that the court shall consider no evidence which
since petitioner failed to formally offer in evidence any has not been formally offered, he maintains that the said rule is
documentary evidence, there is nothing to refute the evidence not absolute, citing the case of Bravo, Jr. v. Borja; 6 that his
offered by respondent. It ruled that the trial court’s statement documentary evidence which were not formally offered in
that "defendants’ occupancy of the house is due to a special evidence were marked during the presentation of the testimony
power of attorney executed by his parents most specially the of petitioner’s witnesses and were part of their testimonies; that
deceased Florentino Parel who is in fact a co-owner of said these evidence were part of the memorandum filed by him
building" is wanting of any concrete evidence on record; that before the trial court on July 12, 1993.
said power of attorney was never offered, hence, could not be
referred to as petitioner’s evidence to support his claim; that Petitioner insists that even in the absence of the documentary
except for the bare testimonies of Candelario Regua, the evidence, his testimony as well as that of his witnesses
carpenter-foreman, that it was Florentino who constructed the substantiated his claim of co-ownership of the subject house
house and Corazon Garcia, the former barangay captain, who between his late father and respondent as found by the trial
testified that the lot was allocated to petitioner’s father, there court.
was no supporting document which would sufficiently establish
factual bases for the trial court’s conclusion; and that the rule
on offer of evidence is mandatory. Petitioner argues that the CA erred in finding the affidavit of
petitioner’s father declaring respondent as owner of the subject
house as conclusive proof that respondent is the true and only
The CA found the affidavit dated September 24, 1973 of owner of the house since the affidavit should be read in its
Florentino, petitioner’s father, stating that he is not the owner of entirety to determine the purpose for which it was executed.
the subject house but respondent, as conclusive proof of
respondent’s sole ownership of the subject house as it is a
declaration made by Florentino against his interest. It also Petitioner further contends that since he had established his
found the tax declarations and official receipts representing father’s co-ownership of the subject house, respondent has no
payments of real estate taxes of the questioned property legal right to eject him from the property; that he could not be
covering the period 1974 to 1992 sufficient to establish compelled to pay rentals for residing in the ground floor of the
respondent’s case which constitute at least proof that the subject house; that respondent should bear his own expenses
holder has a claim of title over the property. and be adjudged liable for damages which petitioner sustained
for being constrained to litigate.
Petitioner’s motion for reconsideration was denied in a
Resolution dated November 28, 2000.1avvphil.net The principal issue for resolution is whether petitioner was able
to prove by preponderance of evidence that his father was a
co-owner of the subject two-storey residential house.
Hence, the instant petition for review on certiorari with the
following Assignment of Errors:
The issue raised by petitioner is mainly factual in nature. In
general, only questions of law are appealable to this Court
1. THE HONORABLE COURT OF APPEALS GRAVELY under Rule 45. However, considering that the findings of the
ERRED IN FINDING RESPONDENT AS THE OWNER OF RTC and CA are contradictory, the review of the case is in
THE BUILDING AT 61 FORBES PARK NATIONAL order.7
RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY,
NOTWITHSTANDING THE FINDING OF THE REGIONAL
TRIAL COURT OF CO-OWNERSHIP BETWEEN THE LATE We agree with the CA that respondent had shown sufficient
FLORENTINO PAREL AND RESPONDENT; evidence to support his complaint for recovery of possession of
the ground floor of the subject house as the exclusive owner
thereof. Respondent presented the affidavit dated September
2. THE HONORABLE COURT OF APPEALS GRAVELY 24, 1973 executed by Florentino and sworn to before the
ERRED IN ORDERING PETITIONER TO SURRENDER Assistant City Assessor of Baguio City, G.F. Lagasca, which
POSSESSION OF THE GROUND FLOOR OF THE SUBJECT reads:
BUILDING TO RESPONDENT;
I, FLORENTINO PAREL, 42 years of age, employee, and
3. THE HONORABLE COURT OF APPEALS GRAVELY residing at Forbes Park, Reservation No. 1, after having been
ERRED IN ORDERING PETITIONER TO PAY RESPONDENT sworn to according to law depose and say:
P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE
SUBJECT PREMISES FROM APRIL 1988 UNTIL
PETITIONER ACTUALLY VACATES THE SAME; That he is the occupant of a residential building located at
Forbes Park, Reservation No. 1, Baguio City which is the
subject of an advicement addressed to him emanating from the
4. THE HONORABLE COURT OF APPEALS GRAVELY Office of the City Assessor, Baguio City, for assessment and
ERRED IN ORDERING PETITIONER TO PAY TO declaration for taxation purposes;
RESPONDENT P50,000.00 ATTORNEY’S FEES AND COSTS
OF SUIT;
That I am not the owner of the building in question;
5. THE HONORABLE COURT OF APPEALS ERRED IN
DENYING PETITIONER’S MOTION FOR That the building in question is owned by Mr. Simeon B.
RECONSIDERATION. 5 Prudencio who is presently residing at 55 Hyacinth, Roxas
District, Quezon City.
Petitioner concedes that while his former counsel failed to
make a formal offer of his documentary evidence before the Further, affiant say not.8 (Underscoring supplied)
45
Section 38 of Rule 130 of the Rules of Court provides: Respondent having established his claim of exclusive
ownership of the subject property, it was incumbent upon
SEC. 38. Declaration against interest. – The declaration made petitioner to contravene respondent’s claim. The burden of
by a person deceased, or unable to testify, against the interest evidence shifted to petitioner to prove that his father was a co-
of the declarant, if the fact asserted in the declaration was at owner of the subject house.
the time it was made so far contrary to the declarant's own
interest, that a reasonable man in his position would not have We held in Jison v. Court of Appeals, to wit:18
made the declaration unless he believed it to be true, may be
received in evidence against himself or his successors-in- xxx Simply put, he who alleges the affirmative of the issue has
interest and against third persons. 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
The theory under which declarations against interest are civil case, once plaintiff makes out a prima facie case in his
received in evidence notwithstanding they are hearsay is that favor, the duty or the burden of evidence shifts to defendant to
the necessity of the occasion renders the reception of such controvert plaintiff's prima facie case, otherwise, a verdict must
evidence advisable and, further that the reliability of such be returned in favor of plaintiff. Moreover, in civil cases, the
declaration asserts facts which are against his own pecuniary party having the burden of proof must produce a
or moral interest.9 preponderance of evidence thereon, with plaintiff having to rely
on the strength of his own evidence and not upon the
The affiant, Florentino, who died in 1989 was petitioner’s father weakness of the defendant’s. The concept of "preponderance
and had adequate knowledge with respect to the subject of evidence" refers to evidence which is of greater weight, or
covered by his statement. In said affidavit, Florentino more convincing, that which is offered in opposition to it; at
categorically declared that while he is the occupant of the bottom, it means probability of truth.19
residential building, he is not the owner of the same as it is
owned by respondent who is residing in Quezon City. It is safe In this case, the records show that although petitioner’s
to presume that he would not have made such declaration counsel asked that he be allowed to offer his documentary
unless he believed it to be true, as it is prejudicial to himself as evidence in writing, he, however, did not file the same. 20 Thus,
well as to his children’s interests as his heirs. 10 A declaration the CA did not consider the documentary evidence presented
against interest is the best evidence which affords the greatest by petitioner. Section 34 of Rule 132 of the Rules of Court
certainty of the facts in dispute.11 Notably, during Florentino’s provides:
lifetime, from 1973, the year he executed said affidavit until
1989, the year of his death, there is no showing that he had Section 34. Offer of evidence. – The court shall consider no
revoked such affidavit even when a criminal complaint for evidence which has not been formally offered. The purpose for
trespass to dwelling had been filed by respondent against him which the evidence is offered must be specified.
(Florentino) and petitioner in 1988 regarding the subject house
which the trial court dismissed due to the absence of evidence
showing that petitioner entered the house against the latter’s A formal offer is necessary because it is the duty of a judge to
will and held that the remedy of respondent was to file an rest his findings of facts and his judgment only and strictly upon
action for ejectment;12 and even when a complaint for unlawful the evidence offered by the parties to the suit. 21 It is a settled
detainer was filed against petitioner and his wife also in 1988 rule that the mere fact that a particular document is identified
which was subsequently dismissed on the ground that and marked as an exhibit does not mean that it has thereby
respondent’s action should be an accion publiciana which is already been offered as part of the evidence of a party.22
beyond the jurisdiction of the Municipal Trial Court.13
Petitioner insists that although his documentary evidence were
Moreover, the building plan of the residential house dated not formally offered, the same were marked during the
January 16, 1973 was in the name of respondent and his wife. presentation of the testimonial evidence, thus it can properly be
It was established during petitioner’s cross-examination that taken cognizance of relying in Bravo, Jr. v. Borja.23
the existing structure of the two-storey house was in
accordance with said building plan.14 Such reliance is misplaced. In Bravo Jr., we allowed evidence
on minority by admitting the certified true copy of the birth
Notably, respondent has been religiously paying the real estate certificate attached to a motion for bail even if it was not
property taxes on the house declared under his name since formally offered in evidence. This was due to the fact that the
1974.15 In fact, petitioner during his cross-examination birth certificate was properly filed in support of a motion for bail
admitted that there was no occasion that they paid the real to prove petitioner’s minority which was never challenged by
estate taxes nor declared any portion of the house in their the prosecution and it already formed part of the records of the
name.16 case. The rule referred to in the Bravo case was Section 7 of
Rule 133 of the Rules of Court which provides:
We agree with the CA that while tax receipts and declarations
are not incontrovertible evidence of ownership, they constitute Section 7. Evidence on motion.- When a motion is based on
at least proof that the holder has a claim of title over the facts not appearing of record, the court may hear the matter on
property.17 The house which petitioner claims to be co-owned affidavits or depositions presented by the respective parties,
by his late father had been consistently declared for taxation but the court may direct that the matter be heard wholly or
purposes in the name of respondent, and this fact, taken with partly on oral testimony or depositions.
the other circumstances above-mentioned, inexorably lead to
the conclusion that respondent is the sole owner of the house and not Section 34 of Rule 132 of the Rules of Court which is
subject matter of the litigation. the one applicable to the present case.
46
Even assuming arguendo that the documentary evidence of Costs against petitioner.
petitioner should be considered in his favor, the evidence
showing that respondent had filed civil and criminal cases SO ORDERED.
against petitioner which were dismissed as well as the alleged
Special Power of Attorney of petitioner’s parents whereby they
authorized petitioner to stay in the ground floor of the house,
did not establish co-ownership of Florentino and respondent of
the subject house.
Petitioner himself testified that it was his father who saw the
progress of the construction and purchased the materials to be
used; 31 and as a young boy he would follow-up some
deliveries upon order of his father 32 and never saw respondent
in the construction site. The fact that not one of the witnesses
saw respondent during the construction of the said house does
not establish that petitioner’s father and respondent co-owned
the house.
We also find that the CA did not err in ordering petitioner to pay
respondent being the sole owner of the subject house a
monthly rental of P2,000.00 from April 1988, the date of the
extra-judicial demand, until petitioner actually vacates the
subject house. Although the CA made no ratiocination as to
how it arrived at the amount of P2,000.00 for the monthly
rental, we find the same to be a reasonable compensation for
the use of the ground floor of the subject house which consists
of a living room, a dining room, a kitchen and three bedrooms.
The rental value refers to the value as ascertained by proof of
what the property would rent or by evidence of other facts from
which the fair rental value may be determined. 33
47
husband, LEOPOLDO HONG and GENOVEVA LITANIA, No. 5729, thus, transferring to the latter absolute ownership of
Respondents. said parcel of land.
48
seeking the cancellation of the OCTs in the name of petitioner was petitioner Perfecta’s tenant on the subject lots since 1947
Perfecta or, alternatively, the reconveyance by petitioner and that respondents never actually occupied the said
spouses of the subject lots to respondents, plus award for properties. The RTC observed that it was highly questionable
damages. The Rural Bank of Bayawan, Inc. was impleaded as and contrary to human experience that respondents waited
a defendant in the Complaint since petitioner spouses nine long years after their ejection from the subject lots in 1965
mortgaged the subject lots in its favor as security for a loan in before taking any legal step to assert their rights over the
the amount of P42,227.50. However, the bank was later same.
dropped as a party after the aforesaid loan was settled.
The RTC further subscribed to the testimony of Perfecta that
Petitioner spouses countered in their Answer to the Complaint the Confirmation of Extrajudicial Partition was executed by
that, by virtue of the Deed of Partition dated 5 April 1937, the Castor solely to accommodate Susana, enabling her to obtain
heirs of both Bernardo and Tranquilina took exclusive a bank loan using the subject lots as collateral. It noted that
possession of their respective shares in the inheritance. Castor Susana did not bother to apply for the issuance of title to the
fully possessed the lots covered by Tax Declarations No. 7143, subject lots in her name. Contrarily, it was Perfecta who
No. 7421 and No. 7956, after his co-heirs sold to him their applied for and obtained title to the subject lots, which,
shares therein. In 1962, Castor sold to petitioner Perfecta the surprisingly, respondents were not even aware of. The RTC
lots covered by Tax Declarations No. 7421 and No. 7956, found that the contemporaneous and subsequent acts of the
which corresponded to the subject lots in the Complaint. parties after the execution of the Confirmation of Extrajudicial
Following the sale, petitioner Perfecta took possession of the Partition evidently demonstrated their intention to merely
subject lots and filed with the Bureau of Lands an application accommodate Susana in her loan application. Hence, the RTC
for the issuance of title over the same. The Bureau issued free concluded that the Confirmation of Extrajudicial Partition was a
patent titles over the subject lots in favor of petitioner Perfecta simulated contract which was void and without any legal effect.
and, by virtue thereof, she was able to secure on 9 October
1962, OCTs No. FV-4976, No. FV-4977, and No. FV-4978 in Without seeking a reconsideration of the above RTC Decision,
her name. respondents challenged the same by way of appeal before the
Court of Appeals, docketed as CA-G.R. CV No. 66873.
Petitioner spouses asserted that the Confirmation of
Extrajudicial Partition dated 5 August 1960 involving the On 8 March 2007, the Court of Appeals rendered the assailed
subject lots was a nullity since said properties were never Decision in favor of respondents, the decretal portion of which
owned nor adjudicated in favor of Susana, respondents’ provides:
predecessor-in-interest. Castor and Susana executed the
Confirmation of Extrajudicial Partition merely to accommodate
the latter who then needed security for the loan she was trying WHEREFORE, the assailed decision is REVERSED AND SET
to obtain from the Rural Bank of Dumaguete City. Respondents ASIDE and a new one entered ORDERING [herein petitioner
would not be able to deny the said accommodation spouses] and/or their heirs, assigns and representatives as
arrangement, given that neither Susana nor respondents follows:
actually possessed the subject lots or applied for titles thereto.
Respondents did not even know that the subject lots were 1. To reconvey to [herein respondents] the
divided into three lots after a Government survey. If Susana possession and title to the litigated parcels of land.
and respondents paid realty taxes for the subject lots, it was
only to convince the Rural Bank of Dumaguete to renew their 2. Upon reconveyance of the litigated properties, the
loan from year to year, secured as it was by the mortgage on Register of Deeds of Dumaguete City is ordered to
the subject lots. Thus, petitioner spouses posited that no cancel Certificate of Title No. 4877 (sic), 4976 and
ownership could then be transferred to respondents after 4978 and to issue a new certificate to [respondents] or
Susana’s death. their successors in interest.
Trial in Civil Case No. 6111 thereafter ensued before the 3. With costs against [petitioner spouses].15
RTC.13
49
respondents Justina and Genoveva, who had been paying for lots purportedly illegally usurped by petitioner spouses who
the realty taxes on the subject lots since 1937. succeeded in having the same titled in the name of petitioner
Perfecta. Respondent Justina testified in open court that the
Petitioner spouses filed a Motion for Reconsideration 16 of the subject lots were inherited by her and co-respondent
foregoing Decision, but it was denied by the Court of Appeals Genoveva’s mother, Susana, from their grandparents,
in a Resolution17 dated 3 September 2007. Bernardo and Tranquilina.20 As proof of Susana’s ownership of
the subject lots, respondents presented the Confirmation of
Extrajudicial Partition executed on 5 August 1960 by Castor
Petitioner spouses filed the instant Petition, raising the and Susana. In said document, Castor ostensibly recognized
following issues for the Court’s consideration: and confirmed Susana’s ownership and possession of the
subject lots.21 Tax declarations22 covering the subject lots in
I. the names of Susana and respondents were also offered to the
court a quo to lend support to respondents’ claims of
WHETHER [OR NOT] THE HONORABLE COURT OF ownership.
APPEALS ACTED IN ACCORDANCE WITH LAW IN RULING
THAT EXTRANEOUS EVIDENCE IN THE FORM OF AN On the other hand, to prove their entitlement to the subject lots,
AFFIDAVIT, THE "CONFIRMATION OF EXTRAJUDICIAL petitioner spouses presented before the RTC the Deed of
PARTITION," MAY BE ADMITTED IN EVIDENCE TO VARY Partition23 entered into by the heirs of spouses Bernardo and
THE TERMS OF A JUDICIALLY DECLARED VALID Tranquilina on 5 April 1937. By virtue thereof, Castor acquired
AGREEMENT ENTITLED "DEED OF PARTITION"? through sale the shares of his co-heirs in the subject lots.
Petitioner Perfecta testified before the trial court that right after
II. the execution of said Deed, she and her father, Castor,
assumed possession of the subject lots, planting coconuts,
rice, and corn thereon.24 She additionally testified that realty
WHETHER [OR NOT] THE HONORABLE COURT OF taxes on the subject lots had since been paid by Castor and,
APPEALS COMMITTED A LEGAL ERROR IN NOT subsequently, by her.25 Possession of the subject lots by
DISMISSING THE COMPLAINT ON THE GROUND OF RES Castor and petitioner spouses was corroborated by the
JUDICATA? testimony of Luciana Navarra, who insisted that respondents
never occupied the said lots.26 Finally, petitioner spouses
III. presented OCTs No. FV-4976, No. FV-4977, and No. FV-4978,
covering the subject lots, issued by the Registry of Deeds for
the Province of Negros Oriental on 9 October 1962 in the name
WHETHER [OR NOT] THE COMPLAINT FILED BY THE
of petitioner Perfecta.
RESPONDENTS SHOULD BE DISMISSED ON THE
GROUND OF FORUM-SHOPPING?
After a careful evaluation of the evidence adduced by the
parties in the instant case, the Court rules in favor of petitioner
IV.
spouses.
51
And even if respondents’ Complaint was filed on time, the
Court would still rule that respondents failed to satisfactorily
prove that they were in possession of the subject lots prior to
the grant of free patents and issuance of Torrens titles over the
same in favor petitioner Perfecta. The bare testimony of
respondent Justina that Susana had been in the peaceful and
undisturbed possession of the subject lots since 1937 up to the
time of her death in 1965 was entirely bereft of substantiation
and details. No information was provided as to how said
possession of the subject lots was actually exercised or
demonstrated by Susana. In contrast, the possession of the
subject lots by Castor, and later on by petitioner spouses, was
established not just by the testimony of petitioner Perfecta, but
was corroborated by the testimony of Luciana Navarra, whose
husband was a tenant working on the subject lots. Petitioner
spouses possessed the subject lots by planting thereon
coconuts, rice, and corn - a claim which respondents were
unable to refute.
SO ORDERED.
52
Cristobal Ducat subsequently declared the property in his
name for taxation purposes.9
This resolves the petition for review on certiorari under Rule 45 On December 17, 1998, after trial on the merits, the MTC of La
of the Rules of Court, praying that the Decision1 of the Court of Trinidad rendered judgment in favor of the Spouses Cristobal
Appeals (CA) dated October 30, 2002, and the CA Resolution2 Ducat and Flora Kiong, disposing as follows:
dated July 3, 2003, denying petitioner's motion for
reconsideration, be reversed and set aside. WHEREFORE, the complaint is hereby ordered dismissed, for
failure of the plaintiffs to prove their cause of action by
The factual antecedents of the case are accurately competent and preponderant evidence. On the other hand, the
summarized by the CA as follows. compulsory counterclaims alleged by the defendants in their
Answer are likewise denied, for lack of merit. Costs against
plaintiffs.
The subject matter of the instant action is a parcel of
agricultural land with an area of 4,992 square meters located at
Barrio Buyagan, Poblacion, La Trinidad, Benguet [with an SO ORDERED.11
assessed value of P15,970.003] which, as shown by the
records, was previously described as Lot No. 4 in a Survey Plaintiffs appealed the ruling of the MTC to the court a quo
Plan (Psu-206496) prepared for Agustin Ulep on April 4, 1964 (RTC, Branch 10). Once again, the Spouses Cristobal Ducat
by Private Land Surveyor Mariano D. Singson which was and Flora Kiong prevailed as on September 30, 1999, a
approved by the Bureau of Lands on June 3, 1964.4 Decision was rendered affirming in toto the MTC Judgment. 12
On June 1, 1964, prior to the approval of the Survey Plan, Plaintiffs' subsequent Motion for Reconsideration was denied
Agustin Ulep and herein petitioner Cristobal Ducat executed an [by the] court a quo in an Order issued on December 6, 1999
Agreement whereby the latter agreed and undertook, to cause on the ground that the same was filed beyond the reglementary
and perform the conduct of all the necessary procedures for period provided under Rule 37 of the Rules on Civil Procedure.
the registration and acquisition of title over several parcels of xxx
land possessed and occupied by the former in the concept of
an owner, which include the land in dispute. 5 Before Cristobal Thereafter, plaintiffs filed a Motion to Resolve Motion for
Ducat was able to accomplish his task of acquiring titles over Reconsideration on the Merits.13
the lands for and in behalf of Agustin Ulep, the latter died. After
the death of Agustin Ulep, his son Cecilio Ulep took over as
administrator of the properties.6 On May 24, 2000, the court a quo issued the herein assailed
Resolution reconsidering its September 30, 1999 Decision and,
accordingly, reversed the December 7, 1998 MTC Judgment,
Cristobal Ducat continued working to acquire titles for the lands and ordered the Spouses Cristobal Ducat and Flora Kiong to
of Agustin Ulep. Thereafter, the land in dispute (Lot No. 4) was reconvey the disputed property to the plaintiffs and to pay the
reflected and now referred to as Lot No. 22 in an Amended latter damages and attorney's fees.14
Survey Plan (Psu-206496-Amd) prepared for Cristobal Ducat,
et al., on November 28-30, 1981 by the same Private Land
Surveyor, Geodetic Engineer Mariano D. Singson. This was The spouses Cristobal Ducat and Flora Kiong, herein
likewise approved by the Bureau of Lands on October 1, respondents, then filed a petition for review with the CA,
1982.7 questioning the Resolution of the RTC dated May 24, 2000.
The CA ruled in favor of respondents, holding that petitioners
failed to discharge the burden of proof to establish that
On September 16, 1984, Cristobal Ducat filed an Application respondents wrongfully or erroneously acquired title over the
for Free Patent over the land with the Bureau of Lands of La disputed property. On October 30, 2002, the CA promulgated
Trinidad (Records, p. 173). The application was granted and the Decision subject of this petition, disposing as follows:
accordingly, on November 14, 1984, the Office of the Register
of Deeds of Benguet under the National Land Titles and Deeds
Registration issued OCT No. P-1390 registering the land with WHEREFORE, premises considered, the petition is GRANTED
an area of "49 arcas and 92 centares" (Lot No. 22) in the and the assailed Resolution is hereby REVERSED and SET
names of the Spouses Cristobal Ducat and Flora Kiong. 8
53
ASIDE. The decision of the MTC of La Trinidad is (3) when the inference made by the Court of Appeals
REINSTATED. from its findings of fact is manifestly mistaken, absurd,
or impossible;
SO ORDERED.15
(4) when there is grave abuse of discretion in the
Petitioners moved for reconsideration, but the CA denied said appreciation of facts;
motion per Resolution dated July 3, 2003.
(5) when the appellate court, in making its findings,
Hence, herein petition submitting the following questions for goes beyond the issues of the case, and such findings
resolution, to wit: are contrary to the admissions of both appellant and
appellee;
(a) Did the respondents use Exhibit "D-2", the
tampered Waiver of Rights in order to obtain title over (6) when the judgment of the Court of Appeals is
the disputed lot? premised on a misapprehension of facts;
(b) Can respondents' reliance on Exhibit "10", the (7) when the Court of Appeals fails to notice certain
Transfer of Rights and Improvements executed by relevant facts which, if properly considered, will justify
Cecilio Ulep and Dionisio Ulep without the a different conclusion;
participation of the heirs by Bernardo Ulep, justify the
respondents' act of obtaining title over the subject (8) when the findings of fact are themselves
property? conflicting;
(c) In the assessment of the validity of a document to (9) when the findings of fact are conclusions without
transfer a right (Exhibit "10"), is the determination of citation of the specific evidence on which they are
the RTC of the existence or non-existence of an extra- based; and
judicial settlement among heirs considered evidence
on appeal? (10) when the findings of fact of the Court of Appeals
are premised on the absence of evidence but such
(d) Whether or not documentary evidence that is not findings are contradicted by the evidence on
identified, authenticated and formally offered record.(Emphasis supplied) 19
constitutes evidence at all?
This case falls within exceptions (1) and (7).
(e) Did the Court of Appeals commit a very grave
error when it reversed the Resolution of the RTC and After examination of the evidence adduced, the Court finds no
reinstated the decision of the MTC?16 merit to the petition.
It is well-settled that in order for an action for reconveyance Petitioners insist that Exhibit "D-2,"20 the Waiver of Rights and
based on fraud to succeed, the party seeking reconveyance Quitclaim containing some erasures and alterations, is proof of
must prove by clear and convincing evidence his title to the fraud perpetrated by respondents to obtain title to the land
the property and the fact of fraud.17 in dispute. Without the erasures and alterations, paragraph 4 of
said document stated that Lot 4 and an undivided 6,346-square
Clearly, the primordial issue in the present petition is whether meter portion of Lot 3 shall belong to and shall be titled in the
the CA committed an error in ruling that petitioners had failed name of Bernardo Ulep. In Exhibit "D-2," because of some
to prove their allegation that respondents fraudulently caused erased portions, the import of paragraph 4 thereof changed,
the titling of the subject property in their names. such that only Lot 3 shall belong to and shall be titled in the
name of Bernardo Ulep. As the RTC aptly pointed out in its
The issue is mainly factual and, as a general rule, questions of Resolution dated May 24, 2000, Exhibit "D-2," even with its
fact cannot be raised in a petition for review on certiorari under erasures and alterations, did not dispose of Lot 4 in favor
Rule 45 of the Rules of Court. However, as held in Republic v. of respondents.
Enriquez,18 to wit:
Petitioners aver that by virtue of Exhibit "D-2," respondent
The general rule is that questions of fact are beyond the Cristobal Ducat was able to cause the amendment of the
province of Rule 45 of the Rules of Court. Said rule, however, survey plan, making it appear that Lot 4, later designated as
admits of certain exceptions, to wit: Lot 22 in the amended survey, had no claimant. The Court
notes however, that even Cecilio Ulep and Dionisio Ulep, co-
heirs and siblings of Bernardo Ulep, executed an affidavit
(1) when the factual findings of the Court of stating that they were requesting the amendment of Survey
Appeals and the trial court are contradictory; Plan Psu-206496 "in order to delineate the roads-right-of-way,
and indicate certain actual occupants of the land who may be
(2) when the findings are grounded entirely on entitled to their respective lots."21 This affidavit negates
speculations, surmises, or conjectures; petitioners' claim that the amendment of the survey plan was
effected solely by respondents to effect the fraudulent titling of
the property in the latter’s name.
54
Moreover, even assuming that Exhibit "D-2" was instrumental Res. Certificate No. __________ Province of
in making it appear that Lot 4 or Lot 22 had no claimant, said Benguet
document could not have been the basis for respondents' claim Dated _____________________
of ownership over the property in dispute. Respondents had to Municipality of La Trinidad
present other clear and convincing evidence to establish Issued at ___________________
ownership of said lot in the land registration proceedings.
Personally appeared before me, the undersigned official,
Evidently, Exhibit "D-2" was not the document which proved Cecilio J. Ulep & Bernardo J. Ulep who, being duly sworn
respondent's ownership of the land in dispute. The existence of according to law, depose and says:
alterations and erasures on said document, whether caused by
respondents or petitioners' own predecessors-in-interest, is That on the 5th day of March, 1981, he sold/donated to
immaterial, as it does not appear to be the basis for the grant Cristobal Ducat, a resident of the Municipality of La Trinidad,
of the certificate of title in favor of respondents. Province of Benguet, the real property situated in the Barrio of
Buyagan, Poblacion, Municipality of La Trinidad, Provincia of
The MTC is correct in holding that the more important Benguet, and described in the records of the Provincial
document which proved respondents' ownership of the subject Treasurer's Office, Province of Benguet under Tax No. 4990
property is Exhibit "15,"22 the Affidavit of Transfer of Real and that the said Cristobal Ducat is now the legal owner of the
Property, subscribed and sworn to before the Deputy Provincial abovementioned real property.
and Municipal Assessor. Exhibit "15" is reproduced hereunder:
In testimony whereof he has hereunto affixed his signature.
Provincial Form No. 9
(signed) (signed)
AFFIDAVIT OF TRANSFER OF REAL PROPERTY Cecilio J. Ulep Bernardo J. Ulep
TRANSFEREE'S AFFIDAVIT
____________________
Signature of Trnasfer
Res. Certificate No. _________ Province of
Benguet
Subscribed and sworn to before me this (illegible) day of Oct.,
Dated ____________________ Municipality 1981.
of La Trinidad
Issued at __________________
Mathew L. Ticag
Deputy Prov'l. & Mun. Assessor
Personally appeared before me, the undersigned official,
Cristobal Ducat/(Name of Transferee) who, being duly sworn
according to law, depose and says: TAN-1886-760-6
Provincial Assessor, Deputy Assessor,
Mun. Treasurer, Mun. Mayor, Notary
That on the 5th day of March 1981, he
Public or any other person authorized
bought/inherited/received as donation from Cecilio J. Ulep & to administer oath.
Bernardo J. Ulep, a resident of the Municipality of La Trinidad,
Province of Benguet, the real property situated in the Barrio of
Buyagan, Poblacion, Municipality of La Trinidad, Province of The upper portion of Exhibit "15" contains the Transferee's
Benguet, and described in the records of the Provincial Affidavit executed by respondent Cristobal Ducat, stating that
Treasurer's Office, Province of Benguet, under Tax No. 4990 he bought the subject property from Cecilio Ulep and Bernardo
and that he is now the legal owner of the said real property. Ulep, while the lower portion contains the Transferor's
Affidavit executed by Cecilio Ulep and Bernardo Ulep,
stating that on the 5th day of March 1981, they
In testimony whereof he has hereunto affixed his signature. sold/donated subject property to Cristobal Ducat and said
person is now the legal owner of the same.
(signed)
Cristobal Ducat Signature of Transferee
Petitioners do not question the authenticity and due execution
of Exhibit "15," but argue that said document should not have
Subscribed and sworn to before me this [illegible] day of Oct. been admitted in evidence and given probative weight, as it
1981. was not offered by respondents. This claim is totally bereft of
merit. Respondents' Formal Offer of Documentary Exhibits 23
Mathew L. Ticag definitely included Exhibit "15," the entire Affidavit of Transfer
Deputy Prov'l. & Mun. Assessor of Real Property. It is further noted that respondents' Exhibit
"15" was first presented and offered by petitioners as their
Exhibit "I-19," to prove that it was one of the papers submitted
TAN-1886-760-6 by respondents to the Department of Environment and Natural
Provincial Assessor, Deputy Assessor,Mun. Treasurer, Mun. Resources in support of the application for titling of subject
Mayor, Notary property. The signature of Bernardo Ulep on said document
Public or any other person authorized was also properly identified, as shown by the testimony of
to administer oath. respondent Cristobal Ducat, to wit:
TRANSFEROR'S AFFIDAVIT
55
Q: You remember also if you submitted your right over the disputed lot to Cristobal Ducat, that is, Exhibit
application affidavit or transfer of real property "15," the Affidavit of Transfer of Real Property.
executed by you and Cecilio & Bernardo Ulep now
marked as Exh. "I-19"? It is also a settled jurisprudence that an issue cannot be raised
for the first time on appeal, as it would be offensive to the basic
A: Maybe because I wanted to have the papers rules of fair play, justice and due process.28 Thus, since the
completed. issue of whether the estate of the deceased Agustin Ulep has
been settled or not was raised by petitioners for the first time
xxxx on appeal before the RTC, this issue should not be given
consideration.
Atty. Bolislis:
In sum, the admission against the interest of Bernardo Ulep
goes against the theory of petitioners, and the evidence they
May we refer to Exh. "19" [meaning "I-19"] which is presented is sorely insufficient to overcome said admission.
the Affidavit of the transfer of real property dated 30th Thus, there is no proof that the titling of the subject property
day of July, 1981. was fraudulently obtained by respondents in their names.
A: Yes sir.
A: Yes sir.24
56
2006,4 whereupon the case was dismissed for insufficiency of
evidence.
57
Article 195. Subject to the provisions of the succeeding articles, (2) Any other means allowed by the Rules of Court
the following are obliged to support each other to the whole and special laws.
extent set forth in the preceding article:
The Rules on Evidence include provisions on pedigree. The
1. The spouses; relevant sections of Rule 130 provide:
2. Legitimate ascendants and descendants; SEC. 39. Act or declaration about pedigree. — The act or
declaration of a person deceased, or unable to testify, in
3. Parents and their legitimate children and the respect to the pedigree of another person related to him by
legitimate and illegitimate children of the latter; birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or
4. Parents and their illegitimate children and the declaration. The word "pedigree" includes relationship, family
legitimate and illegitimate children of the latter; and genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
5. Legitimate brothers and sisters, whether of the full relatives. It embraces also facts of family history intimately
or half-blood. connected with pedigree.
Article 196. Brothers and sisters not legitimately related, SEC. 40. Family reputation or tradition regarding pedigree. —
whether of the full or half-blood, are likewise bound to support The reputation or tradition existing in a family previous to the
each other to the full extent set forth in Article 194, except only controversy, in respect to the pedigree of any one of its
when the need for support of the brother or sister, being of age, members, may be received in evidence if the witness testifying
is due to a cause imputable to the claimant's fault or thereon be also a member of the family, either by
negligence. (emphasis and underscoring supplied) consanguinity or affinity. Entries in family bibles or other family
books or charts, engraving on rings, family portraits and the
Arhbencel’s demand for support, being based on her claim of like, may be received as evidence of pedigree.
filiation to petitioner as his illegitimate daughter, falls under
Article 195(4). As such, her entitlement to support from This Court's rulings further specify what incriminating acts are
petitioner is dependent on the determination of her filiation. acceptable as evidence to establish filiation. In Pe Lim v. CA, a
case petitioner often cites, we stated that the issue of paternity
Herrera v. Alba10 summarizes the laws, rules, and still has to be resolved by such conventional evidence as the
jurisprudence on establishing filiation, discoursing in relevant relevant incriminating verbal and written acts by the putative
part as follows: father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a
will, a statement before a court of record, or in any authentic
Laws, Rules, and Jurisprudence writing. To be effective, the claim of filiation must be made by
the putative father himself and the writing must be the writing of
Establishing Filiation the putative father. A notarial agreement to support a child
whose filiation is admitted by the putative father was
considered acceptable evidence. Letters to the mother vowing
The relevant provisions of the Family Code provide as follows:
to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with
ART. 175. Illegitimate children may establish their illegitimate the certificate of live birth, proved filiation. However, a student
filiation in the same way and on the same evidence as permanent record, a written consent to a father's operation, or
legitimate children. a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a
xxxx certificate of baptism nor family pictures are sufficient to
establish filiation. (emphasis and underscoring supplied)
ART. 172. The filiation of legitimate children is established by
any of the following: In the present case, Arhbencel relies, in the main, on the
handwritten note executed by petitioner which reads:
(1) The record of birth appearing in the civil register or
a final judgment; or Manila, Aug. 7, 1999
(2) An admission of legitimate filiation in a public I, Ben-Hur C. Nepomuceno, hereby undertake to give and
document or a private handwritten instrument and provide financial support in the amount of P1,500.00 every
signed by the parent concerned. fifteen and thirtieth day of each month for a total of P3,000.00 a
month starting Aug. 15, 1999, to Ahrbencel Ann Lopez,
presently in the custody of her mother Araceli Lopez without
In the absence of the foregoing evidence, the legitimate filiation
the necessity of demand, subject to adjustment later depending
shall be proved by:
on the needs of the child and my income.
58
175 of the Family Code which admits as competent evidence
of illegitimate filiation an admission of filiation in a private
handwritten instrument signed by the parent concerned.
SO ORDERED.
59
by Juan Iglesia y Orgil and Lanting Security Agency
represented by Edgar Lucero y Iribayen, respectively,
to the damage and prejudice of the complainants in
the aforementioned amount of P1.3 million and
P18,000.00, respectively.
PEPITO CAPILA Y YRUMA, petitioner, Before the armored car could arrive, two armed men suddenly
vs. entered the Meralco Collection Office. They hit Dimas on the
THE PEOPLE OF THE PHILIPPINES, respondent. nape with a handgun. Then they ordered Ariel and Lani to lie
on the floor face down and immediately took the duffle bag
DECISION containing Meralco's cash collections. They also seized three
.38 caliber revolvers, valued at P6,000.00 each, owned by the
Lanting Security and Watchman Agency, including the service
SANDOVAL-GUTIERREZ, J.:
handgun issued to Dimas.
60
then requested SPO4 Maximo and his team to go to Northern WHEREFORE, premises considered, the appealed
Samar to apprehend Capila. decision (dated January 3, 1995) of the Regional Trial
Court (Branch 148) in Makati, Metro Manila in
In Northern Samar, the police operatives, with the assistance Criminal Case No. 93-7217 is hereby AFFIRMED with
of the Citizens Armed Forces Geographical Unit, arrested costs against the accused-appellant.
petitioner, his brother Bonifacio Capila, and Deogenio
Caparoso. The police found P5,000.00 in possession of SO ORDERED.
petitioner allegedly part of the loot. All the suspects were
arrested without warrants. Hence, the instant petition for Review on Certiorari.
SPO4 Maximo interrogated petitioner who admitted that he The fundamental issue for our resolution is whether the
participated in the commission of the crime; that his share of prosecution was able to prove the guilt of herein petitioner
the loot is P45,000.00; and that Dimas is the mastermind. beyond reasonable doubt.
After the prosecution had rested its case, all the accused, A careful scrutiny of the records shows that the prosecution
through counsel, filed a Demurrer to Evidence but it was relied heavily on the testimony of SPO4 Maximo that
denied by the trial court. immediately after the incident, Dimas reported to him that one
of the robbers is petitioner. The Court of Appeals, in affirming
When the case was called for the continuation of the hearing the court a quo's judgment convicting petitioner, ruled that
on November 15, 1994, the accused waived their right to Dimas' statement is part of the res gestae.
present their evidence, opting to submit their respective
memoranda instead. In the appellee's brief, the Solicitor General reiterated the
appellate court's ruling.
On January 3, 1995, the trial court rendered its Decision
acquitting all the accused, except petitioner, thus: Res gestae is a Latin phrase which literally means "things
done." As an exception to the hearsay rule, it refers to those
WHEREFORE, premises considered: exclamations and statements by either the participants, victims,
or spectators to a crime immediately before, during or
1. And finding that the prosecution failed to prove the immediately after the commission of the crime, when the
guilt of accused Bonifacio Capila, Deogenes circumstances are such that the statements were made as
Caparoso, and Dimas dela Cruz beyond reasonable spontaneous reactions or utterances inspired by the
doubt, they are hereby acquitted. excitement of the occasion, and there was no opportunity for
the declarant to deliberate and fabricate a false statement.3
The reason for the rule is human experience. It has been
2. And finding Pepito Capila guilty beyond reasonable shown that under certain external circumstances of physical or
doubt of the crime of Robbery defined under Article mental shock, the state of nervous excitement which occurs in
293 and penalized under Article 294 par. 5 of the a spectator may produce a spontaneous and sincere response
Revised Penal Code, with the presence of the to the actual sensations and perceptions produced by the
aggravating circumstance of abuse of confidence, use external shock. As the statements or utterances are made
of a firearm, and betrayal of trust, he is hereby under the immediate and uncontrolled domination of the
sentenced to an indeterminate prision term of from senses, rather than reason and reflection, such statements or
EIGHT (8) years as minimum to TEN (10) years as utterances may be taken as expressing the real belief of the
maximum. speaker as to the facts he just observed. The spontaneity of
the declaration is such that the declaration itself may be
Pepito Capila is also ordered to pay: regarded as the event speaking through the declarant rather
than the declarant speaking for himself.4
1. Lanting Security Agency the sum of
P18,000 for the value of the three firearms The rule on res gestae is provided under Section 42, Rule 130
not recovered and belonging to said agency; of the Revised Rules of Court, thus:
2. The sum of P1,292,991.12 to Pilipinas SEC. 42. Part of the res gestae. – Statements made
Bank, the amount taken and not recovered. by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with
With costs against accused Pepito Capila. respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also
statements accompanying an equivocal act material
In his appeal to the Court of Appeals, petitioner alleged that the to the issue, and giving it a legal significance, may be
trial court erred in admitting in evidence the statement of Dimas received as part of the res gestae.
that he (petitioner) is one of the robbers. He was denied due
process because he was not able to cross-examine Dimas as
the latter did not testify. For the admission of the res gestae in evidence, the following
requisites must be met: (1) that the principal act or the res
gestae be a startling occurrence; (2) the statement is
On November 10, 2000, the Court of Appeals promulgated its spontaneous or was made before the declarant had time to
Decision affirming the assailed judgment of the trial court, thus: contrive or devise, and the statement is made during the
occurrence or immediately or subsequent thereto; and (3) the
61
statement made must concern the occurrence in question and flood along Guerrero Street, Laoag City, suddenly she
its immediately attending circumstances.5 screamed, "Ay" and quickly sank into the water. Her two
companions, Aida Bulong and Linda Estavillo, shouted for help.
The Court of Appeals found that all the above requisites are Ernesto dela Cruz arrived and tried to approach Isabel who
present, thus: was electrocuted. But at four meters away from her, Ernesto
turned back shouting, "the water is grounded." This Court ruled
that the Court of Appeals properly applied the principle of Res
First. The principal act is a startling occurrence which gestae. The testimonies of Aida and Linda that Ernesto dela
is the robbery in question. Cruz tried to approach the victim, but he turned back and
shouted, "the water is grounded," are not hearsay although he
Second. Dimas Dela Cruz informed the investigating (Ernesto) was not presented as a witness. His declaration is
officers that it was appellant who robbed the Meralco part of the Res gestae.
office immediately after the incident occurred and
before he had the time to contrive a story. Applying the above ruling on the instant case, we cannot
consider the testimony of SPO4 Maximo as hearsay since the
The robbery happened at around eight o'clock in the statement of Dimas that petitioner is one of the robbers is part
evening of August 9, 1993 (p. 4, TSN, February 24, of the Res gestae.
1994). Immediately after the incident, dela Cruz called
up the police station (p. 17, TSN, January 31, 1994). Moreover, despite the damaging testimonies of the witnesses
In ten minutes, SPO4 Maximo and his companion for the prosecution, petitioner did not testify to rebut them.
were in the Meralco office where they immediately Such posture is admission in silence.
conducted an investigation (pp. 3-9, TSN, February
24, 1994). During this investigation, DELA Cruz
pointed to appellant as one of the perpetrators of the Section 32, Rule 130 of the New Rules on Evidence provides:
crime.
Sec. 32. Admission by silence. – An act or declaration
Further, immediately after the robbers fled, dela Cruz made in the presence and within the hearing or
informed Ariel Arellano (the bank representative observation of a party who does or says nothing when
detailed at the Meralco office) that appellant was one the act or declaration is such as naturally to call for
of those who robbed the office (pp. 15-17, TSN, action or comment if not true, and when proper and
January 31, 1994). possible for him to do so, may be given in evidence
against him.
In other words, statement of dela Cruz was
spontaneous as correctly observed by the trial court. Another factor that militates against petitioner's innocence is
his flight to Samar after the commission of the crime.
Obviously, such flight is an indication of guilt.
Third. The statement of dela Cruz refers to the
robbery or incident subject matter of this case.
Verily, we hold that the prosecution, by its evidence, has
established the guilt of petitioner beyond reasonable doubt.
We are in accord with the Court of Appeals in its conclusion
that all the requisites of the rule on Res gestae are present.
The principal act, which by any measure is undoubtedly a WHEREFORE, we DENY the petition. The assailed Decision of
startling occurrence, is the robbery of which petitioner is being the Court of Appeals in CA-G.R. CR No. 18903 finding
charged. Immediately after the robbery, Dimas dela Cruz, the petitioner PEPITO CAPILA y YRUMA guilty beyond
security guard then on duty, informed Ariel that one of the reasonable doubt of the crime of robbery is AFFIRMED.
perpetrators is herein petitioner. Dimas likewise reported at
once the incident to the police and to the security agency. With costs de oficio.
When questioned by SPO4 Maximo, Dimas, who was still
shocked, named petitioner herein as one of the robbers. His SO ORDERED.
statements to Ariel and SPO4 Maximo were made before he
had the time and opportunity to concoct and contrive a false
story. We note that Dimas personally knows petitioner
considering that both worked in the same security agency and
assigned in the same office.
Petitioner contends that since Dimas dela Cruz did not take the
witness stand, he (petitioner) was deprived of his right to cross-
examine him. Thus, the Court of Appeals should not have
considered Dimas' statement as part of the Res gestae. Our
ruling in Ilocos Norte Electric Company v. Court of Appeals6 is
relevant.
62
Some 50 meters away from the place of the incident, Camilo
Cudal (Camilo), appellant’s first cousin who was then in the
house of his mother-in-law, heard the commotion.6 Camilo
immediately rushed to the place and there saw the victim
sitting on his bed and wiping blood oozing from his forehead.
When asked about what happened, the victim quickly replied
that he quarreled with appellant and that he was hit by him with
a stone.7
63
That on or about January 1, 1998, at about 2:00 WHEREFORE, the assailed Decision of Branch 39 of
o’clock dawn, in barangay Bonlalacao, municipality of the Regional Trial Court of Lingayen, Pangasinan,
Mangatarem, province of Pangasinan, Philippines and dated October 28, 1998, in Criminal Case No. L-5778,
within the jurisdiction of this Honorable Court, the convicting the appellant, Pablo Cudal, of the crime of
above-named accused, willfully, unlawfully and parricide and sentencing him to suffer the penalty of
feloneously (sic), and with evident premiditation (sic), reclusion perpetua is hereby AFFIRMED. The last
that is, having conceived and deliberated to kill his sentence of the first paragraph of its dispositive
own father with whom he was living with, and with portion is however hereby modified to read, as
treachery, attack, assault and hit with the use of stone follows: "Accused-appellant Pablo Cudal is also
his father, Crispin Cudal, on the head and other parts ordered to pay the heirs of the victim, Crispin Cudal,
of his body, inflicting upon the latter mortal wounds the sum of P30,000.00 representing funeral
which directly caused his death, to the damage and expenses, plus indemnity of P50,000.00 without
prejudice of the heirs of the said victim Crispin Cudal. subsidiary imprisonment in case of insolvency; and to
pay the costs."
CONTRARY to Article 246 of the Revised Penal
Code.15 No pronouncement as to costs.23 (Emphasis in the
original)
xxxx
Hence, the elevation of the case to this Court for final review.
Denying having struck the victim, appellant claimed that it was
he who was assaulted with a bolo,16 and that while going after In a Manifestation dated September 7, 2005, 24 appellant
him, the victim accidentally fell down and hit the bedpost in the informed that he was opting not to file a Supplemental Brief.
process, wounding himself on the forehead.17 Asked how the
victim sustained injury on his abdomen, appellant explained The appeal fails.
that the victim subsequently fell on the floor, hitting his
abdomen with the handle of the bolo he was holding.18
Article 246 of the Revised Penal Code provides:
After trial, Branch 39 of the Regional Trial Court of Lingayen,
Pangasinan, by Decision of October 28, 1998, convicted ART. 246. Parricide. – Any person who shall kill his
appellant of parricide, but considered his intoxication at the father, mother, or child, whether legitimate or
time of the commission of the offense as a mitigating illegitimate, or any of his ascendants, or descendants,
circumstance under paragraph 3, Article 15 of the Revised or his spouse, shall be guilty of parricide and shall be
Penal Code. The dispositive portion of the decision reads: punished by the penalty of reclusion perpetua to
death.
WHEREFORE, in view of the foregoing
considerations, the Court finds the accused Pablo Prosecution witness Camilo Cudal narrated what he knew of
Cudal Guilty beyond reasonable doubt of the crime of the circumstances surrounding the incident as follows:
Parricide for the killing of his father Crispin Cudal, on
the early morning of New Year, January 1, 1998 with Q Do you still recall where you were on the late
the presence of one (1) mitigating circumstance, and evening of December 31, 1997 before midnight?
accordingly the Court sentences the said accused to
reclusion perpetua. He is also ordered to pay the heirs A I could remember, sir.
of the accused the sum of P30,000.00 representing
funeral expenses, plus indemnity of P50,000.00
without subsidiary imprisonment in case of insolvency; Q Where were you?
and to pay the costs.
A I was in the house of my in[-]laws, sir.
Being a detention prisoner, the said accused is
credited with his detention to its full extent. Q Will you please tell the name of your in-laws?
Appellant appealed his conviction before this Court, assailing Q Where is the place of Marissa Dancel located?
the trial court for "accept[ing] the prosecution’s account as
gospel truth despite the fact that its witnesses were not actually
A Bulalakao, Mangatarem, sir.
direct witnesses to the crime charged."20 The appeal was
docketed as G.R. No. 140637.
Q Why were you there at the house of your mother-in-
law, Marissa Dancel?
By Resolution21 of August 30, 2004, this Court ordered the
transfer of the case to the Court of Appeals for appropriate
action and disposition conformably with People v. Mateo.22 A Because we were celebrating the New Year[’s] Eve,
sir.
The appellate court affirmed, with modification, appellant’s
conviction. The decretal text of the decision reads:
64
Q Now by the way, how far is your house from the Q As you [e]ntered the door of the house of Crispin
house of your mother-in-law where you were Cudal, what did you see, if any?
celebrating New Year[’]s Eve?
A I saw blood oozing from the forehead of Crispin
A Around 50 meters away, sir. Cudal, sir.
Q Now, at about 2:00 o’clock in the early mornignof Q Where did you see Crispin Cudal inside the house
(sic) January 1, 1998, can you tell us where you blooded as you have pointed in the forehead?
were?
A In the place where he sleep (sic), sir.
A Yes, sir, I was in the house of my in-laws.
Q What was his position when you saw him blooded
Q As you were stay (sic) there, can you still recall if on the forehead?
there was unusual thing that you observe[d] when you
were at the house of your mother-in-law? A He was seating down and he was wiping the blood
of his forehead, sir.
A Yes, sir, there was.
Q When you saw wiping his blood on the forehead,
Q What was that that you observe[d]? what next happened?
A I heard something like quarreling on the house of A I asked him, "Uncle what happened,["] and he
Crispin Cudal, sir. answered, "we quarreled with Pablo Cudal,["] he
said.
Q Now, can you tell us why do you say that there is a
sounds (sic) like warning in the house of Crispin Q Do you remember having asked, what caused the
Cudal? injury of the forehead?
A Because they were uttering words, sir. A Yes, sir, I asked him.
Q Can you tell us if you could recognize that voices as Q What did the victim answer if any when you asked
you said they are quarreling? him what caused his injury on the forehead if he
answer (sic) you?
A Yes, sir.
A I was hit with the stone by Pablo Cudal.25
Q Please tell the Honorable Court whose voice is (Emphasis supplied)
that?
Another prosecution witness, Segundino Cudal, declared that
A Pablo Cudal and Crispin Cudal, sir. when his brother − the victim was brought to his house by
Camilo, the victim who was "strong," albeit his face was
bloodied, told him that he was struck with a stone by appellant.
Q Now, what did you [do] if any when you heard this
quarreling voices of accused Pablo Cudal?
FISCAL CHIONG:
A Because I went near, sir.
Q Do you know where you were on the early morning
of January 1, 1998?
Q How did you go near?
A I was at home, sir.
A I walked towards the house of Crispin, (sic) Cudal
and I was listening to them, sir.
Q Do you recall if there is unusual incident that came
to your knowledge involving your brother Crispin
Q Where did you go when you went near? Cudal?
Q Whose house? Q Do you know, if any one came to your house that
morning of January 1, 1998?
A House of Crispin Cudal, sir?
A Yes, Crispin Cudal, sir.
Q How did you [e]nter the house of Crispin Cudal?
Q How was your older brother Crispin Cudal brought
A The door was opened, sir. to yourhouse (sic) by Camilo Cudal?
65
A He was loaded in a tricycle, sir. hearsay rule. For the same to be considered part of the res
gestae, the following requisites must concur:
Q Now, when you saw your brother when he was
brought to your house, can you tell us his physical (1) the principal act or res gestae must be a startling
appearance or condition? occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise a false
A He was strong but his face was bloody, sir. Even statement, and the statement was made during the occurrence
his clothes were stained or tainted with blood, sir. or immediately prior or subsequent thereto; and (3) the
statement made must concern the occurrence in question and
its immediately attending circumstances.30
Q Now, when you saw your brother’s face bloody as
well as his clothes, what did you do, if any as he was
already in your house? The spontaneity of the utterance and its logical connection with
the principal event, coupled with the fact that the utterance was
made while the declarant was still "strong" and subject to the
A I asked him what happened to him and he told me stimulus of the nervous excitement of the principal event, are
"I was struck with stone by my son[.]" deemed to preclude contrivance, deliberation, design or
fabrication, and to give to the utterance an inherent guaranty of
Q Did you ask him who is this son of him who struck trustworthiness.31 The admissibility of such exclamation is
him with stone? based on experience that, under certain external
circumstances of physical or mental shock, a stress of nervous
A Yes, sir his name is Pablo Cudal.26 (Emphasis excitement may be produced in a spectator which stills the
and underscoring supplied) reflective faculties and removes their control, so that the
utterance which then occurs is a spontaneous and sincere
response to the actual sensations and perceptions already
At the witness stand, defense witness Dr. Orence, declared: produced by the external shock. Since this utterance is made
under the immediate and uncontrolled domination of the
Q Is it also possible Doctor[a] that this contusion was senses, rather than reason and reflection, and during the brief
due to the force of a stone struck on the victim? Stone period when consideration of self-interest could not have been
is a hard object? fully brought to bear, the utterance may be taken as expressing
the real belief of the speaker as to the facts just observed by
him.32
A It could be, sir.
Absent any showing then that appellant’s intoxication was Sometime in 1990, Cembrano was introduced by Jardiolin to
habitual or intentional, it may only be considered as mitigating the PSI Board of Directors, among whom was Setias. Since
to correctly call for the imposition of the penalty of reclusion then, Golden Delta supplied PSI with its construction materials
perpetua, in accordance with Article 63, paragraph 2(3) of the on credit and at times helped finance the latter’s construction
Revised Penal Code.34 projects through Golden Delta’s sister financing company.5
WHEREFORE, the Court of Appeals Decision of February 11, Initially, the construction materials delivered by Golden Delta to
2005 which affirmed the October 28, 1998 Decision of Branch PSI were taken from the former’s warehouse located in
39 of the Regional Trial Court of Lingayen, Pangasinan, Dungon A, Jaro, Iloilo City, which was situated some
convicting appellant Pablo Cudal of parricide and meting out kilometers away from the PSI compound at Barangay Maliao,
the penalty of reclusion perpetua is AFFIRMED. Pavia, Iloilo.6
Golden Delta alleged that its stocks coming from Luzon and
Cebu were delivered directly to the PSI compound and stored
there. Golden Delta also placed there trucks, forklifts and other
equipment necessary for loading and unloading the materials.
It likewise assigned there its own personnel to manage and
attend to the receipts and withdrawal of materials by its buyers.
Golden Delta claimed that the procedure in the withdrawal of
materials by its customers in the PSI compound was to first
purchase the materials from its main office in Iloilo City; the
customer would then be issued a withdrawal slip describing the
materials and their quantities; the withdrawal slip would then be
presented to Golden Delta’s personnel stationed at the PSI
G.R. No. 176768 January 12, 2009 compound and the latter would record it and release the
materials to the customer. Golden Delta claimed that the
GOLDEN (ILOILO) DELTA SALES CORPORATION, arrangement went smoothly from March 2000 to December
Petitioners, 2001.8
vs.
PRE-STRESS INTERNATIONAL CORPORATION, ZEÑON Before December 5, 2001, the lessee of Golden Delta’s
SETIAS and JERRY JARDIOLIN, Respondents. warehouse in Dungon A, Jaro, Iloilo City, terminated its lease
agreement with Golden Delta. Hence, Golden Delta decided to
DECISION resume its operations at its own warehouse. Thereafter,
Golden Delta started to retrieve and transfer its alleged stocks
from the PSI compound to its own warehouse in Dungon A.
AZCUNA, J.:
Golden Delta’s employees were able to load three out of four
trucks with assorted construction materials, but were only able
to bring out two loaded trucks from the PSI compound to its
warehouse in Dungon A. When Golden Delta’s people returned
This is a petition for review on certiorari under Rule 45 of the to retrieve the remaining materials, they were prevented from
1997 Revised Rules of Civil Procedure seeking to set aside the doing so by the guards of PSI, allegedly upon the instructions
Decision1 dated July 22, 2005 and the Amended Decision 2 of Jardiolin. Despite numerous telephone calls by Golden Delta
dated February 20, 2007 of the Court of Appeals (CA) in CA- to the officers and personnel of PSI, the latter allegedly refused
G.R. CV No. 79101. to allow Golden Delta to withdraw its remaining stocks.9
Petitioner Golden (Iloilo) Delta Sales Corporation (Golden On December 7, 2001, PSI purportedly called Golden Delta’s
Delta) is a domestic corporation engaged in the business of office to inform the latter that it may retrieve the two trucks that
selling hardware and construction materials. Mr. Chui Han Sing were left at the PSI compound. Golden Delta, however, found
Cembrano is its Vice-President and General Manager.3 two empty trucks along the highway outside the PSI
compound. It appears that one of the trucks which were loaded
with materials earlier was emptied of its cargo. At that time,
67
according to Golden Delta, the drivers who retrieved the trucks that he did not agree or allow, impliedly or explicitly, Golden
saw Golden Delta’s materials still inside the PSI compound. 10 Delta or any of its representatives to store any construction
materials in his designated area inside the PSI compound. He
On December 8, 2001, Golden Delta sent a Letter11 addressed averred that neither he, PSI nor Setias agreed to the
to Setias, the General Manager of PSI, demanding the release withdrawal of any of the alleged stocks because the stocks
of the construction materials. PSI allegedly refused to release inside the PSI compound were not owned by Golden Delta. He
or allow Golden Delta to enter the compound and withdraw the added that the construction materials inside the PSI compound
materials.12 being claimed by Golden Delta were his personal properties.
Thus, he cannot and could not have refused Golden Delta from
withdrawing any construction materials that it allegedly stored
Consequently, Golden Delta filed on January 8, 2002 a inside the PSI compound since Golden Delta had not stored or
Complaint for Recovery of Personal Property with Prayer for delivered any construction materials to him for storing or
Replevin with Damages13 before the Regional Trial Court safekeeping with the obligation to return the same.19
(RTC), Iloilo City, against PSI, Jardiolin and Setias, later
docketed as Civil Case No. 02-27020. In its complaint, Golden
Delta averred that respondents’ refusal to allow it to withdraw Thereafter, trial ensued and on March 17, 2003, the RTC
the construction materials inside the PSI compound, in effect, rendered a Decision20 in favor of respondents and against
constitutes unlawful taking of possession of personal Golden Delta. Its dispositive portion stated:
properties. Golden Delta prayed that the trial court issue a writ
of replevin ordering the seizure and delivery of the subject WHEREFORE, judgment is hereby rendered in favor of the
personal properties in accordance with law or in the event that defendants and against the plaintiff as follows:
manual delivery cannot be effected, to render judgment
ordering respondents to pay, jointly and severally, the sum of 1. Dismissing the complaint of plaintiff;
P3,885,750.69 plus 20% as attorney’s fees and the replevin
bond premium and other expenses incurred in the seizure of
the construction materials. Golden Delta likewise prayed for 2. Directing plaintiff to pay defendants as
P200,000 moral damages, P200,000 exemplary damages, and follows;
the cost of the suit.14
A. To defendant Jerry Jardiolin:
On January 12, 2002, upon the complaint of Golden Delta,
agents of the National Bureau of Investigation (NBI) 1. Five Hundred Thousand Pesos
apprehended and impounded two trucks loaded with Golden (P500,000.00) as Attorney’s Fees and one
Delta’s materials that were not retrieved from the PSI [sic] Hundred Thousand Pesos
compound. Said materials, according to Golden Delta, were (P100,000.00) as Acceptance Fee;
identified by the metal tags attached thereto bearing the name
“Golden Delta.” The truck drivers and their helpers were 2. Moral Damages in the amount of Three
apprehended and detained by the NBI. Thereafter, on the basis Million Five Hundred Thousand Pesos
of the evidence gathered and the findings of the NBI, a (P3,500,000.00);
complaint for qualified theft was filed by the NBI with the
Municipal Circuit Trial Court, Sta. Barbara-Pavia, Iloilo, against
Jardiolin and Setias together with other officers and personnel 3. Exemplary Damages in the amount of One
of PSI.15 Million Pesos (P1,000,000.00);
In their Answer with Affirmative Defense and Counterclaim 16 B. To defendant Zeñon Setias;
filed on February 8, 2002, PSI and Setias contended that
Golden Delta’s action for recovery of personal property with 1. One Million Pesos (P1,000,000.00) for
prayer for replevin with damages has no factual and legal Attorney’s Fees;
basis. They averred that they came to know Cembrano when
Jardiolin introduced him to them and that they are familiar with
2. Moral Damages in the amount of Three
Golden Delta since they used to buy construction materials
Million Five Hundred Thousand Pesos
from it. They added that Golden Delta delivered construction
(P3,500,000.00);
materials at the PSI compound when they bought materials
from the latter or when it delivered construction materials to
Jardiolin at a separate area within the compound. Further, the 3. Exemplary Damages in the amount of One
PSI compound has a total of 5.7 hectares. It has wide and idle Million Pesos (P1,000,000.00);
spaces since PSI occupies only a portion of the property
consisting of more or less 2.5 hectares. Jardiolin was also SO ORDERED.21
allowed to use a portion of the area as storage for his own
equipment and construction materials. In addition, they do not
In ruling for respondents the RTC ratiocinated that Golden
interfere with the affairs and activities of Jardiolin as his
Delta was not able to prove its ownership of the subject
operations do not interfere with their own operations. Although
materials and its entitlement to their possession. The court
Golden Delta also delivers construction materials to Jardiolin,
stated that Golden Delta was not able to prove its case or
their transaction is exclusively between the two of them and
causes of action, having failed to establish in a satisfactory
they have no participation in it whatsoever.17
manner the facts upon which it based its claims. Specifically,
Golden Delta failed to establish the requisites for Replevin
In his own Answer with Affirmative Defenses and under Rule 60 of the Revised Rules of Court. The RTC
Counterclaim18 dated February 8, 2002, Jardiolin maintained concluded that there was no agreement to store the materials
68
in the PSI compound and that Jardiolin was the owner of the VI
subject material.22
IN AWARDING ATROCIOUS, SCANDALOUSLY
Further, it was the opinion of the trial court that the case was EXHORBITANT AND GARGANTUAN AMOUNTS OF
filed not for the recovery of the subject construction materials DAMAGES WHICH ARE TOTALLY UNPROVED.26
but due to Cembrano’s motive to take revenge on Jardiolin.
The court based this on the testimony of one Imee Vilches who On July 22, 2005, the CA rendered a Decision 27 affirming with
testified that she was the girlfriend of Cembrano and that they modification the decision of the RTC. In its decision, the CA
have a daughter. Their relationship started in 1996 and it lasted found that Cembrano had the personality to appear and
until April 26, 2001. She testified that Cembrano was extremely represent Golden Delta. It, however, agreed with the RTC that
jealous of Jardiolin who, compared to him, was more talented, Golden Delta was not able to prove by a scintilla of evidence
good looking and intelligent. The RTC pointed out that Ms. that it is the owner of the subject materials and that it is entitled
Vilches knew the transactions between Cembrano and PSI to their possession. Further, the appellate court reduced the
because she is the consultant and accountant of PSI. 23 monetary awards granted to Jardiolin and Setias. The decretal
portion of the decision reads:
Also, the RTC found that Cembrano was not able to prove that
he was authorized by the Board of Directors of Golden Delta to WHEREFORE, premises considered, the assailed Decision
file the case.24 under review dated March 17, 2003 of the Regional Trial Court,
6th Judicial Region, Branch 32, Iloilo City, in Civil Case No. 02-
Moreover, the RTC noted that even before the filing of the 27020, is hereby MODIFIED as follows:
complaint, the construction materials were in the possession of
respondents. As such, it was Jardiolin who was entitled to the A. To defendant Jerry Jardiolin:
possession of the subject materials since he was both their
owner and possessor, and no storage agreement was proven
by Golden Delta.25 1. The award of Attorney’s Fees
and Acceptance Fee is reduced
from P600,000.00 [sic] to
Aggrieved, Golden Delta sought recourse before the CA, P100,000.00;
claiming that the RTC erred:
2. The award of moral damages is
I reduced from P3,500,000.00 to
P200,000.00; and
IN HOLDING THAT CHUI HAN SING CEMBRANO, VICE-
PRESIDENT AND MANAGER OF APPELLANT 3. The award of exemplary
CORPORATION, HAS NO AUTHORITY TO damages is reduced from
REPRESENT/SUE FOR AND ON BEHALF OF APPELLANT. P1,000,000.00 to P100,000.00;
71
PSI nor has it received payment from the latter. Also, the sales No costs.
invoice of Lapu-Lapu Steel Industries refers to corrugated tie
wires, which were not among the materials sought to be SO ORDERED.
recovered by petitioner in the complaint. Aside from these
sales invoices, no other documentary evidence was presented
by Jardiolin or PSI to prove their ownership of the controverted
materials.
72
FALCON MARITIME & ALLIED SERVICES, INC., SPECIAL
EIGHTH DIVISION OF THE COURT OF APPEALS, AND
LABOR ARBITER ERMITA C. CUYUGA, Petitioner,
DECISION
TINGA, J.:
74
Despite ruling that prescription had not set in, the appellate not involved. The petitioner had actually the option of either
court nonetheless declared petitioner’s dismissal from refilling [sic] the case or seeking reconsideration in the original
employment as valid and reinstated the Labor Arbiter’s action. It chose to file SP 73790 after realizing that it still had
decision. enough time left of the original period of 60 days under Rule 65
to do so.
The appellate court relied on the fax messages issued by the
ship master shortly after petitioner had committed a serious Since the dismissal of the first petition did not ripen into res
neglect of his duties. It noted that the said fax messages judicata, it may not be said that there was forum shopping with
constitute the res gestae. In defending the non-presentation of the filing of the second. The accepted test for determining
the logbook, it stated that three years had already passed whether a party violated the rule against forum shopping
since the incident and Hansu was no longer the principal of insofar as it is applicable to this setting is whether the judgment
private respondent. or final resolution in the first case amounts to res judicata in the
second. Res judicata is central to the idea of forum shopping.
Petitioner’s motion for reconsideration was denied. Hence he Without it, forum shopping is non-existent. The dismissal of the
filed this instant petition. first petition, moreover, if it does not amount to res judicata,
need not be mentioned in the certification of non-forum
shopping accompanying the second action. The omission will
Citing grave abuse of discretion on the part of the Court of not be fatal to the viability of the second case. (Citations
Appeals, petitioner reiterates his argument that the appellate omitted)30
court should not have accepted the second petition in view of
the fact that a corresponding entry of judgment already has
been issued. By filing the second petition, petitioner believes Private respondent, in turn, questions the propriety of the
that private respondent has engaged in forum shopping. 26 instant certiorari petition and avers that the issues raised by
petitioner can only be dealt with under Rule 45 of the Rules of
Court.31 Against this thesis, petitioner submits that the
Private respondent, for its part, defends the appellate court in acceptance of the petition is addressed to the sound discretion
taking cognizance of the second petition by stressing that there of this Court.32
is no law, rule or decision that prohibits the filing of a new
petition for certiorari within the reglementary period after the
dismissal of the first petition due to technicality.27 It rebuts The proper remedy to assail decisions of the Court of Appeals
petitioner’s charge of forum shopping by pointing out that the involving final disposition of a case is through a petition for
dismissal of the first petition due to technicality has not ripened review under Rule 45. In this case, petitioner filed instead a
into res judicata, which is an essential element of forum certiorari petition under Rule 65. Notwithstanding this
shopping.28 procedural lapse, this Court resolves to rule on the merits of
the petition in the interest of substantial justice,33 the
underlying consideration in this petition being the arbitrary
In determining whether a party has violated the rule against dismissal of petitioner from employment.
forum shopping, the test to be applied is whether the elements
of litis pendentia are present or whether a final judgment in one
case will amount to res judicata in the other. 29 This issue has Petitioner submits that the Court of Appeals erred in relying
been thoroughly and extensively discussed and correctly merely on fax messages to support the validity of his dismissal
resolved by the Court of Appeals in this wise: from employment. He maintains that the first fax message
containing the information that the vessel encroached on a
different route was a mere personal observation of the ship
The respondent’s two arguments essay on certain master and should have thus been corroborated by evidence,
developments in the case after the NLRC rendered its and that these fax messages cannot be considered as res
decision. He points out with alacrity that an entry of judgment gestae because the statement of the ship master embodied
was issued twice – first by the NLRC with respect to its therein is just a report. He also contends that he has not
decision and then by the Ninth Division of the Court of Appeals caused any immediate danger to the vessel and that if he did
after it dismissed on technical grounds the first petition for commit any wrongdoing, the incident would have been
certiorari filed by the petitioner. Neither event, for sure, recorded in the logbook. Thus, he posits that the failure to
militates against the institution of a second petition for produce the logbook reinforces the theory that the fax
certiorari. A decision of the NLRC is never final for as long as it messages have been concocted to justify his unceremonious
is the subject of a petition for certiorari that is pending with a dismissal from employment. Hence, he believes that his
superior court. A contrary view only demeans our certiorari dismissal from employment stemmed from his filing of the
jurisdiction and will never gain currency under our system of complaint with the ITF which his superiors resented.34
appellate court review. It is more to the point to ask if a second
petition can stand after the first is dismissed, but under the
particular circumstances in which the second was brought, we Private respondent insists that the appellate court is correct in
hold that it can. The theory of res judicata invoked by the considering the fax messages as res gestae statements. It
respondent to bar the filing of the second petition does not likewise emphasizes that non-presentment of the logbook is
apply. The judgment or final resolution in the first petition must justified as the same could no longer be retrieved because
be on the merits for res judicata to inhere, and it will not be on Hansu has already ceased to be its principal. Furthermore, it
the merits if it is founded on a consideration of only technical or refutes the allegation of petitioner that he was dismissed
collateral points. Yet this was exactly how the first petition was because he filed a complaint with the ITF in behalf of his fellow
disposed of. SP 73521 was dismissed as a result of the failure crew members. It claims that petitioner’s allegation is a hoax
of the petitioner to comply with the procedural requirements of because there is no showing that the alleged complaint has
a petition for certiorari. The case never touched base. There been received by the ITF and that no action thereon was ever
was no occasion for the determination of the substantive rights taken by the ITF.35
of the parties and, in this sense, the merits of the case were
75
Private respondent also asserts that petitioner was not information as the first fax message. The Court of Appeals
dismissed but that he voluntarily asked for his repatriation. This treated these fax messages as part of the res gestae proving
assertion, however, deserves scant consideration. It is highly neglect of duty on the part of petitioner.
illogical for an employee to voluntarily request for repatriation
and then file a suit for illegal dismissal. As voluntary Section 42 of Rule 13040 of the Rules of Court mentions two
repatriation is synonymous to resignation, it is proper to acts which form part of the res gestae, namely: spontaneous
conclude that repatriation is inconsistent with the filing of a statements and verbal acts. In spontaneous exclamations, the
complaint for illegal dismissal.36 res gestae is the startling occurrence, whereas in verbal acts,
the res gestae are the statements accompanying the equivocal
The paramount issue therefore boils down to the validity of act.41 We find that the fax messages cannot be deemed part of
petitioner’s dismissal, the determination of which generally the res gestae.
involves a question of fact. It is not the function of this Court to
assess and evaluate the facts and the evidence again, our To be admissible under the first class of res gestae, it is
jurisdiction being generally limited to reviewing errors of law required that: (1) the principal act be a startling occurrence; (2)
that might have been committed by the trial court or the statements were made before the declarant had the time to
administrative agency. Nevertheless, since the factual findings contrive or devise a falsehood; and (3) that the statements
of the Court of Appeals and the Labor Arbiter are at variance must concern the occurrence in question and its immediate
with those of the NLRC, we resolve to evaluate the records and attending circumstances.42
the evidence presented by the parties.37
Assuming that petitioner’s negligence—which allegedly caused
The validity of an employee's dismissal hinges on the the ship to deviate from its course—is the startling occurrence,
satisfaction of two substantive requirements, to wit: (1) the there is no showing that the statements contained in the fax
dismissal must be for any of the causes provided for in Article messages were made immediately after the alleged incident. In
282 of the Labor Code; and (2) the employee was accorded addition, no dates have been mentioned to determine if these
due process, basic of which is the opportunity to be heard and utterances were made spontaneously or with careful
to defend himself.38 deliberation. Absent the critical element of spontaneity, the fax
messages cannot be admitted as part of the res gestae of the
The Labor Arbiter held that petitioner’s absence during his first kind.
watch duty when an emergency call was received from the
Japanese port authority that M/V Phoenix Seven was "invading Neither will the second kind of res gestae apply. The requisites
other route" constituted neglect of duty, a just cause for for its admissibility are: (1) the principal act to be characterized
terminating an employee. Records reveal that this information must be equivocal; (2) the equivocal act must be material to
was related to private respondent via two fax messages sent the issue; (3) the statement must accompany the equivocal act;
by the captain of M/V Phoenix Seven. The first fax message and (4) the statements give a legal significance to the
dated 18 January 1997 is reproduced below: equivocal act.43
JUST RECEIVED PHONE CALL FROM MASTER N Petitioner’s alleged absence from watch duty is simply an
C/OFFICER THAT THEY DECIDED TO DISCHARGE innocuous act or at least proved to be one. Assuming
2/OFFICER AT OSAKA PORT. arguendo that such absence was the equivocal act, it is
nevertheless not accompanied by any statement more so by
DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL the fax statements adverted to as parts of the res gestae. No
ORDER. date or time has been mentioned to determine whether the fax
messages were made simultaneously with the purported
CAPT. HAD RECEIVED EMERGENCY WARNING CALL equivocal act.
FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY
THAT SHIP IS INVADING OTHER ROUTE. Furthermore, the material contents of the fax messages are
unclear. The matter of route encroachment or invasion is
SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND questionable. The ship master, who is the author of the fax
2/O NOT CARRY OUT HIS WATCH DUTY. messages, did not witness the incident. He obtained such
information only from the Japanese port authorities. Verily, the
messages can be characterized as double hearsay.
MASTER SCOLD HIM ABOUT THIS N CORRECT HIS
ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND
THEN SAID THAT HE WILL COME BACK HOME. In any event, under Article 282 of the Labor Code, 44 an
employer may terminate an employee for gross and habitual
neglect of duties. Neglect of duty, to be a ground for dismissal,
FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. must be both gross and habitual. Gross negligence connotes
WAGE SCALE. want of care in the performance of one’s duties. Habitual
neglect implies repeated failure to perform one’s duties for a
MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION period of time, depending upon the circumstances. A single or
WITH I.E.U. isolated act of negligence does not constitute a just cause for
the dismissal of the employee.45
PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39
Petitioner’s supposed absence from watch duty in a single
The second fax message dated 20 January 1997 pertained to isolated instance is neither gross nor habitual negligence.
a report of crew discharge essentially containing the same Without question, the alleged lapse did not result in any
76
untoward incident. If there was any serious aftermath, the Pursuant to Section 10 of Republic Act No. 8042 54 or the
incident should have been recorded in the ship’s logbook and Migrant Worker’s Act, employees who are unjustly dismissed
presented by private respondent to substantiate its claim. from work are entitled to an amount representing their three (3)
Instead, private respondent belittled the probative value of the months’ salary considering that their employment contract has
logbook and dismissed it as self-serving. Quite the contrary, a term of exactly one (1) year plus a full refund of his
the ship’s logbook is the repository of all activities and placement fee, with interest at 12% per annum.55
transactions on board a vessel. Had the route invasion been so
serious as to merit petitioner’s dismissal, then it would have IN LIGHT OF THE FOREGOING, the petition is GRANTED.
been recorded in the logbook. Private respondent would have The Decision of the Court of Appeals is REVERSED and SET
then had all the more reason to preserve it considering that ASIDE. The Decision of the NLRC is REINSTATED with the
vital pieces of information are contained therein. MODIFICATION that in addition to the payment of the sum
equivalent to petitioner’s three (3) months’ salary, the full
In Haverton Shipping Ltd. v. NLRC,46 the Court held that the amount of placement fee with 12% legal interest must be
vessel’s logbook is an official record of entries made by a refunded.
person in the performance of a duty required by law. 47 In
Abacast Shipping and Management Agency, Inc. v. NLRC,48 a SO ORDERED.
case cited by petitioner, the logbook is a respectable record
that can be relied upon to authenticate the charges filed and
the procedure taken against the employees prior to their
dismissal.49 In Wallem Maritime Services, Inc. v. NLRC,50 the
logbook is a vital evidence as Article 612 of the Code of
Commerce requires the ship captain to keep a record of the
decisions he had adopted as the vessel's head. 51 Therefore,
the non-presentation of the logbook raises serious doubts as to
whether the incident did happen at all.
77
G.R. No. 181354 February 27, 2013
DECISION
MENDOZA, J.:
CONTRARY TO LAW.3
78
On August 15, 1989, on the eve of the barangay fiesta in San Based on the Autopsy Report,12 it appeared that the victim
Roque, Alaminos, Laguna, certain visitors, Ronnie de Mesa, suffered four gunshot wounds in the different parts of his body,
Noli de Mesa, Marvin Avenido, and Duran, were drinking at the specifically: on the medial portion of the left shoulder, between
terrace of the house of Jesus. They started drinking at 8:30 the clavicle and the first rib; on the left hypogastric region
o’clock in the evening. Jesus, however, joined his visitors only through the upper right quadrant of the abdomen; on the tip of
at around 11:00 o’clock after he and his wife arrived from Sta. the left buttocks to the tip of the sacral bone or hip bone; and
Rosa, Laguna, where they tried to settle a problem regarding a on the right flank towards the umbilicus. The victim died of
vehicular accident involving one of their children. The drinking massive intra-abdominal hemorrhage due to laceration of the
at the terrace was ongoing when Flores arrived with an M-16 liver.
armalite rifle.4
The Version of the Defense
Duran testified that Jesus stood up from his seat and met
Flores who was heading towards the terrace. After glancing at To avoid criminal liability, Flores interposed self-defense.
the two, who began talking to each other near the terrace,
Duran focused his attention back to the table. Suddenly, he
heard several gunshots prompting him to duck under the table. Flores claimed that in the evening of August 15, 1989, he,
Right after the shooting, he looked around and saw the together with four members of the CAFGU and Civil Service
bloodied body of Jesus lying on the ground. By then, Flores Unit (CSU), Maximo Manalo, Maximo Latayan (Latayan),
was no longer in sight.5 Ronilo Haballa, and Romulo Alquizar, upon the instructions of
Mayor Samuel Bueser of Alaminos, Laguna, conducted a
ronda in Barangay San Roque which was celebrating the eve
Duran immediately helped board Jesus in an owner-type jeep of its fiesta.13
to be brought to a hospital. Thereafter, Duran, Ronnie de Mesa
and Noli de Mesa went home. Jesus was brought to the
hospital by his wife and children. Duran did not, at any time At around midnight, the group was about 15 meters from the
during the occasion, notice the victim carrying a gun with him. 6 house of Jesus, who had earlier invited them for some
"bisperas" snacks, when they heard gunshots seemingly
emanating from his house. Flores asked the group to stay
Gerry narrated that he was going in and out of their house behind as he would try to talk to Jesus, his cousin, to spare the
before the shooting incident took place, anxiously waiting for shooting practice for the fiesta celebration the following day. As
the arrival of his parents from Sta. Rosa, Laguna. His parents he started walking towards the house, he was stopped by
were then attending to his problem regarding a vehicular Latayan and handed him a baby armalite. He initially refused
accident. When they arrived, Gerry had a short conversation but was prevailed upon by Latayan who placed the weapon
with his father, who later joined their visitors at the terrace. 7 over his right shoulder, with its barrel or nozzle pointed to the
ground. Latayan convinced Flores that such posture would
Gerry was outside their house when he saw Flores across the gain respect from the people in the house of Jesus.14
street in the company of some members of the CAFGU. He
was on his way back to the house when he saw Flores and his Flores then proceeded to the terrace of the house of Jesus,
father talking to each other from a distance of about six (6) who was having a drinking spree with four others. In a calm
meters. Suddenly, Flores shot his father, hitting him on the and courteous manner, Flores asked Jesus and his guests to
right shoulder. Flores continued shooting even as Jesus was cease firing their guns as it was already late at night and to
already lying flat on the ground. Gerry testified that he felt hurt save their shots for the following day’s fiesta procession. Flores
to have lost his father.8 claimed that despite his polite, unprovocative request and the
fact that he was a relative of Jesus and the barangay
Elisa related that she was on her way from the kitchen to serve chairman, a person in authority performing a regular routine
"pulutan" to their visitors when she saw Flores, from their duty, he was met with hostility by Jesus and his guests. Jesus,
window, approaching the terrace. By the time she reached the who appeared drunk, immediately stood up and approached
terrace, her husband was already lying on the ground and still
being shot by Flores. After the latter had left, she and her him as he was standing near the entrance of the terrace. Jesus
children rushed him to the hospital where he was pronounced abruptly drew his magnum pistol and poked it directly at his
dead on arrival.9 chest and then fired it. By a twist of fate, he was able to
partially parry Jesus’ right hand, which was holding the pistol,
As a consequence of her husband’s untimely demise, she and was hit on his upper right shoulder.15
suffered emotionally. She testified that Jesus had an average
monthly income of Twenty Thousand Pesos (P20,000.00) With fierce determination, however, Jesus again aimed his gun
before he died at the age of forty-one (41). He left four (4) at Flores, but the latter was able to instinctively take hold of
children. Although she had no receipt, Elisa asked for actual Jesus’ right hand, which was holding the gun. As they wrestled,
damages consisting of lawyer’s fees in the amount of Fifteen Jesus again fired his gun, hitting Flores’ left hand. 16
Thousand Pesos (P15,000.00) plus Five Hundred Pesos
(P500.00) for every hearing, and Six Thousand Five Hundred
Pesos (P6,500.00) for the funeral expenses.10 Twice hit by bullets from Jesus’ magnum pistol and profusely
bleeding from his two wounds, Flores, with his life and limb at
great peril, instinctively swung with his right hand the baby
Dr. Ruben Escueta (Dr. Escueta) testified that on August 17, armalite dangling on his right shoulder towards Jesus and
1989, he conducted an autopsy on the cadaver of Jesus, squeezed its trigger. When he noticed Jesus already lying
whom he assessed to have died at least six (6) hours before prostrate on the floor, he immediately withdrew from the house.
his body was brought to him.11 As he ran towards the coconut groves, bleeding and utterly
bewildered over the unfortunate incident that just transpired
79
between him and his cousin Jesus, he heard more gunshots. WHETHER THE SANDIGANBAYAN, FIRST DIVISION,
Thus, he continued running for fear of more untoward incidents GRAVELY ERRED IN NOT GIVING DUE CREDIT TO
that could follow. He proceeded to the Mayor’s house in PETITIONER’S CLAIM OF SELF-DEFENSE
Barangay San Gregorio, Alaminos, Laguna, to report what had
happened. There, he found his ronda groupmates.17 (II)
The incident was also reported the following day to the CAFGU WHETHER THE SANDIGANBAYAN, FIRST DIVISION,
Superior, Sgt. Alfredo Sta. Ana. COMMITTED SERIOUS BUT REVERSIBLE ERRORS IN
ARRIVING AT ITS FINDINGS AND CONCLUSIONS
Decision of the Sandiganbayan
(III)
On August 27, 2004, after due proceedings, the
Sandiganbayan issued the assailed decision 18 finding Flores WHETHER THE SANDIGANBAYAN, FIRST DIVISION,
guilty of the offense charged. The Sandiganbayan rejected COMMITTED A GRAVE ERROR IN NOT ACQUITTING
Flores’ claim that the shooting was justified for failure to prove PETITIONER OF THE CRIME CHARGED22
self-defense. It gave credence to the consistent testimonies of
the prosecution witnesses that Flores shot Jesus with an
armalite rifle (M16) which resulted in his death. According to The Court will first resolve the procedural issue raised by
the Sandiganbayan, there was no reason to doubt the Flores in this petition.
testimonies of the said witnesses who appeared to have no ill
motive to falsely testify against Flores. The dispositive portion Flores claims that the outright denial of his motion for
of the said decision reads: reconsideration by the Sandiganbayan on a mere technicality
amounts to a violation of his right to due process. The
WHEREFORE, judgment is hereby rendered in Criminal Case dismissal rendered final and executory the assailed decision
No. 16946 finding the accused Simon A. Flores GUILTY which was replete with baseless conjectures and conclusions
beyond reasonable doubt of the crime of homicide and to suffer that were contrary to the evidence on record. He points out that
the penalty of 10 years and 1 day of prision mayor maximum, a relaxation of procedural rules is justified by the merits of this
as minimum, to 17 years, and 4 months of reclusion temporal case as the facts, viewed from the proper and objective
medium, as maximum. The accused is hereby ordered to pay perspective, indubitably demonstrate selfdefense on his part.
the heirs of the victim Fifty Thousand Pesos (P50,000.00) as
civil indemnity for the death of Jesus Avenido, another Fifty Flores argues that he fully complied with the requirements of
Thousand Pesos (P50,000.00) as moral damages, and Six Section 2 of Rule 37 and Section 4 of Rule 121 of the Rules of
Thousand Five Hundred Pesos (P6,500.00) as actual or Court when the motion itself was served upon the prosecution
compensatory damages. and the latter, in fact, admitted receiving a copy. For Flores,
such judicial admission amounts to giving due notice of the
SO ORDERED.19 motion which is the intent behind the said rules. He further
argues that a hearing on a motion for reconsideration is not
necessary as no further proceeding, such as a hearing, is
Flores filed a motion for the reconsideration. As the motion did required under Section 3 of Rule 121.
not contain any notice of hearing, the Prosecution filed its
Motion to Expunge from the Records Accused’s Motion for
Reconsideration."20 Flores’ argument fails to persuade this Court.
In its Resolution, dated November 29, 2007, the Section 5, Rule 15 of the Rules of Court reads:
Sandiganbayan denied the motion for being a mere scrap of
paper as it did not contain a notice of hearing and disposed as SECTION 5. Notice of hearing. – The notice of hearing shall be
follows: addressed to all parties concerned, and shall specify the time
and date of the hearing which must not be later than ten (10)
WHEREFORE, in view of the foregoing, the Motion for days after the filing of the motion.
Reconsideration of accused Flores is considered pro forma
which did not toll the running of the period to appeal, and thus, Section 2, Rule 37 provides:
the assailed judgment of this Court has become FINAL and
EXECUTORY. SEC. 2. Contents of motion for new trial or reconsideration and
notice thereof. – The motion shall be made in writing stating
SO ORDERED.21 the ground or grounds therefore, a written notice of which shall
be served by the movant on the adverse party.
Hence, Flores filed the present petition before this Court on the
ground that the Sandiganbayan committed reversible errors xxxx
involving questions of substantive and procedural laws and
jurisprudence. Specifically, Flores raises the following A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal.
ISSUES
Section 4, Rule 121 states:
(I)
80
SEC. 4. Form of motion and notice to the prosecutor. – The to reserve their shooting for the fiesta when Jesus approached
motion for a new trial or reconsideration shall be in writing and him, drew a magnum pistol and fired at him. The attack by
shall state the grounds on which it is based. X x x. Notice of the Jesus was sudden, unexpected and instantaneous. The intent
motion for new trial or reconsideration shall be given to the to kill was present because Jesus kept pointing the gun directly
prosecutor. at him. As he tried to parry Jesus’ hand, which was holding the
gun, the latter kept firing. Left with no choice, he was
As correctly stated by the Office of the Special Prosecutor compelled to use the baby armalite he was carrying to repel
(OSP), Sec. 2 of Rule 37 and Sec. 4 of Rule 121 should be the attack. He asserts that there was lack of sufficient
read in conjunction with Sec. 5 of Rule 15 of the Rules of provocation on his part as he merely requested Jesus and his
Court. Basic is the rule that every motion must be set for drinking buddies to reserve their shooting for the following day
hearing by the movant except for those motions which the as it was already late at night and the neighbors were already
court may act upon without prejudice to the rights of the asleep.
adverse party.23 The notice of hearing must be addressed to all
parties and must specify the time and date of the hearing, with In effect, Flores faults the Sandiganbayan in not giving weight
proof of service. to the justifying circumstance of self-defense interposed by him
and in relying on the testimonies of the prosecution witnesses
This Court has indeed held, time and again, that under instead.
Sections 4 and 5 of Rule 15 of the Rules of Court, the
requirement is mandatory. Failure to comply with the His argument deserves scant consideration.
requirement renders the motion defective. "As a rule, a motion
without a notice of hearing is considered pro forma and does The issue of whether Flores indeed acted in self-defense is
not affect the reglementary period for the appeal or the filing of basically a question of fact. In appeals to this Court, only
the requisite pleading."24 questions of law may be raised and not issues of fact. The
factual findings of the Sandiganbayan are, thus, binding upon
In this case, as Flores committed a procedural lapse in failing this Court.28 This Court, nevertheless, finds no reason to
to include a notice of hearing, his motion was a worthless piece disturb the finding of the Sandiganbayan that Flores utterly
of paper with no legal effect whatsoever. Thus, his motion was failed to prove the existence of self-defense.
properly dismissed by the Sandiganbayan.
Generally, "the burden lies upon the prosecution to prove the
Flores invokes the exercise by the Court of its discretionary guilt of the accused beyond reasonable doubt rather than upon
power to review the factual findings of the Sandiganbayan. He the accused that he was in fact innocent." If the accused,
avers that the ponente as well as the other members of the however, admits killing the victim, but pleads self-defense, the
First Division who rendered the assailed decision, were not burden of evidence is shifted to him to prove such defense by
able to observe the witnesses or their manner of testifying as clear, satisfactory and convincing evidence that excludes any
they were not present during the trial.25 He, thus, argues that vestige of criminal aggression on his part. To escape liability, it
there was palpable misapprehension of the facts that led to now becomes incumbent upon the accused to prove by clear
wrong conclusions of law resulting in his unfounded conviction. and convincing evidence all the elements of that justifying
circumstance.29
His contention is likewise devoid of merit.
In this case, Flores does not dispute that he perpetrated the
"It is often held that the validity of a decision is not necessarily killing of Jesus by shooting him with an M16 armalite rifle. To
impaired by the fact that the ponente only took over from a justify his shooting of Jesus, he invoked self-defense. By
colleague who had earlier presided at the trial, unless there is a interposing self-defense, Flores, in effect, admits the
showing of grave abuse of discretion in the factual findings authorship of the crime. Thus, it was incumbent upon him to
reached by him."26 prove that the killing was legally justified under the
circumstances.
"Moreover, it should be stressed that the Sandiganbayan,
which functions in divisions of three Justices each, is a collegial To successfully claim self-defense, the accused must
body which arrives at its decisions only after deliberation, the satisfactorily prove the concurrence of the elements of self-
exchange of view and ideas, and the concurrence of the defense. Under Article 11 of the Revised Penal Code, any
required majority vote."27 person who acts in defense of his person or rights does not
incur any criminal liability provided that the following
circumstances concur: (1) unlawful aggression; (2) reasonable
In the present case, Flores has not convinced the Court that necessity of the means employed to prevent or repel it; and (3)
there was misapprehension or misinterpretation of the material lack of sufficient provocation on the part of the person
facts nor was the defense able to adduce evidence to establish defending himself.
that the factual findings were arrived at with grave abuse of
discretion. Thus, the Court sustains the Sandiganbayan’s
conclusion that Flores shot Jesus and continued riddling his The most important among all the elements is unlawful
body with bullets even after he was already lying helpless on aggression. "There can be no self-defense, whether complete
the ground. or incomplete, unless the victim had committed unlawful
aggression against the person who resorted to self-defense."30
"Unlawful aggression is defined as an actual physical assault,
Flores insists that the evidence of this case clearly established or at least a threat to inflict real imminent injury, upon a person.
all the elements of self-defense. According to him, there was In case of threat, it must be offensive and strong, positively
an unlawful aggression on the part of Jesus. He was just at the showing the wrongful intent to cause injury. It presupposes
entrance of Jesus’ terrace merely advising him and his guests
81
actual, sudden, unexpected or imminent danger––not merely with guns, having previously worked as a policeman.1âwphi1
threatening and intimidating action. It is present only when the In addition, the latter was relatively young, at the age of 41,
one attacked faces real and immediate threat to one’s life."31 when the incident happened. The Court therefore finds it
"Aggression, if not continuous, does not constitute aggression difficult to accept how the victim could miss when he allegedly
warranting self-defense."32 shot the accused at such close range if, indeed, he really had a
gun and intended to harm the accused. We find it much less
In this case, Flores failed to discharge his burden. acceptable to believe how the accused allegedly overpowered
the victim so easily and wrestled the gun from the latter,
despite allegedly having been hit earlier on his right shoulder.
The Court agrees with the Sandiganbayan’s assessment of the
credibility of witnesses and the probative value of evidence on
record. As correctly noted by the Sandiganbayan, the defense Finally, it hardly inspires belief for the accused to have
evidence, both testimonial and documentary, were crowded allegedly unlocked, with such ease, the armalite rifle (M16) he
with flaws which raised serious doubt as to its credibility, to wit: held with one hand, over which he claims to have no
experience handling, while his right shoulder was wounded and
he was grappling with the victim.33 (Underscoring supplied
First, the accused claims that Jesus Avenido shot him on his citations omitted)
right shoulder with a magnum handgun from a distance of
about one (1) meter. With such a powerful weapon, at such
close range, and without hitting any hard portion of his body, it The foregoing circumstances indeed tainted Flores’ credibility
is quite incredible that the bullet did not exit through the and reliability, his story being contrary to ordinary human
accused’s shoulder. On the contrary, if he were hit on the part experience. "Settled is the rule that testimonial evidence to be
where the ball and socket were located, as he tried to make it believed must not only proceed from the mouth of a credible
appear later in the trial, it would be very impossible for the witness but must foremost be credible in itself. Hence, the test
bullet not to have hit any of the bones located in that area of to determine the value or credibility of the testimony of a
his shoulder. witness is whether the same is in conformity with common
knowledge and is consistent with the experience of mankind." 34
Second, Simon Flores executed an affidavit on September 2,
1989. Significantly, he did not mention anything about a bullet The Court also sustains the finding that the testimony of Dr.
remaining on his shoulder. If indeed a bullet remained lodged Bagamasbad, adduced to prove that Flores was shot by Jesus,
in his shoulder at the time he executed his affidavit, it defies has no probative weight for being hearsay. As correctly found
logic why he kept mum during the preliminary investigation by the Sandiganbayan:
when it was crucial to divulge such fact if only to avoid the
trouble of going through litigation. To wait for trial before finally The testimony of defense witness Dr. Bagamasbad, cannot be
divulging such a very material information, as he claimed, of any help either since the same is in the nature of hearsay
simply stretches credulity. evidence. Dr. Bagamasbad’s testimony was a mere re-
statement of what appeared as entries in the hospital logbook
Third, in his feverish effort of gathering evidence to establish (EXH. "8-a"), over which he admitted to possess no personal
medical treatment on his right shoulder, the accused knowledge. The photocopy of the logbook itself does not
surprisingly did not bother to secure the x-ray plate or any possess any evidentiary value since it was not established by
medical records from the hospital. Such valuable pieces of the defense that such evidence falls under any of the
evidence would have most likely supported his case of self- exceptions enumerated in Section 3, Rule 130, which pertain to
defense, even during the preliminary investigation, if they the rules on the admissibility of evidence.35 x x x
actually existed and had he properly presented them. The utter
lack of interest of the accused in retrieving the alleged x-ray Granting for the sake of argument that unlawful aggression
plate or any medical record from the hospital militate against was initially staged by Jesus, the same ceased to exist when
the veracity of his version of the incident. Jesus was first shot on the shoulder and fell to the ground. At
that point, the perceived threat to Flores’ life was no longer
Fourth, the T-shirt presented by the accused in court had a attendant. The latter had no reason to pump more bullets on
hole, apparently from a hard object, such as a bullet, that Jesus’ abdomen and buttocks.
pierced through the same. However, the blood stain is visibly
concentrated only on the area around the hole forming a Indeed, the nature and number of the gunshot wounds inflicted
circular shape. Within five (5) hours and a half from 12:00 upon Jesus further negate the claim of self-defense by the
o’clock midnight when he was allegedly shot, to 5:35 a.m. in accused. Records show that Jesus suffered four (4) gunshot
the early morning of August 16, 1989, when his wounds were wounds in the different parts of his body, specifically: on the
treated, the blood would naturally have dripped down to the medial portion of the left shoulder, between the clavicle and the
hem. The blood on the shirt was not even definitively shown to first rib; on the left hypogastric region through the upper right
be human blood. quadrant of the abdomen; on the tip of the left buttocks to the
tip of the sacral bone or hip bone; and on the right flank
Fifth, Jesus Avenido arrived at his house and joined his visitors towards the umbilicus. According to Dr. Ruben Escueta, who
who were drinking only at 11:00 o’clock in the evening. Both performed the autopsy on the victim, the latter died of massive
parties claim that the shooting incident happened more or less intra-abdominal hemorrhage due to laceration of the liver. 36 If
12:00 midnight. Hence, it is very possible that Jesus Avenido there was any truth to Flores’ claim that he merely acted in
was not yet drunk when the incident in question occurred. self-defense, his first shot on Jesus’ shoulder, which already
Defense witnesses themselves noted that the victim Jesus caused the latter to fall on the ground, would have been
Avenido was bigger in built and taller than the accused. sufficient to repel the attack allegedly initiated by the latter. But
Moreover, the victim was familiar and very much experienced Flores continued shooting Jesus. Considering the number of
gunshot wounds sustained by the victim, the Court finds it
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difficult to believe that Flores acted to defend himself to
preserve his own life. "It has been held in this regard that the
location and presence of several wounds on the body of the
victim provide physical evidence that eloquently refutes
allegations of self-defense."37
84
Aznar filed a motion for reconsideration which the CA credit card cannot be considered as a contract of adhesion
dismissed in its Resolution dated May 26, 2004.29 since Aznar was entirely free to reject the card if he did not
want the conditions stipulated therein; a person whose stature
Parenthetically, the administrative case against Judge De la is such that he is expected to be more prudent with respect to
Peña was activated and on April 29, 2005, the Court’s Third his transactions cannot later on be heard to complain for being
Division30 found respondent judge guilty of knowingly rendering ignorant or having been forced into merely consenting to the
an unjust judgment and ordered his suspension for six months. contract.35
The Court held that Judge De la Peña erred in basing his
Order on a manifestation submitted by Aznar to support his In his Reply, Aznar contended that to a layman, the term
Motion for Reconsideration, when no copy of such "blacklisting" is synonymous with the words "hot list" or
manifestation was served on the adverse party and it was filed "declared overlimit"; and whether his card was blacklisted or
beyond office hours. The Court also noted that Judge De la declared over the limit, the same was dishonored due to the
Peña made an egregiously large award of damages in favor of fault or gross negligence of Citibank.36
Aznar which opened himself to suspicion.31
Aznar also filed a Memorandum raising as issues the following:
Aznar now comes before this Court on a petition for review
alleging that: the CA erroneously made its own factual finding I. Whether or not the augmentation deposit in the
that his Mastercard was not blacklisted when the matter of amount of P485,000.00 of the Petitioner constitutes
blacklisting was already a non-issue in the November 25, 1998 relative extinctive novation;
Order of the RTC; the RTC found that Aznar’s Mastercard was
dishonored for the reason that it was declared over the credit
limit; this factual finding is supported by Exh. "G" and by his II. Whether or not the purchases made by Petitioner
(Aznar’s) testimony; the issue of dishonor on the ground of were beyond his credit limit;
‘DECL OVERLIMIT’, although not alleged in the complaint, was
tried with the implied consent of the parties and should be III. Whether or not the issues of dishonor by reason of
treated as if raised in the pleadings pursuant to Section 5, Rule overlimit was tried with the consent of the parties;
10 of the Rules of Civil Procedure;32 Exh. "G" cannot be
excluded as it qualifies as an electronic evidence following the IV. Whether or not the "On Line Authorization Report"
Rules on Electronic Evidence which provides that print-outs are is an electronic document."
also originals for purposes of the Best Evidence Rule; Exh. "G"
has remained complete and unaltered, apart from the signature
of Nubi, thus the same is reliable for the purpose for which it V. Whether or not the "On Line Authorization Report"
was generated; the RTC judge correctly credited the testimony constitutes electronic evidence;
of Aznar on the issuance of the computer print-out as Aznar
saw that it was signed by Nubi; said testimony constitutes the VI. Whether or not the agreement between the parties
"other evidence showing the integrity and reliability of the print- is a contract of adhesion;
out to the satisfaction of the judge" which is required under the
Rules on Electronic Evidence; the trial court was also correct in
VII. Whether or not the Respondent is negligent in not
finding that Citibank was grossly negligent in failing to credit
crediting the deposits of the Respondent.37
the additional deposit and make the necessary entries in its
systems to prevent Aznar from encountering any embarrassing
situation with the use of his Mastercard.33 Aznar further averred in his Memorandum that Citibank
assured him that with the use of his Mastercard, he would
never be turned down by any merchant store, and that under
Citibank, in its Comment, contends that: Aznar never had
Section 43, Rule 130 of the Rules of Court, Exh. "G" is
personal knowledge that his credit card was blacklisted as he
admissible in evidence.38
only presumed such fact; the issue of dishonor on the ground
that the card was declared over the limit was also never tried
with the implied consent of both parties; Aznar’s self-serving Citibank also filed a Memorandum reiterating its earlier
testimony is not sufficient to prove the integrity and reliability of arguments.39
Exh. "G"; Aznar did not declare that it was Nubi who printed the
document and that said document was printed in his presence Stripped to its essentials, the only question that needs to be
as he merely said that the print-out was provided him; there is answered is: whether Aznar has established his claim against
also no annotation on Exh. "G" to establish that it was Nubi Citibank.
who printed the same; assuming further that Exh. "G" is
admissible and Aznar’s credit card was dishonored, Citibank
The answer is no.
still cannot be held liable for damages as it only shows that
Aznar’s credit card was dishonored for having been declared
over the limit; Aznar’s cause of action against Citibank hinged It is basic that in civil cases, the burden of proof rests on the
on the alleged blacklisting of his card which purportedly caused plaintiff to establish his case based on a preponderance of
its dishonor; dishonor alone, however, is not sufficient to award evidence. The party that alleges a fact also has the burden of
Aznar damages as he must prove that the dishonor was proving it.40
caused by a grossly negligent act of Citibank; the award of
damages in favor of Aznar was based on Article 117034 of the In the complaint Aznar filed before the RTC, he claimed that
Civil Code, i.e., there was fraud, negligence or delay in the Citibank blacklisted his Mastercard which caused its dishonor
performance of its obligation; there was no proof, however that in several establishments in Malaysia, Singapore, and
Citibank committed fraud or delay or that it contravened its Indonesia, particularly in Ingtan Agency in Indonesia where he
obligations towards Aznar; the terms and conditions of the
85
was humiliated when its staff insinuated that he could be a authentic is received in evidence, its due execution and
swindler trying to use a blacklisted card. authenticity must be proved either by (a) anyone who saw the
document executed or written; or (b) by evidence of the
As correctly found by the RTC in its May 29, 1998 Decision, genuineness of the signature or handwriting of the maker.
Aznar failed to prove with a preponderance of evidence that
Citibank blacklisted his Mastercard or placed the same on the Aznar, who testified on the authenticity of Exh. "G," did not
"hot list."41 actually see the document executed or written, neither was he
able to provide evidence on the genuineness of the signature
Aznar in his testimony admitted that he had no personal or handwriting of Nubi, who handed to him said computer print-
knowledge that his Mastercard was blacklisted by Citibank and out. Indeed, all he was able to allege in his testimony are the
only presumed such fact from the dishonor of his card. following:
Q Now, paragraph 12 also states and I quote: "its entry in the Q I show to you a Computer Print Out captioned as On Line
"hot" list was confirmed to be authentic". Authorization Activity Report where it is shown that the
Preferred Master Card Number 5423392007867012 was
denied as per notation on the margin of this Computer Print
Now, who confirmed that the blacklisting of your Preferred Out, is this the document evidencing the dishonor of your
Citibank Mastercard was authentic? Preferred Master Card?
86
(a) by evidence that it had been digitally signed by the 1. the person who made the entry must be dead, or
person purported to have signed the same; unable to testify;
(b) by evidence that other appropriate security 2. the entries were made at or near the time of the
procedures or devices as may be authorized by the transactions to which they refer;
Supreme Court or by law for authentication of
electronic documents were applied to the document; 3. the entrant was in a position to know the facts
or stated in the entries;
(c) by other evidence showing its integrity and 4. the entries were made in his professional capacity
reliability to the satisfaction of the judge. or in the performance of a duty, whether legal,
contractual, moral or religious; and
Aznar claims that his testimony complies with par. (c), i.e., it
constitutes the "other evidence showing integrity and reliability 5. the entries were made in the ordinary or regular
of Exh. "G" to the satisfaction of the judge." The Court is not course of business or duty.47
convinced. Aznar’s testimony that the person from Ingtan
Agency merely handed him the computer print-out and that he
thereafter asked said person to sign the same cannot be As correctly pointed out by the RTC in its May 29, 1998
considered as sufficient to show said print-out’s integrity and Decision, there appears on the computer print-out the name of
reliability. As correctly pointed out by Judge Marcos in his May a certain "Victrina Elnado Nubi" and a signature purportedly
29, 1998 Decision, Exh. "G" does not show on its face that it belonging to her, and at the left dorsal side were handwritten
was issued by Ingtan Agency as Aznar merely mentioned in the words "Sorry for the delay since the records had to be
passing how he was able to secure the print-out from the retrieved. Regards. Darryl Mario." It is not clear therefore if it
agency; Aznar also failed to show the specific business was Nubi who encoded the information stated in the print-out
address of the source of the computer print-out because while and was the one who printed the same. The handwritten
the name of Ingtan Agency was mentioned by Aznar, its annotation signed by a certain Darryl Mario even suggests that
business address was not reflected in the print-out.45 it was Mario who printed the same and only handed the print-
out to Nubi. The identity of the entrant, required by the
provision above mentioned, was therefore not established.
Indeed, Aznar failed to demonstrate how the information Neither did petitioner establish in what professional capacity
reflected on the print-out was generated and how the said did Mario or Nubi make the entries, or whether the entries were
information could be relied upon as true. In fact, Aznar to made in the performance of their duty in the ordinary or regular
repeat, testified as follows: course of business or duty.
ATTY. NERI And even if Exh. "G" is admitted as evidence, it only shows that
the use of the credit card of petitioner was denied because it
Q Now, paragraph 12 also states and I quote: "its entry in the was already over the limit. There is no allegation in the
"hot" list was confirmed to be authentic" Complaint or evidence to show that there was gross
negligence on the part of Citibank in declaring that the credit
Now, who confirmed that the blacklisting of your Preferred card has been used over the limit.
Citibank Mastercard was authentic?
The Court is also perplexed that stated on Exh. "G" is the
A Okey. When I presented this Mastercard, my card rather, at amount of "6,289,195.10" opposite petitioner's account
the Merchant’s store, I do not know, they called up somebody number, which data, petitioner did not clarify.48 As plaintiff in
for verification then later they told me that "your card is being this case, it was incumbent on him to prove that he did not
denied". So, I am not in a position to answer that. I do not actually incur the said amount which is above his credit limit.
know whom they called up; where they verified. So, when As it is, the Court cannot see how Exh. "G" could help
it is denied that’s presumed to be blacklisted.46 (Emphasis petitioner's claim for damages.
supplied)
The claim of petitioner that Citibank blacklisted his card
Aznar next invokes Section 43 of Rule 130 of the Rules of through fraud or gross negligence is likewise effectively
Court, which pertains to entries in the course of business, to negated by the evidence of Citibank which was correctly
support Exh. "G". Said provision reads: upheld by the RTC and the CA, to wit:
Sec. 43. Entries in the course of business. – Entries made at, xxx Mr. Dennis Flores, the Head of the Credit Card Department
or near the time of the transactions to which they refer, by a of defendant Bank, presented documents known as Warning
person deceased or unable to testify, who was in a position to Cancellation Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits
know the facts therein stated, may be received as prima facie ‘3’, ‘3-1’ to ‘3-38’, ‘4’, ‘4-1’ to ‘4-38’ ‘5’, ‘5-1’ to ‘5-39’ and ‘6’, ‘6-
evidence, if such person made the entries in his professional 1’ to ‘6-39’), for August 7, 1994 (Exhibit[s] ‘7’, ‘7-1’ to ‘7-37’), for
capacity or in the performance of duty and in the ordinary or August 8, 1994 (Exhibit[s] ‘8’, ‘8-1’ to ‘8-20’) which show that
regular course of business or duty. plaintiff’s Citibank preferred mastercard was not placed in a hot
list or was not blacklisted.
Under this rule, however, the following conditions are required:
The Warning Cancellation Bulletins (WCB) (Exhibits ‘3’, ‘4’, ‘5’,
‘6’, ‘7’, ‘8’ and their submarkings) which covered the period of
87
four (4) days in July 1994 (from July 10, 17, 24 and 31, 1994), or before?
and two (2) days in August 1994, (August 7 and 8, 1994), when
plaintiff traveled in the aforementioned Asian countries showed A After the account was augmented, Your Honor, because
that said Citibank preferred mastercard had never been placed there is no way we can approve a P250,000.00 purchase with
in a ‘hot list’ or the same was blacklisted, let alone the fact that a P150,000.00 credit limit.51
all the credit cards which had been cancelled by the defendant
bank were all contained, reported and listed in said Warning
Cancellation Bulletin which were issued and released on a xxx
regular basis.
ATTY. NERI:
These three hundred (300) Warning Cancellation Bulletins
pieces of documentary proofs, all in all, adduced by defendant For the record, your honor, the deposit of P450,000.00 was
pointed to the fact that said plaintiff’s credit car (sic) was not made as per exhibit of the plaintiff on June 28. The
among those found in said bulletins as having been cancelled purchase of the tickets amount to P237,000.00 was
for the period for which the said bulletins had been issued. approved and debited on the account of Mr. Aznar on July
20, your honor. The deposit was made about a month
Between said computer print out (Exhibit ‘G’) and the Warning before the purchase of the tickets as per documentary
Cancellation Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings) exhibits, your honor.
the latter documents adduced by defendant are entitled to
greater weight than that said computer print out presented by COURT:
plaintiff that bears on the issue of whether the plaintiff’s
preferred master card was actually placed in the ‘hot list’ or So, Atty. Navarro, what do you say to that explanation?
blacklisted for the following reasons:
Q When was this ticket purchased, after the account was xxxx
augmented
88
15. LIMITATION OF LIABILITY. In any action arising from this The breach must be wanton, reckless, malicious or in bad faith,
agreement or any incident thereto which [the cardholder] or oppressive or abusive.61
any other party may file against [Citibank], [Citibank’s] liability
shall not exceed One Thousand Pesos [P1,000.00] or the While the Court commiserates with Aznar for whatever undue
actual damages proven, whichever is lesser.53 embarrassment he suffered when his credit card was
dishonored by Ingtan Agency, especially when the agency’s
On this point, the Court agrees with Aznar that the terms and personnel insinuated that he could be a swindler trying to use
conditions of Citibank’s Mastercard constitute a contract of blacklisted cards, the Court cannot grant his present petition as
adhesion. It is settled that contracts between cardholders and he failed to show by preponderance of evidence that Citibank
the credit card companies are contracts of adhesion, so-called, breached any obligation that would make it answerable for said
because their terms are prepared by only one party while the suffering.
other merely affixes his signature signifying his adhesion
thereto.54 As the Court pronounced in BPI Express Card Corporation v.
Court of Appeals,62
In this case, paragraph 7 of the terms and conditions states
that "[Citibank is] not responsible if the Card is not honored by We do not dispute the findings of the lower court that private
any merchant affiliate for any reason x x x". While it is true that respondent suffered damages as a result of the cancellation of
Citibank may have no control of all the actions of its merchant his credit card. However, there is a material distinction between
affiliates, and should not be held liable therefor, it is incorrect, damages and injury. Injury is the illegal invasion of a legal right;
however, to give it blanket freedom from liability if its card is damage is the loss, hurt, or harm which results from the injury;
dishonored by any merchant affiliate for any reason. Such and damages are the recompense or compensation awarded
phrase renders the statement vague and as the said terms and for the damage suffered. Thus, there can be damage without
conditions constitute a contract of adhesion, any ambiguity in injury to those instances in which the loss or harm was not the
its provisions must be construed against the party who result of a violation of a legal duty. In such cases, the
prepared the contract,55 in this case Citibank. consequences must be borne by the injured person alone, the
law affords no remedy for damages resulting from an act which
Citibank also invokes paragraph 15 of its terms and conditions does not amount to a legal injury or wrong. These situations
which limits its liability to P1,000.00 or the actual damage are often called damnum absque injuria.63
proven, whichever is lesser.
WHEREFORE, the petition is denied for lack of merit.
Again, such stipulation cannot be considered as valid for being
unconscionable as it precludes payment of a larger amount SO ORDERED.
even though damage may be clearly proven. This Court is not
precluded from ruling out blind adherence to the terms of a
contract if the attendant facts and circumstances show that
they should be ignored for being obviously too one-sided.56
G.R. No. 169606 November 27, 2009
The invalidity of the terms and conditions being invoked by
Citibank, notwithstanding, the Court still cannot award BERNARDO B. JOSE, JR., Petitioner,
damages in favor of petitioner. vs.
MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING
It is settled that in order that a plaintiff may maintain an action SERVICES, INC., Respondents.
for the injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the DECISION
defendant owed to the plaintiff – a concurrence of injury to the
plaintiff and legal responsibility by the person causing it. The CARPIO, J.:
underlying basis for the award of tort damages is the premise
that an individual was injured in contemplation of law; thus
there must first be a breach before damages may be awarded The Case
and the breach of such duty should be the proximate cause of
the injury.57 This is a petition1 for review on certiorari under Rule 45 of
the Rules of Court. The petition challenges the 11 May
It is not enough that one merely suffered sleepless nights, 2005 Decision2 and 5 August 2005 Resolution3 of the Court
mental anguish or serious anxiety as a result of the actuations of Appeals in CA-G.R. SP No. 83272. The Court of Appeals
of the other party. It is also required that a culpable act or set aside the 19 January4 and 22 March5 2004 Resolutions
omission was factually established, that proof that the wrongful of the National Labor Relations Commission (NLRC) in
act or omission of the defendant is shown as the proximate NLRC NCR CA No. 036666-03 and reinstated the 18 June
cause of the damage sustained by the claimant and that the 2003 Decision6 of the Labor Arbiter in NLRC NCR OFW
case is predicated on any of the instances expressed or Case No. (M)02-12-3137-00.
envisioned by Arts. 221958 and 222059 of the Civil Code.60
The Facts
In culpa contractual or breach of contract, moral damages are
recoverable only if the defendant has acted fraudulently or in Michaelmar Philippines, Inc. (MPI) is the Philippine agent of
bad faith, or is found guilty of gross negligence amounting to Michaelmar Shipping Services, Inc. (MSSI). In an undertaking 7
bad faith, or in wanton disregard of his contractual obligations. dated 2 July 2002 and an employment contract8 dated 4 July
89
2002, MSSI through MPI engaged the services of Bernardo B. Jose, Jr. was allowed to continue performing his duties on
Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment board the M/T Limar from 8 October to 29 November 2002. In
contract stated: the Sea Going Staff Appraisal Report11 on Jose Jr.’s work
performance for the period of 1 August to 28 November 2002,
That the employee shall be employed on board under the Jose, Jr. received a 96% total rating and was described as very
following terms and conditions: hardworking, trustworthy, and reliable.
Hours of Work 48 HOURS/WEEK Jose, Jr. filed with the NLRC a complaint against MPI and
MSSI for illegal dismissal with claim for his salaries for the
US$ 386.00 FIXED OT. 105 unexpired portion of the employment contract.
Overtime
HRS/ MOS.
The Labor Arbiter’s Ruling
Vacation Leave US$ 190.00 & US$ 150
with Pay OWNERS BONUS
In her 18 June 2003 Decision, the Labor Arbiter dismissed the
complaint for lack of merit. The Labor Arbiter held that:
Point of Hire MANILA, PHILIPPINES9
Under legal rules of evidence, not all unsigned documents or Finally, the fact that the respondent obtained negative results
papers fail the test of admissibility. There are kinds of evidence in subsequent drug tests in the Philippines does not negate the
known as exceptions to the hearsay rule which need not be findings made of his condition on board the vessel. A drug test
invariably signed by the author if it is clear that it issues from can be negative if the user undergoes a sufficient period of
him because of necessity and under circumstances that abstinence before taking the test. Unlike the tests made at his
safeguard the trustworthiness of the paper. A number of instance, the drug test on the vessel was unannounced. The
evidence of this sort are called entries in the course of credibility of the first test is, therefore, greater than the
business, which are transactions made by persons in the subsequent ones.18
regular course of their duty or business. We agree with the
labor arbiter that the drug test result constitutes entries made in Jose, Jr. filed a motion19 for reconsideration. In its 5 August
the ordinary or regular course of duty of a responsible officer of 2005 Resolution, the Court of Appeals denied the motion for
the vessel. The tests administered to the crew were routine lack of merit. Hence, the present petition.
measures of the vessel conducted to enforce its stated policy,
and it was a matter of course for medical reports to be issued In a motion20 dated 1 August 2007, MPI and MSSI prayed that
and released by the medical officer. The ship’s physician at they be substituted by OSG Ship Management Manila, Inc. as
Curacao under whom the tests were conducted was admittedly respondent in the present case. In a Resolution 21 dated 14
Dr. Heath. It was under his name and with his handwritten November 2007, the Court noted the motion.
comments that the report on the respondent came out, and
there is no basis to suspect that these results were issued
other than in the ordinary course of his duty. As the labor The Issues
arbiter points out, the drug test report is evidence in itself and
does not require additional supporting evidence except if it In his petition dated 13 September 2005, Jose, Jr. claims that
appears that the drug test was conducted not in accordance he was illegally dismissed from employment for two reasons:
with drug testing procedures. Nothing of the sort, he says, has (1) there is no just cause for his dismissal because the drug
even been suggested in this particular case. test result is unsigned by the doctor, and (2) he was not
afforded due process. He stated that:
The regularity of the procedure observed in the administration
and reporting of the tests is the very assurance of the report’s 2. The purported drug test result conducted to petitioner
admissibility and credibility under the laws of the evidence. We indicates, among others, the following: [sic] typwritten words
see no reason why it cannot be considered substantial ‘Hool: Drs. R.R.L.. [sic] Petronia Apotheker" [sic] and :THC-
evidence, which, parenthetically, is the lowest rung in the COOH POS." [sic]; the handwritten word "Marihuana"; and the
ladder of evidence. It is from the fact that a report or entry is a stamped words "Dr. A.R.A Heath, MD", "SHIP’S DOCTOR"
part of the regular routine work of a business or profession that and "29 OKT. 2002." However, said test result does not contain
it derives its value as legal evidence. any signature, much less the signature of any of the doctors
whose name [sic] were printed therein. This omission is fatal as
it goes to the veracity of the said purported drug test result.
92
Consequently, the purported drug test result cannot be comments that the report on the respondent came out, and
deemed as substantial proof that petitioner violated his there is no basis to suspect that these results were issued
employer’s "no alcohol, no drug policy’ [sic]. other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and
xxxx does not require additional supporting evidence except if it
appears that the drug test was conducted not in accordance
with drug testing procedures. Nothing of the sort, he says, has
Even assuming arguendo that there was just cause, even been suggested in this particular case. 23 (Emphasis
respondents miserably failed to show that the presence of supplied)
the petitioner in the vessel constitutes a clear and existing
danger to the safety of the crew or the vessel. x x x
Jose, Jr. claims that the Court of Appeals erred when it ruled
that there was just cause for his dismissal. The Court is not
xxxx impressed. In a petition for review on certiorari under Rule 45
of the Rules of Court, a mere statement that the Court of
It is a basic principle in Labor Law that in termination disputes, Appeals erred is insufficient. The petition must state the law or
the burden is on the employer to show that the dismissal was jurisprudence and the particular ruling of the appellate court
for a just and valid cause. x x x violative of such law or jurisprudence. In Encarnacion v. Court
of Appeals,24 the Court held that:
xxxx
Petitioner asserts that there is a question of law involved in this
x x x [T]he Honorable Labor Arbiter as well as the Honorable appeal. We do not think so. The appeal involves an
Court of Appeals clearly erred in ruling that there was just appreciation of facts, i.e., whether the questioned decision is
cause for the termination of petitioner’s employment. supported by the evidence and the records of the case. In
Petitioner’s employment was terminated on the basis only of a other words, did the Court of Appeals commit a reversible error
mere allegation that is unsubstantiated, unfounded and on the in considering the trouble record of the subject telephone? Or
basis of the drug test report that was not even signed by the is this within the province of the appellate court to consider?
doctor who purportedly conducted such test. Absent grave abuse of discretion, this Court will not reverse the
appellate court’s findings of fact.
The Court’s Ruling In the present case, Jose, Jr. did not show that the Court of
Appeals’ ruling is violative of any law or jurisprudence. Section
43, Rule 130, of the Rules of Court states:
In its 11 May 2005 Decision, the Court of Appeals held that
there was just cause for Jose, Jr.’s dismissal. The Court of
Appeals gave credence to the drug test result showing that SEC. 43. Entries in the course of business. — Entries made at,
Jose, Jr. was positive for marijuana. The Court of Appeals or near the time of the transactions to which they refer, by a
considered the drug test result as part of entries in the course person deceased, or unable to testify, who was in a position to
of business. The Court of Appeals held that: know the facts therein stated, may be received as prima facie
evidence, if such person made the entries in his professional
capacity or in the performance of duty and in the ordinary or
Under legal rules of evidence, not all unsigned documents or regular course of business or duty.1avvphi1
papers fail the test of admissibility. There are kinds of evidence
known as exceptions to the hearsay rule which need not be
invariably signed by the author if it is clear that it issues from In Canque v. Court of Appeals,25 the Court laid down the
him because of necessity and under circumstances that requisites for admission in evidence of entries in the course of
safeguard the trustworthiness of the paper. A number of business: (1) the person who made the entry is dead, outside
evidence of this sort are called entries in the course of the country, or unable to testify; (2) the entries were made at or
business, which are transactions made by persons in the near the time of the transactions to which they refer; (3) the
regular course of their duty or business. We agree with the person who made the entry was in a position to know the facts
labor arbiter that the drug test result constitutes entries made in stated in the entries; (4) the entries were made in a
the ordinary or regular course of duty of a responsible officer of professional capacity or in the performance of a duty; and (5)
the vessel. The tests administered to the crew were routine the entries were made in the ordinary or regular course of
measures of the vessel conducted to enforce its stated policy, business or duty.
and it was a matter of course for medical reports to be issued
and released by the medical officer. The ship’s physician at Here, all the requisites are present: (1) Dr. Heath is outside the
Curacao under whom the tests were conducted was admittedly country; (2) the entries were made near the time the random
Dr. Heath. It was under his name and with his handwritten drug test was conducted; (3) Dr. Heath was in a position to
93
know the facts made in the entries; (4) Dr. Heath made the grave or whimsical abuse on its part, findings of fact of the
entries in his professional capacity and in the performance of appellate court will not be disturbed. The Supreme Court will
his duty; and (5) the entries were made in the ordinary or only exercise its power of review in known exceptions such as
regular course of business or duty. gross misappreciation of evidence or a total void of evidence."
Jose, Jr. failed to show that the Court of Appeals gravely
The fact that the drug test result is unsigned does not abused its discretion.
necessarily lead to the conclusion that Jose, Jr. was not found
positive for marijuana. In KAR ASIA, Inc. v. Corona,26 the Court Article 282(a) of the Labor Code states that the employer may
admitted in evidence unsigned payrolls. In that case, the Court terminate an employment for serious misconduct. Drug use in
held that: the premises of the employer constitutes serious misconduct.
In Bughaw, Jr. v. Treasure Island Industrial Corporation,30 the
Entries in the payroll, being entries in the course of business, Court held that:
enjoy the presumption of regularity under Rule 130, Section 43
of the Rules of Court. It is therefore incumbent upon the The charge of drug use inside the company’s premises and
respondents to adduce clear and convincing evidence in during working hours against petitioner constitutes serious
support of their claim. Unfortunately, respondents’ naked misconduct, which is one of the just causes for termination.
assertions without proof in corroboration will not suffice to Misconduct is improper or wrong conduct. It is the
overcome the disputable presumption. transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and
In disputing the probative value of the payrolls for December implies wrongful intent and not merely an error in judgment.
1994, the appellate court observed that the same contain only The misconduct to be serious within the meaning of the Act
the signatures of Ermina Daray and Celestino Barreto, the must be of such a grave and aggravated character and not
paymaster and the president, respectively. It further opined that merely trivial or unimportant. Such misconduct, however
the payrolls presented were only copies of the approved serious, must nevertheless, in connection with the work of the
payment, and not copies disclosing actual payment. employee, constitute just cause for his separation. This Court
took judicial notice of scientific findings that drug abuse can
damage the mental faculties of the user. It is beyond question
The December 1994 payrolls contain a computation of the therefore that any employee under the influence of drugs
amounts payable to the employees for the given period, cannot possibly continue doing his duties without posing a
including a breakdown of the allowances and deductions on serious threat to the lives and property of his co-workers and
the amount due, but the signatures of the respondents are even his employer. (Emphasis supplied)
conspicuously missing. Ideally, the signatures of the
respondents should appear in the payroll as evidence of actual
payment. However, the absence of such signatures does not Jose, Jr. claims that he was not afforded due process. The
necessarily lead to the conclusion that the December 1994 Court agrees. There are two requisites for a valid dismissal: (1)
COLA was not received. (Emphasis supplied) there must be just cause, and (2) the employee must be
afforded due process.31 To meet the requirements of due
process, the employer must furnish the employee with two
In the present case, the following facts are established (1) written notices — a notice apprising the employee of the
random drug tests are regularly conducted on all officers and particular act or omission for which the dismissal is sought and
crew members of M/T Limar; (2) a random drug test was another notice informing the employee of the employer’s
conducted at the port of Curacao on 8 October 2002; (3) Dr. decision to dismiss. In Talidano v. Falcon Maritime & Allied
Heath was the authorized physician of M/T Limar; (4) the drug Services, Inc.,32 the Court held that:
test result of Jose, Jr. showed that he was positive for
marijuana; (5) the drug test result was issued under Dr.
Heath’s name and contained his handwritten comments. The [R]espondent failed to comply with the procedural due process
Court of Appeals found that: required for terminating the employment of the employee. Such
requirement is not a mere formality that may be dispensed with
at will. Its disregard is a matter of serious concern since it
The tests administered to the crew were routine measures of constitutes a safeguard of the highest order in response to
the vessel conducted to enforce its stated policy, and it was a man’s innate sense of justice. The Labor Code does not, of
matter of course for medical reports to be issued and released course, require a formal or trial type proceeding before an
by the medical officer. The ship’s physician at Curacao under erring employee may be dismissed. This is especially true in
whom the tests were conducted was admittedly Dr. Heath. It the case of a vessel on the ocean or in a foreign port. The
was under his name and with his handwritten comments that minimum requirement of due process termination proceedings,
the report on the respondent came out, and there is no basis to which must be complied with even with respect to seamen on
suspect that these results were issued other than in the board a vessel, consists of notice to the employees intended to
ordinary course of his duty. As the labor arbiter points out, the be dismissed and the grant to them of an opportunity to
drug test report is evidence in itself and does not require present their own side of the alleged offense or misconduct,
additional supporting evidence except if it appears that the which led to the management’s decision to terminate. To meet
drug test was conducted not in accordance with drug testing the requirements of due process, the employer must furnish
procedures. Nothing of the sort, he says, has even been the worker sought to be dismissed with two written notices
suggested in this particular case.27 before termination of employment can be legally effected, i.e.,
(1) a notice which apprises the employee of the particular acts
Factual findings of the Court of Appeals are binding on the or omissions for which his dismissal is sought; and (2) the
Court. Absent grave abuse of discretion, the Court will not subsequent notice after due hearing which informs the
disturb the Court of Appeals’ factual findings.28 In employee of the employer’s decision to dismiss him.
Encarnacion,29 the Court held that, "unless there is a clearly (Emphasis supplied)
94
In the present case, Jose, Jr. was not given any written notice
about his dismissal. However, the propriety of Jose, Jr.’s
dismissal is not affected by the lack of written notices. When
the dismissal is for just cause, the lack of due process does not
render the dismissal ineffectual but merely gives rise to the
payment of P30,000 in nominal damages.33
SO ORDERED.
DECISION
CORONA, J.:
95
WHEREFORE, finding no reversible error therefrom, the accorded to him by petitioner which resulted in an
Decision now on appeal is hereby AFFIRMED in toto. overdraft / negative balance.
In a decision dated March 31, 1993, the trial court dismissed Neither can we accept petitioner’s argument that the entries
the complaint. It held that petitioner was not able to prove that made by Mercado in the ledger were competent evidence to
respondent owed it the amount claimed considering that the prove how and when the negative balance was incurred.
ledger cards it presented were merely hearsay evidence. On Petitioner invokes Section 43 of Rule 130:
petitioner’s appeal, the CA affirmed the trial court’s decision.
Entries in the course of business. – Entries made at, or near
Hence, this petition anchored on the following grounds: the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know
I. The honorable Court of Appeals erred in not ruling the facts therein stated, may be received as prima facie
that petitioner has sufficiently proved its cause of evidence, if such person made the entries in his professional
action against respondent; and that the ledger cards capacity or in the performance of duty and in the ordinary or
and the testimony of Mr. Patricio Mercado constituted regular course of business or duty.
the best evidence of the transactions made by the
respondent relative to his account. Under this exception to the hearsay rule, the admission in
evidence of entries in corporate books required the satisfaction
II. The honorable Court of Appeals erred in not of the following conditions:
applying the principle of estoppel against respondent
who has benefited from the special arrangement 1. the person who made the entry must be dead, or
unable to testify;
96
2. the entries were made at or near the time of the the information that he received and entered in the ledgers was
transactions to which they refer; incapable of being confirmed by him.
3. the entrant was in a position to know the facts There is good reason why evidence of this nature is incorrigibly
stated in the entries; hearsay. Entries in business records which spring from the
duty of other employees to communicate facts occurring in the
4. the entries were made in his professional capacity ordinary course of business are prima facie admissible, the
or in the performance of a duty, whether legal, duty to communicate being itself a badge of trustworthiness of
contractual, moral or religious; and the entries, but not when they purport to record what were
independent agreements arrived at by some bank officials and
a client. In this case, the entries become mere casual or
5. the entries were made in the ordinary or regular voluntary reports of the official concerned. To permit the
course of business or duty.15 ledgers, prepared by the bank at its own instance, to substitute
the contract as proof of the agreements with third parties, is to
The ledger entries did not meet the first and third requisites. set a dangerous precedent. Business entries are allowed as an
exception to the hearsay rule only under certain conditions
Mercado, petitioner’s bookkeeper who prepared the entries, specified in Section 43, which must be scrupulously observed
was presented to testify on the transactions pertaining to the to prevent them from being used as a source of undue
account of respondent. It was in the course of his testimony advantage for the party preparing them.17 (citations omitted)
that the ledger entries were presented. There was, therefore,
neither justification nor necessity for the presentation of the Thus, petitioner did not prove that respondent had incurred a
entries as the person who made them was available to testify negative balance in his account. Consequently, there was
in court.16 nothing to show that respondent was indebted to it in the
amount claimed.lavvphil.net
Moreover, Mercado had no personal knowledge of the facts
constituting the entries, particularly those entries which Petitioner’s next argument is that respondent was estopped
resulted in the negative balance. He had no knowledge of the from denying the claim of petitioner since he benefited from the
truth or falsity of these entries. We agree entirely with the special arrangement accorded to him resulting in the negative
following discussion of the trial court which was affirmed by the balance. This must likewise fail. The so-called special
CA: arrangement was never established. In addition, there was no
evidence that respondent benefited from it. As held by the CA:
The plaintiff submits that the ledger cards constituted the best
evidence of the transactions made by the defendant with the The trial court satisfactorily explained the reason for not
bank relative to his account, pursuant to Section 43 of Rule applying the principle of estoppel against defendant-appellee.
130 of the Revised Rules on Evidence. There is no question As held by the trial court:
that the entries in the ledgers were made by one whose duty it
was to record transactions in the ordinary or regular course of "There is no scope here for the application of estoppel against
the business. But for the entries to be prima facie evidence of the defendant-appellee, since it was not established that he
the facts recorded, the Rule interpose[s] a very important had ever received copies of the ledgers, and therefore given
condition, one which we think is truly indispensable to the the opportunity to review the correctness of the entries. As we
probative worth of the entries as an exception to the hearsay see it, the case of the [plaintiff suffers from its failure to
rule, and that is that the entrant must be "in a position to know document its] transactions with its clients, and it is hardly right
the facts therein stated." Undeniably, Mr. Mercado was in a to close our eyes to that infirmity at the expense of the
position to know the facts of the check deposits and defendant-appellee."
withdrawals. But the transfers of funds through the debit
memos in question?
The temporary overdraft allegedly accorded by plaintiff-
appellant to defendant-appellee has not benefited the
Let us be clear, at the outset, what the transactions covered by defendant-appellee in any manner. The 3 debit memos
the debit memos are. They are, at bottom, credit amounting to P150,000.00 appearing on defendant-appellee’s
accommodations said to have been granted by the bank’s ledger consisted of fund transfers from and not to defendant-
branch manager Mr. [Q]ui to the defendant, and they are, appellee’s account. The transfers resulted [in] the benefit of
therefore loans, to prove which competent testimonial or other accounts, not that of defendant-appellee.18
documentary evidence must be presented. In the fac[e] of the
denial by the defendant of the existence of any such
agreement, and the absence of any document reflecting it, the In view of the foregoing, the CA did not err in affirming the
testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any decision of the trial court.
witness to the same, would be necessary. The plaintiff failed to
explain why it did not or could not present any party or witness WHEREFORE, the petition is hereby DENIED. The assailed
to the transactions, but even if it had a reason why it could not, decision of the Court of Appeals dated October 18, 2001 in CA-
it is clear that the existence of the agreements cannot be G.R. CV No. 45701 is AFFIRMED in toto.
established through the testimony of Mr. Mercado, for he was
[not in] a position to [know] those facts. As a subordinate, he Costs against petitioner.
could not have done more than record what was reported to
him by his superior the branch manager, and unless he was
allowed to be privy to the latter’s dealings with the defendant,
97
SO ORDERED.
98
BARCELON, ROXAS SECURITIES, INC. (now known as On 6 June 2000, respondent moved for reconsideration of the
UBP Securities, Inc.) Petitioner, aforesaid decision but was denied by the CTA in a Resolution
vs. dated 25 July 2000. Thereafter, respondent appealed to the
COMMISSIONER OF INTERNAL REVENUE, Respondent. Court of Appeals on 31 August 2001. In reversing the CTA
decision, the Court of Appeals found the evidence presented
DECISION by the respondent to be sufficient proof that the tax
assessment notice was mailed to the petitioner, therefore the
legal presumption that it was received should apply. 7 Thus, the
CHICO-NAZARIO, J.: Court of Appeals ruled that:
This is a Petition for Review on Certiorari, under Rule 45 of the WHEREFORE, the petition is hereby GRANTED. The decision
Rules of Court, seeking to set aside the Decision of the Court dated May 17, 2000 as well as the Resolution dated July 25,
of Appeals in CA-G.R. SP No. 60209 dated 11 July 2002, 1 2000 are hereby REVERSED and SET ASIDE, and a new on
ordering the petitioner to pay the Government the amount of entered ordering the respondent to pay the amount of
P826,698.31 as deficiency income tax for the year 1987 plus P826,698.31 as deficiency income tax for the year 1987 plus
25% surcharge and 20% interest per annum. The Court of 25% surcharge and 20% interest per annum from February 6,
Appeals, in its assailed Decision, reversed the Decision of the 1991 until fully paid pursuant to Sections 248 and 249 of the
Court of Tax Appeals (CTA) dated 17 May 2000 2 in C.T.A. Tax Code. 8
Case No. 5662.
Petitioner moved for reconsideration of the said decision but
Petitioner Barcelon, Roxas Securities Inc. (now known as UBP the same was denied by the Court of Appeals in its assailed
Securities, Inc.) is a corporation engaged in the trading of Resolution dated 30 January 2003. 9
securities. On 14 April 1988, petitioner filed its Annual Income
Tax Return for taxable year 1987. After an audit investigation
conducted by the Bureau of Internal Revenue (BIR), Hence, this Petition for Review on Certiorari raising the
respondent Commissioner of Internal Revenue (CIR) issued an following issues:
assessment for deficiency income tax in the amount of
P826,698.31 arising from the disallowance of the item on I
salaries, bonuses and allowances in the amount of
P1,219,093,93 as part of the deductible business expense WHETHER OR NOT LEGAL BASES EXIST FOR THE COURT
since petitioner failed to subject the salaries, bonuses and OF APPEALS’ FINDING THAT THE COURT OF TAX
allowances to withholding taxes. This assessment was covered APPEALS COMMITTED "GROSS ERROR IN THE
by Formal Assessment Notice No. FAN-1-87-91-000649 dated APPRECIATION OF FACTS."
1 February 1991, which, respondent alleges, was sent to
petitioner through registered mail on 6 February 1991.
However, petitioner denies receiving the formal assessment II
notice. 3
WHETHER OR NOT THE COURT OF APPEALS WAS
On 17 March 1992, petitioner was served with a Warrant of CORRECT IN REVERSING THE SUBJECT DECISION OF
Distraint and/or Levy to enforce collection of the deficiency THE COURT OF TAX APPEALS.
income tax for the year 1987. Petitioner filed a formal protest,
dated 25 March 1992, against the Warrant of Distraint and/or III
Levy, requesting for its cancellation. On 3 July 1998, petitioner
received a letter dated 30 April 1998 from the respondent WHETHER OR NOT THE RIGHT OF THE BUREAU OF
denying the protest with finality. 4 INTERNAL REVENUE TO ASSESS PETITIONER FOR
ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
On 31 July 1998, petitioner filed a petition for review with the PRESCRIBED.
CTA. After due notice and hearing, the CTA rendered a
decision in favor of petitioner on 17 May 2000. The CTA ruled IV
on the primary issue of prescription and found it unnecessary
to decide the issues on the validity and propriety of the
assessment. It maintained that while a mailed letter is deemed WHETHER OR NOT THE RIGHT OF THE BUREAU OF
received by the addressee in the course of mail, this is merely INTERNAL REVENUE TO COLLECT THE SUBJECT
a disputable presumption. It reasoned that the direct denial of ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
the petitioner shifts the burden of proof to the respondent that PRESCRIBED.
the mailed letter was actually received by the petitioner. The
CTA found the BIR records submitted by the respondent V
immaterial, self-serving, and therefore insufficient to prove that
the assessment notice was mailed and duly received by the
WHETHER OR NOT PETITIONER IS LIABLE FOR THE
petitioner. 5 The dispositive portion of this decision reads:
ALLEGED DEFICIENCY INCOME TAX ASSESSMENT FOR
1987.
WHEREFORE, in view of the foregoing, the 1988 deficiency
tax assessment against petitioner is hereby CANCELLED.
VI
Respondent is hereby ORDERED TO DESIST from collecting
said deficiency tax. No pronouncement as to costs. 6
99
WHETHER OR NOT THE SUBJECT ASSESSMENT IS would have been signed by the Petitioner or its authorized
VIOLATIVE OF THE RIGHT OF PETITIONER TO DUE representative. And if said documents cannot be located,
PROCESS. 10 Respondent at the very least, should have submitted to the
Court a certification issued by the Bureau of Posts and any
This Court finds the instant Petition meritorious. other pertinent document which is executed with the
intervention of the Bureau of Posts. This Court does not put
much credence to the self serving documentations made by
The core issue in this case is whether or not respondent’s right the BIR personnel especially if they are unsupported by
to assess petitioner’s alleged deficiency income tax is barred substantial evidence establishing the fact of mailing. Thus:
by prescription, the resolution of which depends on reviewing
the findings of fact of the Court of Appeals and the CTA.
"While we have held that an assessment is made when sent
within the prescribed period, even if received by the taxpayer
While the general rule is that factual findings of the Court of after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and
Appeals are binding on this Court, there are, however, L-12259, May 27, 1959), this ruling makes it the more
recognized exceptions 11 thereto, such as when the findings imperative that the release, mailing or sending of the notice be
are contrary to those of the trial court or, in this case, the CTA. clearly and satisfactorily proved. Mere notations made without
12
the taxpayer’s intervention, notice or control, without adequate
supporting evidence cannot suffice; otherwise, the taxpayer
In its Decision, the CTA resolved the issues raised by the would be at the mercy of the revenue offices, without adequate
parties thus: protection or defense." (Nava vs. CIR, 13 SCRA 104, January
30, 1965).
Jurisprudence is replete with cases holding that if the taxpayer
denies ever having received an assessment from the BIR, it is xxxx
incumbent upon the latter to prove by competent evidence that
such notice was indeed received by the addressee. The onus The failure of the respondent to prove receipt of the
probandi was shifted to respondent to prove by contrary assessment by the Petitioner leads to the conclusion that no
evidence that the Petitioner received the assessment in the assessment was issued. Consequently, the government’s right
due course of mail. The Supreme Court has consistently held to issue an assessment for the said period has already
that while a mailed letter is deemed received by the addressee prescribed. (Industrial Textile Manufacturing Co. of the Phils.,
in the course of mail, this is merely a disputable presumption Inc. vs. CIR CTA Case 4885, August 22, 1996). 13
subject to controversion and a direct denial thereof shifts the
burden to the party favored by the presumption to prove that
the mailed letter was indeed received by the addressee Jurisprudence has consistently shown that this Court accords
(Republic vs. Court of Appeals, 149 SCRA 351). Thus as held the findings of fact by the CTA with the highest respect. In Sea-
by the Supreme Court in Gonzalo P. Nava vs. Commissioner of Land Service Inc. v. Court of Appeals 14 this Court recognizes
Internal Revenue, 13 SCRA 104, January 30, 1965: that the Court of Tax Appeals, which by the very nature of its
function is dedicated exclusively to the consideration of tax
problems, has necessarily developed an expertise on the
"The facts to be proved to raise this presumption are (a) that subject, and its conclusions will not be overturned unless there
the letter was properly addressed with postage prepaid, and (b) has been an abuse or improvident exercise of authority. Such
that it was mailed. Once these facts are proved, the findings can only be disturbed on appeal if they are not
presumption is that the letter was received by the addressee as supported by substantial evidence or there is a showing of
soon as it could have been transmitted to him in the ordinary gross error or abuse on the part of the Tax Court. 15 In the
course of the mail. But if one of the said facts fails to appear, absence of any clear and convincing proof to the contrary, this
the presumption does not lie. (VI, Moran, Comments on the Court must presume that the CTA rendered a decision which is
Rules of Court, 1963 ed, 56-57 citing Enriquez vs. Sunlife valid in every respect.
Assurance of Canada, 41 Phil 269)."
Under Section 203 16 of the National Internal Revenue Code
In the instant case, Respondent utterly failed to discharge this (NIRC), respondent had three (3) years from the last day for
duty. No substantial evidence was ever presented to prove that the filing of the return to send an assessment notice to
the assessment notice No. FAN-1-87-91-000649 or other petitioner. In the case of Collector of Internal Revenue v.
supposed notices subsequent thereto were in fact issued or Bautista, 17 this Court held that an assessment is made within
sent to the taxpayer. As a matter of fact, it only submitted the the prescriptive period if notice to this effect is released, mailed
BIR record book which allegedly contains the list of taxpayer’s or sent by the CIR to the taxpayer within said period. Receipt
names, the reference number, the year, the nature of tax, the thereof by the taxpayer within the prescriptive period is not
city/municipality and the amount (see Exh. 5-a for the necessary. At this point, it should be clarified that the rule does
Respondent). Purportedly, Respondent intended to show to not dispense with the requirement that the taxpayer should
this Court that all assessments made are entered into a record actually receive, even beyond the prescriptive period, the
book in chronological order outlining the details of the assessment notice which was timely released, mailed and
assessment and the taxpayer liable thereon. However, as can sent.
be gleaned from the face of the exhibit, all entries thereon
appears to be immaterial and impertinent in proving that the
assessment notice was mailed and duly received by Petitioner. In the present case, records show that petitioner filed its
Nothing indicates therein all essential facts that could sustain Annual Income Tax Return for taxable year 1987 on 14 April
the burden of proof being shifted to the Respondent. What is 1988. 18 The last day for filing by petitioner of its return was on
essential to prove the fact of mailing is the registry receipt 15 April 1988, 19 thus, giving respondent until 15 April 1991
issued by the Bureau of Posts or the Registry return card which within which to send an assessment notice. While respondent
avers that it sent the assessment notice dated 1 February 1991
100
on 6 February 1991, within the three (3)-year period prescribed case. Thus, the evidence offered by respondent does not
by law, petitioner denies having received an assessment notice qualify as an exception to the rule against hearsay evidence.
from respondent. Petitioner alleges that it came to know of the
deficiency tax assessment only on 17 March 1992 when it was Furthermore, independent evidence, such as the registry
served with the Warrant of Distraint and Levy. 20 receipt of the assessment notice, or a certification from the
Bureau of Posts, could have easily been obtained. Yet
In Protector’s Services, Inc. v. Court of Appeals, 21 this Court respondent failed to present such evidence.
ruled that when a mail matter is sent by registered mail, there
exists a presumption, set forth under Section 3(v), Rule 131 of In the case of Nava v. Commissioner of Internal Revenue, 27
the Rules of Court, 22 that it was received in the regular course this Court stressed on the importance of proving the release,
of mail. The facts to be proved in order to raise this mailing or sending of the notice.
presumption are: (a) that the letter was properly addressed
with postage prepaid; and (b) that it was mailed. While a
mailed letter is deemed received by the addressee in the While we have held that an assessment is made when sent
ordinary course of mail, this is still merely a disputable within the prescribed period, even if received by the taxpayer
presumption subject to controversion, and a direct denial of the after its expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and
receipt thereof shifts the burden upon the party favored by the L-12259, May 27, 1959), this ruling makes it the more
presumption to prove that the mailed letter was indeed imperative that the release, mailing, or sending of the notice be
received by the addressee. 23 clearly and satisfactorily proved. Mere notations made without
the taxpayer’s intervention, notice, or control, without adequate
supporting evidence, cannot suffice; otherwise, the taxpayer
In the present case, petitioner denies receiving the assessment would be at the mercy of the revenue offices, without adequate
notice, and the respondent was unable to present substantial protection or defense.
evidence that such notice was, indeed, mailed or sent by the
respondent before the BIR’s right to assess had prescribed and
that said notice was received by the petitioner. The respondent In the present case, the evidence offered by the respondent
presented the BIR record book where the name of the fails to convince this Court that Formal Assessment Notice No.
taxpayer, the kind of tax assessed, the registry receipt number FAN-1-87-91-000649 was released, mailed, or sent before 15
and the date of mailing were noted. The BIR records custodian, April 1991, or before the lapse of the period of limitation upon
Ingrid Versola, also testified that she made the entries therein. assessment and collection prescribed by Section 203 of the
Respondent offered the entry in the BIR record book and the NIRC. Such evidence, therefore, is insufficient to give rise to
testimony of its record custodian as entries in official records in the presumption that the assessment notice was received in
accordance with Section 44, Rule 130 of the Rules of Court, 24 the regular course of mail. Consequently, the right of the
which states that: government to assess and collect the alleged deficiency tax is
barred by prescription.
Section 44. Entries in official records. - Entries in official
records made in the performance of his duty by a public officer IN VIEW OF THE FOREGOING, the instant Petition is
of the Philippines, or by a person in the performance of a duty GRANTED. The assailed Decision of the Court of Appeals in
specially enjoined by law, are prima facie evidence of the facts CA-G.R. SP No. 60209 dated 11 July 2002, is hereby
therein stated. REVERSED and SET ASIDE, and the Decision of the Court of
Tax Appeals in C.T.A. Case No. 5662, dated 17 May 2000,
cancelling the 1988 Deficiency Tax Assessment against
The foregoing rule on evidence, however, must be read in Barcelon, Roxas Securitites, Inc. (now known as UPB
accordance with this Court’s pronouncement in Africa v. Caltex Securities, Inc.) for being barred by prescription, is hereby
(Phil.), Inc., 25 where it has been held that an entrant must REINSTATED. No costs.
have personal knowledge of the facts stated by him or such
facts were acquired by him from reports made by persons
under a legal duty to submit the same. SO ORDERED.
There are three requisites for admissibility under the rule just
mentioned: (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 x x x.
In this case, the entries made by Ingrid Versola were not based
on her personal knowledge as she did not attest to the fact that
she personally prepared and mailed the assessment notice.
Nor was it stated in the transcript of stenographic notes 26 how
and from whom she obtained the pertinent information.
Moreover, she did not attest to the fact that she acquired the
reports from persons under a legal duty to submit the same.
Hence, Rule 130, Section 44 finds no application in the present
101
Alvarez. PICOP seeks the issuance of a privileged writ of
mandamus to compel the DENR Secretary to sign, execute
and deliver an IFMA to PICOP, as well as to –
G.R. No. 164516 On 11 October 2002, the RTC rendered a Decision granting
PICOP’s Petition for Mandamus, thus:
102
The Respondent Secretary Alvarez is likewise ordered to pay IS NOT A CONTRACT, PROPERTY OR PROPERTY RIGHT
petitioner the sum of P10 million a month beginning May 2002 PROTECTED BY THE DUE PROCESS CLAUSE OF THE
until the conversion of TLA No. 43, as amended, to IFMA is CONSTITUTION
formally effected and the harvesting from the said area is
granted.3 II.
On 25 October 2002, the DENR Secretary filed a Motion for THE EVALUATION OF PICOP’S MANAGEMENT OF THE
Reconsideration.4 In a 10 February 2003 Order, the RTC TLA 43 NATURAL FOREST CLEARLY SHOWED
denied the DENR Secretary’s Motion for Reconsideration and SATISFACTORY PERFORMANCE FOR KEEPING THE
granted PICOP’s Motion for the Issuance of Writ of Mandamus NATURAL FOREST GENERALLY INTACT AFTER 50 YEARS
and/or Writ of Mandatory Injunction.5 The fallo of the 11 OF FOREST OPERATIONS. THIS COMPLETES THE
October 2002 Decision was practically copied in the 10 REQUIREMENT FOR AUTOMATIC CONVERSION UNDER
February 2003 Order, although there was no mention of the SECTION 9 OF DAO 99-53.
damages imposed against then DENR Secretary Alvarez. 6 The
DENR Secretary filed a Notice of Appeal7 from the 11 October
2002 Decision and the 10 February 2003 Order. III.
On 19 February 2004, the Seventh Division of the Court of WITH DUE RESPECT, THE HONORABLE COURT, IN
Appeals affirmed8 the Decision of the RTC, to wit: REVERSING THE FINDINGS OF FACTS OF THE TRIAL
COURT AND THE COURT OF APPEALS, MISAPPRECIATED
THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY,
WHEREFORE, the appealed Decision is hereby AFFIRMED WHEN IT RULED THAT:
with modification that the order directing then DENR Secretary
Alvarez "to pay petitioner-appellee the sum of P10 million a
month beginning May, 2002 until the conversion to IFMA of i.
TLA No. 43, as amended, is formally effected and the
harvesting from the said area is granted" is hereby deleted. 9 PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST
PROTECTION PLAN AND A SEVEN-YEAR
Challenging the deletion of the damages awarded to it, PICOP REFORESTATION PLAN FOR THE YEARS UNDER
filed a Motion for Partial Reconsideration 10 of this Decision, REVIEW.
which was denied by the Court of Appeals in a 20 July 2004
Resolution.11 ii.
The DENR Secretary and PICOP filed with this Court separate PICOP FAILED TO COMPLY WITH THE PAYMENT OF
Petitions for Review of the 19 February 2004 Court of Appeals FOREST CHARGES.
Decision. These Petitions were docketed as G.R. No. 162243
and No. 164516, respectively. These cases were consolidated iii.
with G.R. No. 171875, which relates to the lifting of a Writ of
Preliminary Injunction enjoining the execution pending appeal
of the foregoing Decision. PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR
A CERTIFICATION FROM THE NCIP THAT THE AREA OF
TLA 43 DOES NOT OVERLAP WITH ANY ANCESTRAL
On 29 November 2006, this Court rendered the assailed DOMAIN.
Decision on the Consolidated Petitions:
iv.
WHEREFORE, the Petition in G.R. No. 162243 is GRANTED.
The Decision of the Court of Appeals insofar as it affirmed the
RTC Decision granting the Petition for Mandamus filed by PICOP FAILED TO HAVE PRIOR CONSULTATION WITH
Paper Industries Corp. of the Philippines (PICOP) is hereby AND APPROVAL FROM THE SANGUNIAN CONCERNED,
REVERSED and SET ASIDE. The Petition in G.R. No. 164516 AS REQUIRED BY SECTION 27 OF THE REPUBLIC ACT
seeking the reversal of the same Decision insofar as it nullified NO. 7160, OTHERWISE KNOWN AS THE LOCAL
the award of damages in favor of PICOP is DENIED for lack of GOVERNMENT CODE OF 1991.
merit. The Petition in G.R. No. 171875, assailing the lifting of
the Preliminary Mandatory Injunction in favor of the Secretary v.
of Environment and Natural Resources is DISMISSED on the
ground of mootness.12
PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY
UNDER PRESIDENTIAL DECREE NO. 1586.
On 18 January 2006, PICOP filed the instant Motion for
Reconsideration, based on the following grounds:
IV
I.
THE MOTIVATION OF ALVAREZ IN RECALLING THE
CLEARANCE FOR AUTOMATIC CONVERSION HE ISSUED
THE HONORABLE COURT ERRED IN HOLDING THAT THE ON 25 OCTOBER 2001 WAS NOT DUE TO ANY
CONTRACT WITH PRESIDENTIAL WARRANTY SIGNED BY SHORTCOMING FROM PICOP BUT DUE TO HIS
THE PRESIDENT OF THE REPUBLIC ON 29 JUNE 1969 DETERMINATION TO EXCLUDE 28,125 HECTARES FROM
ISSUED TO PICOP IS A MERE PERMIT OR LICENSE AND THE CONVERSION AND OTHER THINGS.
103
On 15 December 2008, on Motion by PICOP, the Third Respondent Secretary has impaired the obligation of contract
Division of this Court resolved to refer the consolidated cases under a valid and binding warranty and agreement of 29 July
at bar to the Court en banc. On 16 December 2008, this Court 1969 between the government and PICOP’s predecessor-in-
sitting en banc resolved to accept the said cases and set them interest, by refusing to respect: a) the tenure of PICOP, and its
for oral arguments. Oral arguments were conducted on 10 renewal for another twenty five (25) years, over the TLA No.43
February 2009. area covered by said agreement; b) the exclusive right to cut,
collect and remove sawtimber and pulpwood timber; and c) the
PICOP’s Cause of Action: Matters PICOP Should Have Proven peaceful and adequate enjoyment of the said area.
to Be Entitled to a Writ of Mandamus
IV
In seeking a writ of mandamus to compel the issuance of an
IFMA in its favor, PICOP relied on a 29 July 1969 Document, As a result of respondent Secretary’s unlawful refusal and/or
the so-called Presidential Warranty approved by then President neglect to sign and deliver the IFMA contract, and violation of
Ferdinand E. Marcos in favor of PICOP’s predecessor-in- the constitutional rights of PICOP against non-impairment of
interest, Bislig Bay Lumber Company, Inc. (BBLCI). PICOP’s the obligation of contract (Sec. 10, Art. III, 1997 [sic]
cause of action is summarized in paragraphs 1.6 and 4.19 of Constitution), PICOP suffered grave and irreparable
its Petition for Mandamus: damages.15
1.6 Respondent Secretary impaired the obligation of contract Petitions for Mandamus are governed by Rule 65 of the Rules
under the said Warranty and Agreement of 29 July 1969 by of Court, Section 3 of which provides:
refusing to respect the tenure; and its renewal for another
twenty five (25) years, of PICOP over the area covered by the SEC. 3. Petition for mandamus.—When any tribunal,
said Agreement which consists of permanent forest lands with corporation, board, officer or person unlawfully neglects the
an aggregate area of 121,587 hectares and alienable and performance of an act which the law specifically enjoins as a
disposable lands with an aggregate area of approximately duty resulting from an office, trust, or station, or unlawfully
21,580 hectares, and petitioner’s exclusive right to cut, collect excludes another from the use and enjoyment of a right or
and remove sawtimber and pulpwood therein and the peaceful office to which such other is entitled, and there is no other
and adequate enjoyment of the said area as described and plain, speedy and adequate remedy in the ordinary course of
specified in petitioner’s Timber License Agreement (TLA) No. law, the person aggrieved thereby may file a verified petition in
43 guaranteed by the Government, under the Warranty and the proper court, alleging the facts with certainty and praying
Agreement of 29 July 1969.13 that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
4.19 Respondent is in violation of the Constitution and has to do the act required to be done to protect the rights of the
impaired the obligation of contract by his refusal to respect: a) petitioner, and to pay the damages sustained by the petitioner
the tenurial rights of PICOP over the forest area covered by by reason of the wrongful acts of the respondent. (Emphasis
TLA No. 43, as amended and its renewal for another twenty supplied.)
five (25) years; b) the exclusive right of PICOP to cut, collect
and remove sawtimber and pulpwood therein; and c) PICOP’s PICOP is thus asking this Court to conclude that the DENR
peaceful and adequate enjoyment of the said area which the Secretary is specifically enjoined by law to issue an IFMA in its
government guaranteed under the Warranty and Agreement of favor. An IFMA, as defined by DENR Administrative Order
29 July 1969.14 (DAO) No. 99-53,16 is -
The grounds submitted by PICOP in its Petition for Mandamus [A] production-sharing contract entered into by and between
are as follows: the DENR and a qualified applicant wherein the DENR grants
to the latter the exclusive right to develop, manage, protect and
I utilize a specified area of forestland and forest resource therein
for a period of 25 years and may be renewed for another 25-
Respondent secretary has unlawfully refused and/or neglected year period, consistent with the principle of sustainable
to sign and execute the IFMA contract of PICOP even as the development and in accordance with an approved CDMP, and
latter has complied with all the legal requirements for the under which both parties share in its produce.17
automatic conversion of TLA No. 43, as amended, into an
IFMA. PICOP stresses the word "automatic" in Section 9 of this DAO
No. 99-53:
II
Sec. 9. Qualifications of Applicants. – The applicants for IFMA
Respondent Secretary acted with grave abuse of discretion shall be:
and/or in excess of jurisdiction in refusing to sign and execute
PICOP’s IFMA contract, notwithstanding that PICOP had (a) A Filipino citizen of legal age; or,
complied with all the requirements for Automatic Conversion
under DAO 99-53, as in fact Automatic Conversion was (b) Partnership, cooperative or corporation whether
already cleared in October, 2001, and was a completed public or private, duly registered under Philippine
process. laws.
III
104
However, in the case of application for conversion of TLA into A contract, being the law between the parties, can indeed, with
IFMA, an automatic conversion after proper evaluation shall be respect to the State when it is a party to such contract, qualify
allowed, provided the TLA holder shall have signified such as a law specifically enjoining the performance of an act.
intention prior to the expiry of the TLA, PROVIDED further, that Hence, it is possible that a writ of mandamus may be issued to
the TLA holder has showed satisfactory performance and have PICOP, but only if it proves both of the following:
complied in the terms of condition of the TLA and pertinent
rules and regulations. (Emphasis supplied.)18 1) That the 1969 Document is a contract recognized
under the non-impairment clause; and
This administrative regulation provision allowing automatic
conversion after proper evaluation can hardly qualify as a law, 2) That the 1969 Document specifically enjoins the
much less a law specifically enjoining the execution of a government to issue the IFMA.
contract. To enjoin is "to order or direct with urgency; to instruct
with authority; to command."19 "‘Enjoin’ is a mandatory word, in
legal parlance, always; in common parlance, usually."20 The If PICOP fails to prove any of these two matters, the grant of a
word "allow," on the other hand, is not equivalent to the word privileged writ of mandamus is not warranted. This was why we
"must," and is in no sense a command.21 pronounced in the assailed Decision that the overriding
controversy involved in the Petition was one of law. 24 If PICOP
fails to prove any of these two matters, more significantly its
As an extraordinary writ, the remedy of mandamus lies only to assertion that the 1969 Document is a contract, PICOP fails to
compel an officer to perform a ministerial duty, not a prove its cause of action.25 Not even the satisfactory
discretionary one; mandamus will not issue to control the compliance with all legal and administrative requirements for
exercise of discretion of a public officer where the law imposes an IFMA would save PICOP’s Petition for Mandamus.
upon him the duty to exercise his judgment in reference to any
manner in which he is required to act, because it is his
judgment that is to be exercised and not that of the court.22 The reverse, however, is not true. The 1969 Document
expressly states that the warranty as to the tenure of PICOP is
"subject to compliance with constitutional and statutory
The execution of agreements, in itself, involves the exercise of requirements as well as with existing policy on timber
discretion. Agreements are products of negotiations and concessions." Thus, if PICOP proves the two above-mentioned
mutual concessions, necessitating evaluation of their matters, it still has to prove compliance with statutory and
provisions on the part of both parties. In the case of the IFMA, administrative requirements for the conversion of its TLA into
the evaluation on the part of the government is specifically an IFMA.
mandated in the afore-quoted Section 3 of DAO No. 99-53.
This evaluation necessarily involves the exercise of discretion
and judgment on the part of the DENR Secretary, who is Exhaustion of Administrative Remedies
tasked not only to negotiate the sharing of the profit arising
from the IFMA, but also to evaluate the compliance with the PICOP uses the same argument –– that the government is
requirements on the part of the applicant. bound by contract to issue the IFMA –– in its refusal to exhaust
all administrative remedies by not appealing the alleged illegal
Furthermore, as shall be discussed later, the period of an IFMA non-issuance of the IFMA to the Office of the President. PICOP
that was merely automatically converted from a TLA in claimed in its Petition for Mandamus with the trial court that:
accordance with Section 9, paragraph 2 of DAO No. 99-53
would only be for the remaining period of the TLA. Since the 1.10 This petition falls as an exception to the exhaustion of
TLA of PICOP expired on 26 April 2002, the IFMA that could administrative remedies. The acts of respondent DENR
have been granted to PICOP via the automatic conversion Secretary complained of in this petition are patently illegal; in
provision in DAO No. 99-53 would have expired on the same derogation of the constitutional rights of petitioner against non-
date, 26 April 2002, and the PICOP’s Petition for Mandamus impairment of the obligation of contracts; without jurisdiction, or
would have become moot. in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess or lack of jurisdiction;
This is where the 1969 Document, the purported Presidential and moreover, the failure or refusal of a high government
Warranty, comes into play. When PICOP’s application was official such as a Department head from whom relief is brought
brought to a standstill upon the evaluation that PICOP had yet to act on the matter was considered equivalent to exhaustion of
to comply with the requirements for such conversion, PICOP administrative remedies (Sanoy v. Tantuico, 50 SCRA 455
refused to attend further meetings with the DENR and instead [1973]), and there are compelling and urgent reasons for
filed a Petition for Mandamus, insisting that the DENR judicial intervention (Bagatsing v. Ramirez, 74 SCRA 306
Secretary had impaired the obligation of contract by his refusal [1976]).
to respect: a) the tenurial rights of PICOP over the forest area
covered by TLA No. 43, as amended, and its renewal for Thus, if there has been no impairment of the obligation of
another twenty-five (25) years; b) the exclusive right of PICOP contracts in the DENR Secretary’s non-issuance of the IFMA,
to cut, collect and remove sawtimber and pulpwood therein; the proper remedy of PICOP in claiming that it has complied
and c) PICOP’s peaceful and adequate enjoyment of the said with all statutory and administrative requirements for the
area which the government guaranteed under the Warranty issuance of the IFMA should have been with the Office of the
and Agreement of 29 July 1969. 23 President. This makes the issue of the enforceability of the
1969 Document as a contract even more significant.
PICOP is, thus, insisting that the government is obligated by
contract to issue an IFMA in its favor because of the 1969 The Nature and Effects of the Purported 29 July 1969
Document. Presidential Warranty
105
Base Metals Case public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
PICOP challenges our ruling that the 1969 Document is not a qualified entities, and do not vest in the latter a permanent or
contract. Before we review this finding, however, it must be irrevocable right to the particular concession area and the
pointed out that one week after the assailed Decision, another forest products therein. They may be validly amended,
division of this Court promulgated a Decision concerning the modified, replaced or rescinded by the Chief Executive when
very same 1969 Document. Thus, in PICOP Resources, Inc. v. national interests so require. Thus, they are not deemed
Base Metals Mineral Resources Corporation,26 five other contracts within the purview of the due process of law clause
Justices who were still unaware of this Division’s Decision,27 [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
came up with the same conclusion as regards the same issue amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
of whether former President Marcos’s Presidential Warranty is October 27, 1983, 125 SCRA 302]."
a contract:
Since timber licenses are not contracts, the non-impairment
Finally, we do not subscribe to PICOP’s argument that the clause, which reads:
Presidential Warranty dated September 25, 1968 is a contract
protected by the non-impairment clause of the 1987 "SEC. 10. No law impairing the obligation of contracts shall be
Constitution. passed."
Essentially, the PICOP raised the issue of whether the ATTY. AGABIN:
Presidential Warranty is a contract or not.
It already settled the issue, the basic issue.
ATTY. AGABIN:
JUSTICE TINGA:
Yes, Your Honor.
Yes, because the Court in saying that merely reiterated a
JUSTICE TINGA: number of rulings to the effect that the Presidential Warranty, a
Timber License for that matter is not a contract protected by
And therefore any ruling on the part of the Court on that issue the non-impairment laws.
could not be an obiter dictum.
ATTY. AGABIN:
ATTY. AGABIN:
Well, it is our submission, your Honor, that it is obiter because,
Your Honor, actually we believe that the basic issue in that that issue even a phrase by PICOP was not really fully argued
case was whether or not Base Metals could conduct mining by the parties for the Honorable Court and it seems from my
activities underneath the forest reserve allotted to PICOP and reading at least it was just an aside given by the Honorable
the Honorable Court ruled that the Mining Act of 1995 as well Court to decide on that issue raised by PICOP but it was not
as the Department Order of DENR does not disallow mining necessary to the decision of the court.
activity under a forest reserve.
JUSTICE TINGA:
JUSTICE TINGA:
It was not necessary[?]
But it was PICOP itself which raised the claim that a
Presidential Warranty is a contract. And therefore be, should ATTY. AGABIN:
be protected on the under the non-impairment clause of the
Constitution. To the decision of the Court.
So, how can you say now that the Court merely uttered, It was not necessary.
declared, laid down an obiter dictum in saying that the
Presidential Warranty is not a contract, and it is not being a
contract, it is not prohibited by the non-impairment clause. JUSTICE TINGA:
This Honorable Court could have just ruled, held that the ATTY. AGABIN:
mining law allows mining activities under a forest reserve
without deciding on that issue that was raised by PICOP, your Yes.
Honor, and therefore we believe….
JUSTICE TINGA:
JUSTICE TINGA:
And PICOP devoted quite a number of pages in [its]
It could have been better if PICOP has not raised that issue memorandum to that issue and so did the Court [in its
and had not claimed that the Presidential Warranty is not a Decision].
contract.
ATTY. AGABIN:
ATTY. AGABIN:
Anyway, your Honor, we beg the Court to revisit, not to…29
Well, that is correct, your Honor except that the Court could
have just avoided that question. Because… Interpretation of the 1969 Document That Would Be in
Harmony with the Constitution
JUSTICE TINGA:
107
To remove any doubts as to the contents of the 1969 The peaceful and adequate enjoyment by you of your area as
Document, the purported Presidential Warranty, below is a described and specified in your aforesaid amended Timber
complete text thereof: License Agreement No. 43 is hereby warranted provided that
pertinent laws, regulations and the terms and conditions of
Republic of the Philippines your license agreement are observed.
Department of Agriculture and Natural Resources
OFFICE OF THE SECRETARY Very truly yours,
Diliman, Quezon City
(Sgd.) FERNANDO LOPEZ
D-53, Licenses (T.L.A. No. 43) Secretary of Agriculture
Bislig Bay Lumber Co., Inc. and Natural Resources
(Bislig, Surigao)
Encl.:
July 29, 1969
RECOMMENDED BY:
Bislig Bay Lumber Co., Inc.
[unreadable word] Bldg. (Sgd.) JOSE VIADO
Makati, Rizal Acting Director of Forestry
S i r s: APPROVED:
This has reference to the request of the Board of Investments (Sgd.) FERDINAND E. MARCOS
through its Chairman in a letter dated July 16, 1969 for a President of the Philippines
warranty on the boundaries of your concession area under
Timber License Agreement No. 43, as amended.
ACCEPTED:
We are made to understand that your company is committed to
support the first large scale integrated wood processing BISLIG BAY LBR. CO., INC.
complex hereinafter called: "The Project") and that such
support will be provided not only in the form of the supply of By:
pulpwood and other wood materials from your concession but
also by making available funds generated out of your own (Sgd.) JOSE E. SORIANO
operations, to supplement PICOP’s operational sources of President
funds and other financial arrangements made by him. In order
that your company may provide such support effectively, it is
understood that you will call upon your stockholders to take PICOP interprets this document in the following manner:
such steps as may be necessary to effect a unification of
managerial, technical, economic and manpower resources 6.1 It is clear that the thrust of the government warranty is to
between your company and PICOP. establish a particular area defined by boundary lines of TLA
No. 43 for the PICOP Project. In consideration for PICOP’s
It is in the public interest to promote industries that will commitment to pursue and establish the project requiring huge
enhance the proper conservation of our forest resources as investment/funding from stockholders and lending institutions,
well as insure the maximum utilization thereof to the benefit of the government provided a warranty that ensures the
the national economy. The administration feels that the PICOP continued and exclusive right of PICOP to source its raw
project is one such industry which should enjoy priority over the materials needs from the forest and renewable trees within the
usual logging operations hitherto practiced by ordinary timber areas established.
licensees: For this reason, we are pleased to consider
favorably the request. 6.2 As a long-term support, the warranty covers the initial
twenty five (25) year period and is renewable for periods of
We confirm that your Timber License Agreement No. 43, as twenty five (25) years provided the project continues to exist
amended (copy of which is attached as Annex "A" hereof which and operate. Very notably, the wording of the Presidential
shall form part and parcel of this warranty) definitely Warranty connotes that for as long as the holder complies with
establishes the boundary lines of your concession area which all the legal requirements, the term of the warranty is not
consists of permanent forest lands with an aggregate area of limited to fifty (50) years but other twenty five (25) years.
121,587 hectares and alienable or disposable lands with an
aggregate area of approximately 21,580 hectares. 6.3 Note must be made that the government warranted that
PICOP’s tenure over the area and exclusive right to cut, collect
We further confirm that your tenure over the area and exclusive and remove saw timber and pulpwood shall be for the period
right to cut, collect and remove sawtimber and pulpwood shall ending on 26 April 1977 and said period to be renewable for
be for the period ending on April 26, 1977; said period to be other 25 years subject to "compliance with constitutional and
renewable for other 25 years subject to compliance with statutory requirements as well as existing policy on timber
constitutional and statutory requirements as well as with requirements". It is clear that the renewal for other 25 years,
existing policy on timber concessions. not necessarily for another 25 years is guaranteed. This
explains why on 07 October 1977, TLA No. 43, as amended,
108
was automatically renewed for another period of twenty five Any interpretation extending the application of the 1969
(25) years to expire on 26 April 2002.30 Document beyond 26 April 2002 and any concession that may
be granted to PICOP beyond the said date would violate the
PICOP’s interpretation of the 1969 Document cannot be Constitution, and no amount of legal hermeneutics can change
sustained. PICOP’s claim that the term of the warranty is not that. Attempts of PICOP to explain its way out of this
limited to fifty years, but that it extends to other fifty years, Constitutional provision only led to absurdities, as exemplified
perpetually, violates Section 2, Article XII of the Constitution in the following excerpt from the oral arguments:
which provides:
JUSTICE CARPIO:
Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential The maximum trend of agreement to develop and utilize
energy, fisheries, forests or timber, wildlife, flora and fauna, natural resources like forest products is 25 years plus another
and other natural resources are owned by the State. With the 25 years or a total of 50 years correct?
exception of agricultural lands, all other natural resources shall
not be alienated. The exploration, development, and utilization ATTY. AGABIN
of natural resources shall be under the full control and
supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, Yes, Your Honor.
or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose JUSTICE CARPIO:
capital is owned by such citizens. Such agreements may be for
a period not exceeding twenty-five years, renewable for not That is true for the 1987, 1973, 1935 Constitution, correct?
more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights
for irrigation, water supply fisheries, or industrial uses other ATTY. AGABIN:
than the development of water power, beneficial use may be
the measure and limit of the grant. Yes, Your Honor.
And it was renewed for another 25 years until 2002, the 50th
IFMAs are production-sharing agreements concerning the
year?
development and utilization of natural resources. As such,
these agreements "may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and ATTY. AGABIN:
under such terms and conditions as may be provided by law."
Any superior "contract" requiring the State to issue TLAs and Yes, Your Honor.
IFMAs whenever they expire clearly circumvents Section 2,
Article XII of the Constitution, which provides for the only
permissible schemes wherein the full control and supervision of JUSTICE CARPIO:
the State are not derogated: co-production, joint venture, or
production-sharing agreements within the time limit of twenty- Now, could PICOP before the end of the 50th year let’s say in
five years, renewable for another twenty-five years. 2001, one year before the expiration, could it have asked for an
extension of another 25 years of its TLA agreement[?]
On its face, the 1969 Document was meant to expire on 26
April 2002, upon the expiration of the expected extension of the ATTY. AGABIN:
original TLA period ending on 26 April 1977:
I believe so, Your Honor.
We further confirm that your tenure over the area and exclusive
right to cut, collect and remove sawtimber and pulpwood shall JUSTICE CARPIO:
be for the period ending on April 26, 1977; said period to be
renewable for other 25 years subject to compliance with
constitutional and statutory requirements as well as with But the Constitution says, maximum of fifty years. How could
existing policy on timber concessions.1avvphi1 you ask for another 25 years of its TLA.
ATTY. AGABIN:
109
Well, your Honor, we believe on a question like this, this pass a law extending the license, whatever kind of license to
Honorable Court should balance the interest. utilize natural resources for more than fifty year[s]. I mean even
the law cannot do that. It cannot prevail over the Constitution.
JUSTICE CARPIO: Is that correct, Counsel?
The Constitution is very clear, you have only a maximum of 50 ATTY. AGABIN:
years, 25 plus another 25. PICOP could never have applied for
an extension, for a third 25-year term whether under the 1935 It is correct, Your Honor, except that in this case, what is
Constitution, the 1973 Constitution and the 1987 Constitution, actually our application is that the law provides for the
correct? conversion of existing TLA into IFMA.
Your Honor, except that we are invoking the warranty, the So, they file the petition for conversion before the end of the
terms of the warranty…. 50th year for IFMA.
Can the warranty prevail over the Constitution? Yes, Your Honor.
Well, it is a vested right, your Honor. But IFMA is the same, it is based on Section 2, Article 12 of the
Constitution, develop and utilize natural resources because as
JUSTICE CARPIO: you said when the new constitution took effect we did away
with the old licensing regime, we have now co-production, a
production sharing, joint venture, direct undertaking but still the
Yes, but whatever it is, can it prevail over the Constitution? same developing and utilizing the natural resources, still comes
from section 2, Art. 12 of the Constitution. It is still a license but
ATTY. AGABIN: different format now.
The Constitution itself provides that vested rights should be …. ATTY. AGABIN:
JUSTICE CARPIO: It is correct, Your Honor, except that the regimes of joint
venture, co-production and production sharing are what is
If it is not in violation of specific provision of the Constitution. referred to in the constitution, Your Honor, and still covered…
The Constitution says, 25 years plus another 25 years, that’s
the end of it. You mean to say that a President of the JUSTICE CARPIO:
Philippines can give somebody 1,000 years license?
Yes, but it is covered by same 25 year[s], you mean to say
ATTY. AGABIN: people now can circumvent the 50 year maximum term by
calling their TLA as IFMA and after fifty years calling it ISMA,
Well, that is not our position, Your Honor. Because our position after another 50 years call it MAMA.
is that ….
ATTY. AGABIN:
JUSTICE CARPIO:
Yes, Your Honor. Because…
My question is, what is the maximum term, you said 50 years.
So, my next question is, can PICOP apply for an extension of JUSTICE CARPIO:
another 25 years after 2002, the 50th year?
It can be done.
ATTY. AGABIN:
ATTY. AGABIN:
Yes, based on the contract of warranty, Your Honor, because
the contract of warranty…. That is provided for by the department itself.34
JUSTICE CARPIO: PICOP is, in effect, arguing that the DENR issued DAO No. 99-
53 in order to provide a way to circumvent the provisions of the
But in the PICOP license it is very clear, it says here, provision Constitution limiting agreements for the utilization of natural
28, it says the license agreement is for a total of 50 years. I resources to a maximum period of fifty years. Official duties
mean it is very simple, the President or even Congress cannot
110
are, however, disputably considered to be regularly ASSOCIATE JUSTICE DE CASTRO:
performed,35 and good faith is always presumed.
The provision of this Administrative Order regarding automatic
DAO No. 99-53 was issued to change the means by which the conversion may be reasonable, if, I want to know if you agree
government enters into an agreement with private entities for with me, if we limit this automatic conversion to the remaining
the utilization of forest products. DAO No. 99-53 is a late period of the TLA, because in that case there will be a valid
response to the change in the constitutional provisions on ground to make a distinction between those with existing TLA
natural resources from the 1973 Constitution, which allowed and those who are applying for the first time for IFMA?
the granting of licenses to private entities,36 to the present
Constitution, which provides for co-production, joint venture, or DEAN AGABIN:
production-sharing agreements as the permissible schemes
wherein private entities may participate in the utilization of
forest products. Since the granting of timber licenses ceased to Well, Your Honor, we beg to disagree, because as I said TLA’s
be a permissible scheme for the participation of private entities are completely different from IFMA. The TLA has no production
under the present Constitution, their operations should have sharing or co-production agreement or condition. All that the
ceased upon the issuance of DAO No. 99-53, the rule licensee has to do is, to pay forest charges, taxes and other
regulating the schemes under the present Constitution. This impositions from the local and national government. On the
would be iniquitous to those with existing TLAs that would not other hand, the IFMAs contained terms and conditions which
have expired yet as of the issuance of DAO No. 99-53, are completely different, and that they either impose co-
especially those with new TLAs that were originally set to production, production sharing or joint venture terms. So it’s a
expire after 10 or even 20 or more years. The DENR thus completely different regime, Your Honor.
inserted a provision in DAO No. 99-53 allowing these TLA
holders to finish the period of their TLAs, but this time as ASSOCIATE JUSTICE DE CASTRO:
IFMAs, without the rigors of going through a new application,
which they have probably just gone through a few years ago. Precisely, that is the reason why there should be an evaluation
of what you mentioned earlier of the development plan.
Such an interpretation would not only make DAO No. 99-53
consistent with the provisions of the Constitution, but would DEAN AGABIN:
also prevent possible discrimination against new IFMA
applicants:
Yes, Your Honor.
ASSOCIATE JUSTICE DE CASTRO:
ASSOCIATE JUSTICE DE CASTRO:
I ask this question because of your interpretation that the
period of the IFMA, if your TLA is converted into IFMA, would So it will be reasonable to convert a TLA into an IFMA without
cover a new a fresh period of twenty-five years renewable by considering the development plan submitted by other
another period of twenty-five years. applicants or the development plan itself of one seeking
conversion into IFMA if it will only be limited to the period, the
original period of the TLA. But once you go beyond the period
DEAN AGABIN: of the TLA, then you will be, the DENR is I think should
evaluate the different proposals of the applicants if we are
Yes, Your Honor. thinking of a fresh period of twenty-five years, and which is
renewable under the Constitution by another twenty-five years.
ASSOCIATE JUSTICE DE CASTRO: So the development plan will be important in this case, the
submission of the development plan of the different applicants
must be considered. So I don’t understand why you mentioned
Don’t you think that will, in effect, be invidious discrimination earlier that the development plan will later on be a subject
with respect to other applicants if you are granted a fresh matter of negotiation between the IFMA grantee and the
period of twenty-five years extendible to another twenty-five government. So it seems that it will be too late in the day to
years? discuss that if you have already converted the TLA into IFMA
or if the government has already granted the IFMA, and then it
DEAN AGABIN: will later on study the development plan, whether it is viable or
not, or it is sustainable or not, and whether the development
I don’t think it would be, Your Honor, considering that the IFMA plan of the different applicants are, are, which of the
is different regime from the TLA. And not only that, there are development plan of the different applicants is better or more
considerations of public health and ecology which should come advantageous to the government.37
into play in this case, and which we had explained in our
opening statement and, therefore the provision of the PICOP insists that the alleged Presidential Warranty, having
Constitution on the twenty-five limits for renewal of co- been signed on 29 July 1969, could not have possibly
production, joint venture and production sharing agreements, considered the limitations yet to be imposed by future
should be balanced with other values stated in the Constitution, issuances, such as the 1987 Constitution. However, Section 3,
like the value of balanced ecology, which should be in harmony Article XVIII of said Constitution, provides:
with the rhythm of nature, or the policy of forest preservation in
Article XII, Section 14 of the Constitution. These are all Section 3. All existing laws, decrees, executive orders,
important policy considerations which should be balanced proclamations, letters of instructions, and other executive
against the term limits in Article II of the Constitution.
111
issuances not inconsistent with this Constitution shall remain including the wages of such laborers shall be paid by
operative until amended, repealed, or revoked. the party of the second part.45
In the recent case Sabio v. Gordon,38 we ruled that "(t)he clear Thus, BBLCI needed an assurance that the boundaries of its
import of this provision is that all existing laws, executive concession area, as established in TLA No. 43, as amended,
orders, proclamations, letters of instructions and other would not be altered despite this provision. Hence, BBLCI
executive issuances inconsistent or repugnant to the endeavored to obtain the 1969 Document, which provides:
Constitution are repealed."
We confirm that your Timber License Agreement No. 43, as
When a provision is susceptible of two interpretations, "the one amended (copy of which is attached as Annex "A" hereof which
that will render them operative and effective and harmonious shall form part and parcel of this warranty) definitely
with other provisions of law"39 should be adopted. As the establishes the boundary lines of your concession area which
interpretations in the assailed Decision and in Mr. Justice consists of permanent forest lands with an aggregate area of
Tinga’s ponencia are the ones that would not make the subject 121,587 hectares and alienable or disposable lands with an
Presidential Warranty unconstitutional, these are what we shall aggregate area of approximately 21,580 hectares.
adopt.
We further confirm that your tenure over the area and exclusive
Purpose of the 1969 Document: Assurance That the right to cut, collect and remove sawtimber and pulpwood shall
Boundaries of Its Concession Area Would Not Be Altered be for the period ending on April 26, 1977; said period to be
Despite the Provision in the TLA that the DENR Secretary Can renewable for other 25 years subject to compliance with
Amend Said Boundaries constitutional and statutory requirements as well as with
existing policy on timber concessions.
In the assailed Decision, we ruled that the 1969 Document
cannot be considered a contract that would bind the The peaceful and adequate enjoyment by you of your area as
government regardless of changes in policy and the demands described and specified in your aforesaid amended Timber
of public interest and social welfare. PICOP claims this License Agreement No. 43 is hereby warranted provided that
conclusion "did not take into consideration that PICOP already pertinent laws, regulations and the terms and conditions of
had a valid and current TLA before the contract with warranty your license agreement are observed.46
was signed in 1969."40 PICOP goes on: "The TLA is a license
that equips any TLA holder in the country for harvesting of In Koa v. Court of Appeals,47 we ruled that a warranty is a
timber. A TLA is signed by the Secretary of the DANR now collateral undertaking and is merely part of a contract. As a
DENR. The Court ignored the significance of the need for collateral undertaking, it follows the principal wherever it goes.
another contract with the Secretary of the DANR but this time When this was pointed out by the Solicitor General, PICOP
with the approval of the President of the Republic." 41 PICOP changed its designation of the 1969 Document from
then asks us: "If PICOP/BBLCI was only an ordinary TLA "Presidential Warranty" or "government warranty" in all its
holder, why will it go through the extra step of securing another pleadings prior to our Decision, to "contract with warranty" in its
contract just to harvest timber when the same can be served Motion for Reconsideration. This, however, is belied by the
by the TLA signed only by the Secretary and not requiring the statements in the 29 July 1969 Document, which refers to itself
approval of the President of the Republic(?)" 42 as "this warranty."
The answer to this query is found in TLA No. 43 itself wherein, Re: Allegation That There Were Mutual Contract
immediately after the boundary lines of TLA No. 43 were Considerations
established, the following conditions were given:
Had the 29 July 1969 Document been intended as a contract, it
This license is granted to the said party of the second part could have easily said so. More importantly, it could have
upon the following express conditions: clearly defined the mutual considerations of the parties thereto.
It could have also easily provided for the sanctions for the
I. That authority is granted hereunder to the party of breach of the mutual considerations specified therein. PICOP
the second part43 to cut, collect or remove firewood or had vigorously argued that the 1969 Document was a contract
other minor forest products from the area embraced in because of these mutual considerations, apparently referring to
this license agreement except as hereinafter provided. the following paragraph of the 1969 Document:
II. That the party of the first part44 may amend or alter We are made to understand that your company is committed to
the description of the boundaries of the area covered support the first large scale integrated wood processing
by this license agreement to conform with official complex hereinafter called: "The Project") and that such
surveys and that the decision of the party of the first support will be provided not only in the form of the supply of
part as to the exact location of the said boundaries pulpwood and other wood materials from your concession but
shall be final. also by making available funds generated out of your own
operations, to supplement PICOP’s operational surces (sic) of
III. That if the party of the first part deems it necessary funds and other financial arrangements made by him. In order
to establish on the ground the boundary lines of the that your company may provide such support effectively, it is
area granted under this license agreement, the party understood that you will call upon your stockholders to take
of the second part shall furnish to the party of the first such steps as may be necessary to effect a unification of
part or its representatives as many laborers as it managerial, technical, economic and manpower resources
needs and all the expenses to be incurred on the work between your company and PICOP.1avvphi1
112
This provision hardly evinces a contract consideration (which, institution to establish the first large scale integrated wood
in PICOP’s interpretation, is in exchange for the exclusive and processing complex in the Philippines.
perpetual tenure over 121,587 hectares of forest land and
21,580 hectares of alienable and disposable lands). As 45. The Decision puts up a lame explanation that "all licensees
elucidated by PICOP itself in bringing up the Investment put up investments in pursuing their business"
Incentives Act which we shall discuss later, and as shown by
the tenor of the 1969 Document, the latter document was more
of a conferment of an incentive for BBLCI’s investment rather 46. Now there are about a hundred timber licenses issued by
than a contract creating mutual obligations on the part of the the Government thru the DENR, but these are ordinary timber
government, on one hand, and BBLCI, on the other. There was licenses which involve the mere cutting of timber in the
no stipulation providing for sanctions for breach if BBLCI’s concession area, and nothing else. Records in the DENR
being "committed to support the first large scale integrated shows that no timber licensee has put up an integrated large
wood processing complex" remains a commitment. Neither did wood processing complex in the Philippines except PICOP. 51
the 1969 Document give BBLCI a period within which to pursue
this commitment. PICOP thus argues on the basis of quantity, and wants us to
distinguish between the investment of the tricycle driver and
According to Article 1350 of the Civil Code, "(i)n onerous that of the multi-billion corporation. However, not even billions
contracts the cause is understood to be, for each contracting of pesos in investment can change the fact that natural
party, the prestation or promise of a thing or service by the resources and, therefore, public interest are involved in
other."48 Private investments for one’s businesses, while PICOP’s venture, consequently necessitating the full control
indeed eventually beneficial to the country and deserving to be and supervision by the State as mandated by the Constitution.
given incentives, are still principally and predominantly for the Not even billions of pesos in investment can buy forest lands,
benefit of the investors. Thus, the "mutual" contract which is practically what PICOP is asking for by interpreting the
considerations by both parties to this alleged contract would be 1969 Document as a contract giving it perpetual and exclusive
both for the benefit of one of the parties thereto, BBLCI, which possession over such lands. Among all TLA holders in the
is not obligated by the 1969 Document to surrender a share in Philippines, PICOP has, by far, the largest concession area at
its proceeds any more than it is already required by its TLA and 143,167 hectares, a land area more than the size of two Metro
by the tax laws. Manilas.52 How can it not expect to also have the largest
investment?
PICOP’s argument that its investments can be considered as
contract consideration derogates the rule that "a license or a Investment Incentives Act
permit is not a contract between the sovereignty and the
licensee or permittee, and is not a property in the constitutional PICOP then claims that the contractual nature of the 1969
sense, as to which the constitutional proscription against the Document was brought about by its issuance in accordance
impairment of contracts may extend." All licensees obviously with and pursuant to the Investment Incentives Act. According
put up investments, whether they are as small as a tricycle unit to PICOP:
or as big as those put up by multi-billion-peso corporations. To
construe these investments as contract considerations would The conclusion in the Decision that to construe PICOP’s
be to abandon the foregoing rule, which would mean that the investments as a consideration in a contract would be to
State would be bound to all licensees, and lose its power to stealthily render ineffective the principle that a license is not a
revoke or amend these licenses when public interest so contract between the sovereignty and the licensee is so flawed
dictates. since the contract with the warranty dated 29 July 1969 was
issued by the Government in accordance with and pursuant to
The power to issue licenses springs from the State’s police Republic Act No. 5186, otherwise known as "The Investment
power, known as "the most essential, insistent and least Incentives Act."53
limitable of powers, extending as it does to all the great public
needs."49 Businesses affecting the public interest, such as the PICOP then proceeds to cite Sections 2 and 4(d) and (e) of
operation of public utilities and those involving the exploitation said act:
of natural resources, are mandated by law to acquire licenses.
This is so in order that the State can regulate their operations
and thereby protect the public interest. Thus, while these Section 2. Declaration of Policy – To accelerate the sound
licenses come in the form of "agreements," e.g., "Timber development of the national economy in consonance with the
License Agreements," they cannot be considered contracts principles and objectives of economic nationalism, and in
under the non-impairment clause.50 pursuance of a planned, economically feasible and practicable
dispersal of industries, under conditions which will encourage
competition and discharge monopolies, it is hereby declared to
PICOP found this argument "lame," arguing, thus: be the policy of the state to encourage Filipino and foreign
investments, as hereinafter set out, in projects to develop
43. It is respectfully submitted that the aforesaid agricultural, mining and manufacturing industries which
pronouncement in the Decision is an egregious and increase national income most at the least cost, increase
monumental error. exports, bring about greater economic stability, provide more
opportunities for employment, raise the standards of living of
44. The Decision could not dismiss as "preposterous" the the people, and provide for an equitable distribution of wealth.
mutual covenants in the Presidential Warranty which calls for a It is further declared to be the policy of the state to welcome
huge investment of Php500 million at that time in 1969 out of and encourage foreign capital to establish pioneer enterprises
which Php268,440,000 raised from domestic foreign lending that are capital intensive and would utilize a substantial amount
113
of domestic raw materials, in joint venture with substantial the State, and not to PICOP. This is not changed by PICOP’s
Filipino capital, whenever available. allegation that:
Section 4. Basic Rights and Guarantees. – All investors and Since it takes 35 years before the company can go back and
enterprises are entitled to the basic rights and guarantees harvest their residuals in a logged-over area, it must be
provided in the constitution. Among other rights recognized by assured of tenure in order to provide an inducement for the
the Government of the Philippines are the following: company to manage and preserve the residuals during their
growth period. This is a commitment of resources over a span
xxxx of 35 years for each plot for each cycle. No company will
undertake the responsibility and cost involved in policing,
preserving and managing residual forest areas until it were
d) Freedom from Expropriation. – There shall be no sure that it had firm title to the timber.57
expropriation by the government of the property represented by
investments or of the property of enterprises except for public
use or in the interest of national welfare and defense and upon The requirement for logging companies to preserve and
payment of just compensation. x x x. maintain forest areas, including the reforestation thereof, is one
of the prices a logging company must pay for the exploitation
thereof. Forest lands are meant to be enjoyed by countless
e) Requisition of Investment. – There shall be no requisition of future generations of Filipinos, and not just by one logging
the property represented by the investment or of the property company. The requirements of reforestation and preservation
of enterprises, except in the event of war or national of the concession areas are meant to protect them, the future
emergency and only for the duration thereof. Just generations, and not PICOP. Reforestation and preservation of
compensation shall be determined and paid either at the time the concession areas are not required of logging companies so
of requisition or immediately after cessation of the state of war that they would have something to cut again, but so that the
or national emergency. Payments received as compensation forest would remain intact after their operations. That PICOP
for the requisitioned property may be remitted in the currency would not accept the responsibility to preserve its concession
in which the investment was originally made and at the area if it is not assured of tenure thereto does not speak well of
exchange rate prevailing at the time of remittance, subject to its corporate policies.
the provisions of Section seventy-four of republic Act
Numbered Two hundred sixty-five.
Conclusion
Section 2 speaks of the policy of the State to encourage
Filipino and foreign investments. It does not speak of how this In sum, PICOP was not able to prove either of the two things it
policy can be implemented. Implementation of this policy is needed to prove to be entitled to a Writ of Mandamus against
tackled in Sections 5 to 12 of the same law, 54 which PICOP the DENR Secretary. The 1969 Document is not a contract
failed to mention, and for a good reason. None of the 24 recognized under the non-impairment clause and, even if we
incentives enumerated therein relates to, or even remotely assume for the sake of argument that it is, it did not enjoin the
suggests that, PICOP’s proposition that the 1969 Document is government to issue an IFMA in 2002 either. These are the
a contract. essential elements in PICOP’s cause of action, and the failure
to prove the same warrants a dismissal of PICOP’s Petition for
Mandamus, as not even PICOP’s compliance with all the
PICOP could indeed argue that the enumeration is not administrative and statutory requirements can save its Petition
exclusive. Certainly, granting incentives to investors, whether now.
included in the enumeration or not, would be an
implementation of this policy. However, it is presumed that
whatever incentives may be given to investors should be within Whether PICOP Has Complied with the Statutory and
the bounds of the laws and the Constitution. The declaration of Administrative Requirements for the Conversion of the TLA to
policy in Section 2 cannot, by any stretch of the imagination, be an IFMA
read to provide an exception to either the laws or, heaven
forbid, the Constitution. Exceptions are never presumed and In the assailed Decision, our ruling was based on two distinct
should be convincingly proven. Section 2 of the Investment grounds, each one being sufficient in itself for us to rule that
Incentives Act cannot be read as exempting investors from the PICOP was not entitled to a Writ of Mandamus: (1) the 1969
Constitutional provisions (1) prohibiting private ownership of Document, on which PICOP hinges its right to compel the
forest lands; (2) providing for the complete control and issuance of an IFMA, is not a contract; and (2) PICOP has not
supervision by the State of exploitation activities; or (3) limiting complied with all administrative and statutory requirements for
exploitation agreements to twenty-five years, renewable for the issuance of an IFMA.
another twenty-five years.
When a court bases its decision on two or more grounds, each
Section 4(d) and (e), on the other hand, is a recognition of is as authoritative as the other and neither is obiter dictum.58
rights already guaranteed under the Constitution. Freedom Thus, both grounds on which we based our ruling in the
from expropriation is granted under Section 9 of Article III 55 of assailed Decision would become judicial dictum, and would
the Constitution, while the provision on requisition is a negative affect the rights and interests of the parties to this case unless
restatement of Section 6, Article XII.56 corrected in this Resolution on PICOP’s Motion for
Reconsideration. Therefore, although PICOP would not be
Refusal to grant perpetual and exclusive possession to PICOP entitled to a Writ of Mandamus even if the second issue is
of its concession area would not result in the expropriation or resolved in its favor, we should nonetheless resolve the same
requisition of PICOP’s property, as these forest lands belong to and determine whether PICOP has indeed complied with all
114
administrative and statutory requirements for the issuance of Plan were allegedly incorporated. PICOP submitted a machine
an IFMA. copy of a certified photocopy of pages 50-67 and 104-110 of
this SFMP in its Motion for Reconsideration. PICOP claims that
While the first issue (on the nature of the 1969 Document) is the existence of this SFMP was repeatedly asserted during the
entirely legal, this second issue (on PICOP’s compliance with IFMA application process.61
administrative and statutory requirements for the issuance of
an IFMA) has both legal and factual sub-issues. Legal sub- Upon examination of the portions of the SFMP submitted to us,
issues include whether PICOP is legally required to (1) consult we cannot help but notice that PICOP’s concept of forest
with and acquire an approval from the Sanggunian concerned protection is the security of the area against "illegal" entrants
under Sections 26 and 27 of the Local Government Code; and and settlers. There is no mention of the protection of the
(2) acquire a Certification from the National Commission on wildlife therein, as the focus of the discussion of the silvicultural
Indigenous Peoples (NCIP) that the concession area does not treatments and the SFMP itself is on the protection and
overlap with any ancestral domain. Factual sub-issues include generation of future timber harvests. We are particularly
whether, at the time it filed its Petition for Mandamus, PICOP disturbed by the portions stating that trees of undesirable
had submitted the required Five-Year Forest Protection Plan quality shall be removed.
and Seven-Year Reforestation Plan and whether PICOP had
paid all forest charges. However, when we required the DENR Secretary to comment
on PICOP’s Motion for Reconsideration, the DENR Secretary
For the factual sub-issues, PICOP invokes the doctrine that did not dispute the existence of this SFMP, or question
factual findings of the trial court, especially when upheld by the PICOP’s assertion that a Ten-Year Forest Protection Plan and
Court of Appeals, deserve great weight. However, deserving of a Ten-Year Reforestation Plan are already incorporated
even greater weight are the factual findings of administrative therein. Hence, since the agency tasked to determine
agencies that have the expertise in the area of concern. The compliance with IFMA administrative requirements chose to
contentious facts in this case relate to the licensing, regulation remain silent in the face of allegations of compliance, we are
and management of forest resources, the determination of constrained to withdraw our pronouncement in the assailed
which belongs exclusively to the DENR: Decision that PICOP had not submitted a Five-Year Forest
Protection Plan and a Seven-Year Reforestation Plan for its
SECTION 4. Mandate. – The Department shall be the primary TLA No. 43. As previously mentioned, the licensing, regulation
government agency responsible for the conservation, and management of forest resources are the primary
management, development and proper use of the country’s responsibilities of the DENR.62
environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in reservation The compliance discussed above is, of course, only for the
and watershed areas, and lands of the public domain, as well purpose of determining PICOP’s satisfactory performance as a
as the licensing and regulation of all natural resources as may TLA holder, and covers a period within the subsistence of
be provided for by law in order to ensure equitable sharing of PICOP’s TLA No. 43. This determination, therefore, cannot
the benefits derived therefrom for the welfare of the present prohibit the DENR from requiring PICOP, in the future, to
and future generations of Filipinos.59 submit proper forest protection and reforestation plans
covering the period of the proposed IFMA.
When parties file a Petition for Certiorari against judgments of
administrative agencies tasked with overseeing the Forest Charges
implementation of laws, the findings of such administrative
agencies are entitled to great weight. In the case at bar, PICOP In determining that PICOP did not have unpaid forest charges,
could not have filed a Petition for Certiorari, as the DENR the Court of Appeals relied on the assumption that if it were
Secretary had not yet even determined whether PICOP should true that PICOP had unpaid forest charges, it should not have
be issued an IFMA. As previously mentioned, when PICOP’s been issued an approved Integrated Annual Operation Plan
application was brought to a standstill upon the evaluation that (IAOP) for the year 2001-2002 by Secretary Alvarez himself.63
PICOP had yet to comply with the requirements for the
issuance of an IFMA, PICOP refused to attend further
meetings with the DENR and instead filed a Petition for In the assailed Decision, we held that the Court of Appeals had
Mandamus against the latter. By jumping the gun, PICOP did been selective in its evaluation of the IAOP, as it disregarded
not diminish the weight of the DENR Secretary’s initial the part thereof that shows that the IAOP was approved
determination. subject to several conditions, not the least of which was the
submission of proof of the updated payment of forest charges
from April 2001 to June 2001.64 We also held that even if we
Forest Protection and Reforestation Plans considered for the sake of argument that the IAOP should not
have been issued if PICOP had existing forestry accounts, the
The Performance Evaluation Team tasked to appraise issuance of the IAOP could not be considered proof that
PICOP’s performance on its TLA No. 43 found that PICOP had PICOP had paid the same. Firstly, the best evidence of
not submitted its Five-Year Forest Protection Plan and its payment is the receipt thereof. PICOP has not presented any
Seven-Year Reforestation Plan.60 evidence that such receipts were lost or destroyed or could not
be produced in court.65 Secondly, the government cannot be
In its Motion for Reconsideration, PICOP asserts that, in its estopped by the acts of its officers. If PICOP has been issued
Letter of Intent dated 28 August 2000 and marked as Exhibit L an IAOP in violation of the law, allegedly because it may not be
in the trial court, there was a reference to a Ten-Year issued if PICOP had existing forestry accounts, the
Sustainable Forest Management Plan (SFMP), in which a Five- government cannot be estopped from collecting such amounts
Year Forest Protection Plan and a Seven-Year Reforestation and providing the necessary sanctions therefor, including the
withholding of the IFMA until such amounts are paid.
115
We therefore found that, as opposed to the Court of Appeals’ In its Motion for Reconsideration, PICOP claims that SFMS
findings, which were based merely on estoppel of government Evangelista is assigned to an office that has nothing to do with
officers, the positive and categorical evidence presented by the the collection of forest charges, and that he based his
DENR Secretary was more convincing with respect to the issue testimony on the Memoranda of Forest Management Specialist
of payment of forestry charges: II (FMS II) Teofila Orlanes and DENR, Bislig City Bill Collector
Amelia D. Arayan, neither of whom was presented to testify on
1. Forest Management Bureau (FMB) Senior Forest his or her Memorandum. PICOP also submitted an Addendum
Management Specialist (SFMS) Ignacio M. to Motion for Reconsideration, wherein it appended certified
Evangelista testified that PICOP had failed to pay its true copies of CENRO Summaries with attached Official
regular forest charges covering the period from 22 Receipts tending to show that PICOP had paid a total of
September 2001 to 26 April 2002 in the total amount P81,184,747.70 in forest charges for 10 January 2001 to 20
of P15,056,054.0566 PICOP also allegedly paid late December 2002, including the period during which SFMS
most of its forest charges from 1996 onwards, by Evangelista claims PICOP did not pay forest charges (22
reason of which, PICOP is liable for a surcharge of September 2001 to 26 April 2002).
25% per annum on the tax due and interest of 20%
per annum which now amounts to P150,169,485.02.67 Before proceeding any further, it is necessary for us to point
Likewise, PICOP allegedly had overdue and unpaid out that, as with our ruling on the forest protection and
silvicultural fees in the amount of P2,366,901.00 as of reforestation plans, this determination of compliance with the
30 August 2002.68 Summing up the testimony, payment of forest charges is exclusively for the purpose of
therefore, it was alleged that PICOP had unpaid and determining PICOP’s satisfactory performance on its TLA No.
overdue forest charges in the sum of 43. This cannot bind either party in a possible collection case
P167,592,440.90 as of 10 August 2002.69 that may ensue.
2. Collection letters were sent to PICOP, but no An evaluation of the DENR Secretary’s position on this matter
official receipts are extant in the DENR record in Bislig shows a heavy reliance on the testimony of SFMS Evangelista,
City evidencing payment of the overdue amount making it imperative for us to strictly scrutinize the same with
stated in the said collection letters.70 There were no respect to its contents and admissibility.
official receipts for the period covering 22 September
2001 to 26 April 2002. PICOP claims that SFMS Evangelista’s office has nothing to do
with the collection of forest charges. According to PICOP, the
We also considered these pieces of evidence more convincing entity having administrative jurisdiction over it is CENRO, Bislig
than the other ones presented by PICOP: City by virtue of DENR Administrative Order No. 96-36, dated
20 November 1996, which states:
1. PICOP presented the certification of Community
Environment and Natural Resources Office (CENRO) 1. In order for the DENR to be able to exercise closer and more
Officer Philip A. Calunsag, which refers only to effective supervision, management and control over the forest
PICOP’s alleged payment of regular forest charges resources within the areas covered by TLA No. 43, PTLA No.
covering the period from 14 September 2001 to 15 47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and,
May 2002.71 We noted that it does not mention similar at the same time, provide greater facility in the delivery of
payment of the penalties, surcharges and interests DENR services to various publics, the aforesaid forest holdings
that PICOP incurred in paying late several forest of PRI are hereby placed under the exclusive jurisdiction of
charges, which fact was not rebutted by PICOP. DENR Region No. XIII with the CENR Office at Bislig, Surigao
del Sur, as directly responsible thereto. x x x.
2. The 27 May 2002 Certification by CENRO
Calunsag specified only the period covering 14 We disagree. Evangelista is an SFMS assigned at the Natural
September 2001 to 15 May 2002 and the amount of Forest Management Division of the FMB, DENR. In
P53,603,719.85 paid by PICOP without indicating the Evangelista’s aforementioned affidavit submitted as part of his
corresponding volume and date of production of the direct examination, Evangelista enumerated his duties and
logs. This is in contrast to the findings of SFMS functions as SFMS:
Evangelista, which cover the period from CY 1996 to
30 August 2002 and includes penalties, interests, and 1. As SFMS, I have the following duties and functions:
surcharges for late payment pursuant to DAO 80,
series of 1987.
a) To evaluate and act on cases pertaining to
forest management referred to in the Natural
3. The 21 August 2002 PICOP-requested certification forest Management Division;
issued by Bill Collector Amelia D. Arayan, and
attested to by CENRO Calunsag himself, shows that
PICOP paid only regular forest charges for its log b) To monitor, verify and validate forest
production covering 1 July 2001 to 21 September management and related activities by timber
2001. However, there were log productions after 21 licences as to their compliance to approved
September 2001, the regular forest charges for which plans and programs;
have not been paid, amounting to P15,056,054.05.72
The same certification shows delayed payment of c) To conduct investigation and verification of
forest charges, thereby corroborating the testimony of compliance by timber licenses/permittees to
SFMS Evangelista and substantiating the imposition existing DENR rules and regulations;
of penalties and surcharges.
116
d) To gather field data and information to be PICOP is mandated to pay a surcharge of 25% per
used in the formulation of forest policies and annum of the tax due and interest of 20% per annum
regulations; and for late payment of forest charges.
e) To perform other duties and 11. The overdue unpaid forest charges of PICOP as
responsibilities as may be directed by shown in the attached tabulation marked as Annex 4
superiors.73 hereof is P150,169,485.02. Likewise, PICOP has
overdue and unpaid silvicultural fees in the amount of
PICOP also alleges that the testimony of SFMS P2,366,901.00 from 1996 to the present.
Evangelista was based on the aforementioned
Memoranda of Orlanes and Arayan and that, since 12. In all, PICOP has an outstanding and overdue
neither Orlanes nor Arayan was presented as a total obligation of P167,592,440.90 as of August 30,
witness, SFMS Evangelista’s testimony should be 2002 based on the attached tabulation which is
deemed hearsay. SFMS Evangelista’s 1 October marked as Annex 5 hereof.75
2002 Affidavit,74 which was offered as part of his
testimony, provides: Clearly, SFMS Evangelista had not relied on the Memoranda of
Orlanes and Arayan. On the contrary, he traveled to Surigao
2. Sometime in September, 2001 the DENR Secretary del Sur in order to verify the contents of these Memoranda.
was furnished a copy of forest Management Specialist SFMS Evangelista, in fact, revised the findings therein, as he
II (FMS II) Teofila L. Orlanes’ Memorandum dated discovered that certain forest charges adverted to as unpaid
September 24, 2001 concerning unopaid forest had already been paid.
charges of PICOP. Attached to the said Memorandum
was a Memorandum dated September 19, 2001 of This does not mean, however, that SFMS Evangelista’s
Amelia D. Arayan, Bill collector of the DENR R13-14, testimony was not hearsay. A witness may testify only on facts
Bislig City. Copies of the said Memoranda are of which he has personal knowledge; that is, those derived
attached as Annexes 1 and 2, respectively. from his perception, except in certain circumstances allowed by
the Rules.76 Otherwise, such testimony is considered hearsay
3. The said Memoranda were referred to the FMB and, hence, inadmissible in evidence.77
Director for appropriate action.
SFMS Evangelista, while not relying on the Memoranda of
4. Thus, on August 5, 2002, I was directed by the Orlanes and Arayan, nevertheless relied on records, the
FMB Director to proceed to Region 13 to gather preparation of which he did not participate in.78 These records
forestry-related data and validate the report contained and the persons who prepared them were not presented in
in the Memoranda of Ms. Orlanes and Arayan. court, either. As such, SFMS Evangelista’s testimony, insofar
as he relied on these records, was on matters not derived from
5. On August 6, 2002, I proceeded to DENR Region his own perception, and was, therefore, hearsay.
13 in Bislig City. A copy of my Travel Order is
attached as Annex 3. Section 44, Rule 130 of the Rules of Court, which speaks of
entries in official records as an exception to the hearsay rule,
6. Upon my arrival at CENRO, Bislig, surigao del Sur, cannot excuse the testimony of SFMS Evangelista. Section 44
I coordinated with CENRO Officer Philip A. Calunsag provides:
and requested him to make available to me the
records regarding the forest products assessments of SEC. 44. Entries in official records. – Entries in official records
PICOP. made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty
7. After I was provided with the requested records, I specially enjoined by law, are prima facie evidence of the facts
evaluated and collected the data. therein stated.
8. After the evaluation, I found that the unpaid forest In Africa v. Caltex,79 we enumerated the following requisites for
charges adverted to in the Memoranda of Mr. Orlanes the admission of entries in official records as an exception to
and Arayan covering the period from May 8, 2001 to the hearsay rule: (1) the entries were made by a public officer
July 7, 2001 had already been paid but late. I further or a private person in the performance of a duty; (2) the
found out that PICOP had not paid its forest charges performance of the duty is especially enjoined by law; (3) the
covering the period from September 22, 2001 to April public officer or the private person had sufficient knowledge of
26, 2002 in the total amount of P15,056,054.05. the facts stated by him, which must have been acquired by him
personally or through official information.
9. I also discovered that from 1996 up to august 30,
2002, PICOP paid late some of its forest charges in The presentation of the records themselves would, therefore,
1996 and consistently failed to pay late its forest have been admissible as an exception to the hearsay rule even
charges from 1997 up to the present time. if the public officer/s who prepared them was/were not
presented in court, provided the above requisites could be
adequately proven. In the case at bar, however, neither the
10. Under Section 7.4 of DAO No. 80 Series of 197\87 records nor the persons who prepared them were presented in
and Paragraph (4a), Section 10 of BIR revenue court. Thus, the above requisites cannot be sufficiently proven.
Regulations No. 2-81 dated November 18, 1980, Also, since SFMS Evangelista merely testified based on what
117
those records contained, his testimony was hearsay evidence PICOP had tried to put a cloud of ambiguity over Section 59 of
twice removed, which was one step too many to be covered by Republic Act No. 8371 by invoking the definition of Ancestral
the official-records exception to the hearsay rule. Domains in Section 3(a) thereof, wherein the possesssion by
Indigenous Cultural Communities/Indigenous Peoples
SFMS Evangelista’s testimony of nonpayment of forest (ICCs/IPs) must have been continuous to the present.
charges was, furthermore, based on his failure to find official However, we noted the exception found in the very same
receipts corresponding to billings sent to PICOP. As stated sentence invoked by PICOP:
above, PICOP attached official receipts in its Addendum to
Motion for Reconsideration to this Court. While this course of a) Ancestral domains – Subject to Section 56 hereof, refers to
action is normally irregular in judicial proceedings, we merely all areas generally belonging to ICCs/IPs comprising lands,
stated in the assailed Decision that "the DENR Secretary has inland waters, coastal areas, and natural resources therein,
adequately proven that PICOP has, at this time, failed to held under a claim of ownership, occupied or possessed by
comply with administrative and statutory requirements for the ICCs/IPs, by themselves or through their ancestors,
conversion of TLA No. 43 into an IFMA," 80 and that "this communally or individually since time immemorial, continuously
disposition confers another chance to comply with the to the present except when interrupted by war, force majeure
foregoing requirements."81 or displacement by force, deceit, stealth or as a consequence
of government projects or any other voluntary dealings entered
In view of the foregoing, we withdraw our pronouncement that into by government and private individuals/corporations, and
PICOP has unpaid forestry charges, at least for the purpose of which are necessary to ensure their economic, social and
determining compliance with the IFMA requirements. cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting
NCIP Certification grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources, and lands which may no
The Court of Appeals held that PICOP need not comply with longer be exclusively occupied by ICCs/IPs but from which
Section 59 of Republic Act No. 8371, which requires prior they traditionally had access to for their subsistence and
certification from the NCIP that the areas affected do not traditional activities, particularly the home ranges of ICCs/IPs
overlap with any ancestral domain before any IFMA can be who are still nomadic and/or shifting cultivators;
entered into by the government. According to the Court of
Appeals, Section 59 should be interpreted to refer to ancestral Ancestral domains, therefore, remain as such even when
domains that have been duly established as such by the possession or occupation of these areas has been interrupted
continuous possession and occupation of the area concerned by causes provided under the law, such as voluntary dealings
by indigenous peoples since time immemorial up to the entered into by the government and private
present. The Court of Appeals held that PICOP had acquired individuals/corporations. Consequently, the issuance of TLA
property rights over TLA No. 43 areas, being in exclusive, No. 43 in 1952 did not cause the ICCs/IPs to lose their
continuous and uninterrupted possession and occupation of possession or occupation over the area covered by TLA No.
these areas since 1952 up to the present. 43.
In the assailed Decision, we reversed the findings of the Court Thirdly, we held that it was manifestly absurd to claim that the
of Appeals. Firstly, the Court of Appeals ruling defies the subject lands must first be proven to be part of ancestral
settled jurisprudence we have mentioned earlier, that a TLA is domains before a certification that the lands are not part of
neither a property nor a property right, and that it does not ancestral domains can be required, and invoked the separate
create a vested right.82 opinion of now Chief Justice Reynato Puno in Cruz v.
Secretary of DENR83:
Secondly, the Court of Appeals’ resort to statutory construction
is misplaced, as Section 59 of Republic Act No. 8379 is clear As its subtitle suggests, [Section 59 of R.A. No. 8371] requires
and unambiguous: as a precondition for the issuance of any concession, license
or agreement over natural resources, that a certification be
SEC. 59. Certification Precondition. – All departments and issued by the NCIP that the area subject of the agreement
other governmental agencies shall henceforth be strictly does not lie within any ancestral domain. The provision does
enjoined from issuing, renewing or granting any concession, not vest the NCIP with power over the other agencies of the
license or lease, or entering into any production-sharing State as to determine whether to grant or deny any concession
agreement, without prior certification from the NCIP that the or license or agreement. It merely gives the NCIP the authority
area affected does not overlap with any ancestral domain. to ensure that the ICCs/IPs have been informed of the
Such certification shall only be issued after a field-based agreement and that their consent thereto has been obtained.
investigation is conducted by the Ancestral Domains Office of Note that the certification applies to agreements over natural
the area concerned: Provided, That no certification shall be resources that do not necessarily lie within the ancestral
issued by the NCIP without the free and prior informed and domains. For those that are found within the said domains,
written consent of the ICCs/IPs concerned: Provided, further, Sections 7(b) and 57 of the IPRA apply.
That no department, government agency or government-
owned or controlled corporation may issue new concession, PICOP rejects the entire disposition of this Court on the matter,
license, lease, or production sharing agreement while there is a relying on the following theory:
pending application for a CADT: Provided, finally, That the
ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement 84. It is quite clear that Section 59 of R.A. 8371 does not apply
of this consultation process. to the automatic conversion of TLA 43 to IFMA.
118
First, the automatic conversion of TLA 43 to an IFMA is not a We are not sure whether PICOP’s counsels are deliberately
new project. It is a mere continuation of the harvesting process trying to mislead us, or are just plainly ignorant of basic
in an area that PICOP had been managing, conserving and precepts of law. The term "claim" in the phrase "claim of
reforesting for the last 50 years since 1952. Hence any ownership" is not a document of any sort. It is an attitude
pending application for a CADT within the area, cannot affect towards something. The phrase "claim of ownership" means
much less hold back the automatic conversion. That the "the possession of a piece of property with the intention of
government now wishes to change the tenurial system to an claiming it in hostility to the true owner." 86 It is also defined as
IFMA could not change the PICOP project, in existence and "a party’s manifest intention to take over land, regardless of
operating for the last 30 (sic) years, into a new one.84 title or right."87 Other than in Republic Act No. 8371, the phrase
"claim of ownership" is thoroughly discussed in issues relating
PICOP’s position is anything but clear. What is clearly provided to acquisitive prescription in Civil Law.
for in Section 59 is that it covers "issuing, renewing or granting
(of) any concession, license or lease, or entering into any Before PICOP’s counsels could attribute to us an assertion that
production sharing agreement." PICOP is implying that, when a mere attitude or intention would stop the renewal or issuance
the government changed the tenurial system to an IFMA, of any concession, license or lease or any production-sharing
PICOP’s existing TLA would just be upgraded or modified, but agreement, we should stress beforehand that this attitude or
would be the very same agreement, hence, dodging the intention must be clearly shown by overt acts and, as required
inclusion in the word "renewing." However, PICOP is by Section 3(a), should have been in existence "since time
conveniently leaving out the fact that its TLA expired in 2002. If immemorial, continuously to the present except when
PICOP really intends to pursue the argument that the interrupted by war, force majeure or displacement by force,
conversion of the TLA into an IFMA would not create a new deceit, stealth or as a consequence of government projects or
agreement, but would only be a modification of the old one, any other voluntary dealings entered into by government and
then it should be willing to concede that the IFMA expired as private individuals/corporations."
well in 2002. An automatic modification would not alter the
terms and conditions of the TLA except when they are Another argument of PICOP involves the claim itself that there
inconsistent with the terms and conditions of an IFMA. was no overlapping:
Consequently, PICOP’s concession period under the renewed
TLA No. 43, which is from the year 1977 to 2002, would remain
the same. Second, there could be no overlapping with any Ancestral
Domain as proven by the evidence presented and testimonies
rendered during the hearings in the Regional Trial Court. x x x.
PICOP cannot rely on a theory of the case whenever such
theory is beneficial to it, but refute the same whenever the
theory is damaging to it. In the same way, PICOP cannot claim x x x x.
that the alleged Presidential Warranty is "renewable for other
25 years" and later on claim that what it is asking for is not a 88. The DENR issued a total of 73 CADCs as of December 11,
renewal. Extensions of agreements must necessarily be 1996. The DENR Undersecretary for Field Operations had
included in the term renewal. Otherwise, the inclusion of recommended another 11 applications for issuance of CADCs.
"renewing" in Section 59 would be rendered inoperative. None of the CADCs overlap the TLA 43 area.
119
What is required in Section 59 of Republic Act No. 8379 is a SEC. 27. Prior Consultations Required. – No project or
Certification from the NCIP that there was no overlapping with program shall be implemented by government authorities
any Ancestral Domain. PICOP cannot claim that the DENR unless the consultations mentioned in Sections 2(c) and 26
gravely abused its discretion for requiring this Certification, on hereof are complied with, and prior approval of the sanggunian
the ground that there was no overlapping. We reiterate that it is concerned is obtained: Provided, That occupants in areas
manifestly absurd to claim that the subject lands must first be where such projects are to be implemented shall not be evicted
proven to be part of ancestral domains before a certification unless appropriate relocation sites have been provided, in
that they are not can be required. As discussed in the assailed accordance with the provisions of the Constitution.
Decision, PICOP did not even seek any certification from the
NCIP that the area covered by TLA No. 43, subject of its IFMA As stated in the assailed Decision, the common evidence of
conversion, did not overlap with any ancestral domain. 88 the DENR Secretary and PICOP, namely, the 31 July 2001
Memorandum of Regional Executive Director (RED) Elias D.
Sanggunian Consultation and Approval Seraspi, Jr., enumerated the local government units and other
groups which had expressed their opposition to PICOP’s
While PICOP did not seek any certification from the NCIP that application for IFMA conversion:
the former’s concession area did not overlap with any ancestral
domain, PICOP initially sought to comply with the requirement 7. During the conduct of the performance evaluation of TLA
under Sections 26 and 27 of the Local Government Code to No. 43 issues complaints against PRI were submitted thru
procure prior approval of the Sanggunians concerned. Resolutions and letters. It is important that these are included
However, only one of the many provinces affected approved in this report for assessment of what are their worth, viz:
the issuance of an IFMA to PICOP. Undaunted, PICOP
nevertheless submitted to the DENR the purported resolution 89 xxxx
of the Province of Surigao del Sur indorsing the approval of
PICOP’s application for IFMA conversion, apparently hoping
either that the disapproval of the other provinces would go 7.2 Joint Resolution (unnumbered), dated March 19, 2001 of
unnoticed, or that the Surigao del Sur approval would be the Barangay Council and Barangay Tribal Council of Simulao,
treated as sufficient compliance. Boston, Davao Oriental (ANNEX F) opposing the conversion of
TLA No. 43 into IFMA over the 17,112 hectares allegedly
covered with CADC No. 095.
Surprisingly, the disapproval by the other provinces did go
unnoticed before the RTC and the Court of Appeals, despite
the repeated assertions thereof by the Solicitor General. When 7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G
we pointed out in the assailed Decision that the approval must & H) of the Bunawan Tribal Council of Elders (BBMTCE)
be by all the Sanggunians concerned and not by only one of strongly demanding none renewal of PICOP TLA. They claim
them, PICOP changed its theory of the case in its Motion for to be the rightful owner of the area it being their alleged
Reconsideration, this time claiming that they are not required at ancestral land.
all to procure Sanggunian approval.
7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig
Sections 2(c), 26 and 27 of the Local Government Code City (ANNEX I) requesting not to renew TLA 43 over the 900
provide: hectares occupied by them.
120
breadth not only of Surigao del Sur but also of Agusan del Sur, corporations or associations at least sixty per centum of whose
Compostela Valley and Davao Oriental.92 capital is owned by these citizens, such as PICOP, the projects
nevertheless remain as State projects and can never be purely
On Motion for Reconsideration, PICOP now argues that the private endeavors.
requirement under Sections 26 and 27 does not apply to it:
Also, despite entering into co-production, joint venture, or
97. PICOP is not a national agency. Neither is PICOP production-sharing agreements, the State remains in full
government owned or controlled. Thus Section 26 does not control and supervision over such projects. PICOP, thus,
apply to PICOP. cannot limit government participation in the project to being
merely its bouncer, whose primary participation is only to
"warrant and ensure that the PICOP project shall have
98. It is very clear that Section 27 refers to projects or peaceful tenure in the permanent forest allocated to provide
programs to be implemented by government authorities or raw materials for the project."
government-owned and controlled corporations. PICOP’s
project or the automatic conversion is a purely private
endevour. First the PICOP project has been implemented since PICOP is indeed neither a national agency nor a government-
1969. Second, the project was being implemented by private owned or controlled corporation. The DENR, however, is a
investors and financial institutions. national agency and is the national agency prohibited by
Section 27 from issuing an IFMA without the prior approval of
the Sanggunian concerned. As previously discussed, PICOP’s
99. The primary government participation is to warrant and Petition for Mandamus can only be granted if the DENR
ensure that the PICOP project shall have peaceful tenure in the Secretary is required by law to issue an IFMA. We, however,
permanent forest allocated to provide raw materials for the see here the exact opposite: the DENR Secretary was actually
project. To rule now that a project whose foundations were prohibited by law from issuing an IFMA, as there had been no
commenced as early as 1969 shall now be subjected to a 1991 prior approval by all the other Sanggunians concerned.
law is to apply the law retrospectively in violation of Article 4 of
the Civil Code that laws shall not be applied retroactively.
As regards PICOP’s assertion that the application to them of a
1991 law is in violation of the prohibition against the non-
100. In addition, under DAO 30, Series of 1992, TLA and IFMA retroactivity provision in Article 4 of the Civil Code, we have to
operations were not among those devolved function from the remind PICOP that it is applying for an IFMA with a term of
National Government / DENR to the local government unit. 2002 to 2027. Section 2, Article XII of the Constitution allows
Under its Section 03, the devolved function cover only: exploitation agreements to last only "for a period not exceeding
twenty-five years, renewable for not more than twenty-five
a) Community Based forestry projects. years." PICOP, thus, cannot legally claim that the project’s
term started in 1952 and extends all the way to the present.
b) Communal forests of less than 5000 hectares
Finally, the devolution of the project to local government units
c) Small watershed areas which are sources of local is not required before Sections 26 and 27 would be applicable.
water supply.93 Neither Section 26 nor 27 mentions such a requirement.
Moreover, it is not only the letter, but more importantly the spirit
of Sections 26 and 27, that shows that the devolution of the
We have to remind PICOP again of the contents of Section 2, project is not required. The approval of the Sanggunian
Article XII of the Constitution: concerned is required by law, not because the local
government has control over such project, but because the
Section 2. All lands of the public domain, waters, minerals, local government has the duty to protect its constituents and
coal, petroleum, and other mineral oils, all forces of potential their stake in the implementation of the project. Again, Section
energy, fisheries, forests or timber, wildlife, flora and fauna, 26 states that it applies to projects that "may cause pollution,
and other natural resources are owned by the State. With the climatic change, depletion of non-renewable resources, loss of
exception of agricultural lands, all other natural resources shall crop land, rangeland, or forest cover, and extinction of animal
not be alienated. The exploration, development, and utilization or plant species." The local government should thus represent
of natural resources shall be under the full control and the communities in such area, the very people who will be
supervision of the State. The State may directly undertake affected by flooding, landslides or even climatic change if the
such activities, or it may enter into co-production, joint venture, project is not properly regulated, and who likewise have a
or production-sharing agreements with Filipino citizens, or stake in the resources in the area, and deserve to be
corporations or associations at least sixty per centum of whose adequately compensated when these resources are exploited.
capital is owned by such citizens. Such agreements may be for
a period not exceeding twenty-five years, renewable for not Indeed, it would be absurd to claim that the project must first
more than twenty-five years, and under such terms and be devolved to the local government before the requirement of
conditions as may be provided by law. In cases of water rights the national government seeking approval from the local
for irrigation, water supply, fisheries, or industrial uses other government can be applied. If a project has been devolved to
than the development of water power, beneficial use may be the local government, the local government itself would be
the measure and limit of the grant. implementing the project. That the local government would
need its own approval before implementing its own project is
All projects relating to the exploration, development and patently silly.
utilization of natural resources are projects of the State. While
the State may enter into co-production, joint venture, or EPILOGUE AND DISPOSITION
production-sharing agreements with Filipino citizens, or
121
PICOP’c cause of action consists in the allegation that the The Facts and the Case
DENR Secretary, in not issuing an IFMA, violated its
constitutional right against non-impairment of contracts. We The provincial prosecutor of Bulacan charged the accused
have ruled, however, that the 1969 Document is not a contract Zenaida Quebral, Eusebio Quebral, Fernando Lopez, and
recognized under the non-impairment clause, much less a Michael Salvador before the Regional Trial Court (RTC) of
contract specifically enjoining the DENR Secretary to issue the Malolos, Bulacan, in Criminal Case 3331-M-2002 with violation
IFMA. The conclusion that the 1969 Document is not a contract of Section 5, Article II of Republic Act 9165 or the
recognized under the non-impairment clause has even been Comprehensive Dangerous Drugs Act of 2002.
disposed of in another case decided by another division of this
Court, PICOP Resources, Inc. v. Base Metals Mineral
Resources Corporation,94 the Decision in which case has At the trial of this case, the prosecution presented PO3 Cecilio
become final and executory. PICOP’s Petition for Mandamus Galvez of the police force of Balagtas, Bulacan, who testified
should, therefore, fail. that at 7:00 p.m. on September 7, 2002, the Chief of the Drug
Enforcement Unit called him and other police officers to a
briefing regarding a police informer’s report that two men and a
Furthermore, even if we assume for the sake of argument that woman on board an owner type jeep with a specific plate
the 1969 Document is a contract recognized under the non- number would deliver shabu, a prohibited drug, on the
impairment clause, and even if we assume for the sake of following day at a Petron Gasoline Station in Balagtas to
argument that the same is a contract specifically enjoining the Michael Salvador, a drug pusher in the police watch list.1
DENR Secretary to issue an IFMA, PICOP’s Petition for
Mandamus must still fail. The 1969 Document expressly states
that the warranty as to the tenure of PICOP is "subject to After a short briefing on the morning of September 8, 2002,
compliance with constitutional and statutory requirements as PO3 Galvez and six other police officers went to the North
well as with existing policy on timber concessions." Thus, if Luzon Expressway Balagtas Exit at Burol 2nd, watching out for
PICOP proves the two above-mentioned matters, it still has to the owner type jeep mentioned. They got there at around 7:45
prove compliance with statutory and administrative a.m. Since the informer did not give the exact time of the
requirements for the conversion of its TLA into an IFMA. delivery of shabu, the police officers staked out the expressway
exit until late afternoon. At around 4:00 p.m., such a jeep,
bearing the reported plate number and with two men and a
While we have withdrawn our pronouncements in the assailed woman on board, came out of the Balagtas Exit. Galvez
Decision that (1) PICOP had not submitted the required forest identified the two men as accused Eusebio Quebral, who drove
protection and reforestation plans, and that (2) PICOP had the jeep, and accused-appellant Fernando Lopez and the
unpaid forestry charges, thus effectively ruling in favor of woman as accused-appellant Zenaida Quebral. The police
PICOP on all factual issues in this case, PICOP still insists that trailed the jeep as it proceeded to the town proper of Balagtas
the requirements of an NCIP certification and Sanggunian and entered a Petron gas station along the McArthur Highway.
consultation and approval do not apply to it. To affirm PICOP’s
position on these matters would entail nothing less than
rewriting the Indigenous Peoples’ Rights Act and the Local After a few minutes, a Tamaraw FX arrived from which
Government Code, an act simply beyond our jurisdiction. accused- appellant Michael Salvador alighted. He walked
towards the jeep and talked to accused Zenaida Quebral, who
then handed a white envelope to him. On seeing this, PO3
WHEREFORE, the Motion for Reconsideration of PICOP Galvez, who was watching from about 15 meters in a tinted
Resources, Inc. is DENIED. car, signaled his back-up team to move. The police officers
alighted from their vehicles and surrounded the jeep. Galvez
SO ORDERED. took the envelope from Michael, opened it, and saw five plastic
sachets containing white crystalline substance which he
believed was shabu.
G.R. No. 185379 November 27, 2009 Appellants denied having committed the crime, claiming only
that PO3 Galvez and his fellow police officers merely framed
PEOPLE OF THE PHILIPPINES, Appellee, them up.
vs.
ZENAIDA QUEBRAL y MATEO, FERNANDO LOPEZ y On March 18, 2004 the RTC found all four accused guilty of the
AMBUS and MICHAEL SALVADOR y JORNACION, crime charged and sentenced them to suffer the penalty of life
Appellants. imprisonment and to pay a fine of P5 million.
DECISION On May 20, 2005, while the Court of Appeals (CA) was
reviewing the case on appeal in CA-G.R. CR-HC 01997,
ABAD, J.: accused Eusebio Quebral died, prompting it to dismiss the
case against him. On February 13, 2008, the CA rendered
This case is about the requirement of authentication of seized judgment,3 entirely affirming the decision of the RTC. The
prohibited drugs and the conduct of warrantless search of a remaining accused appealed to this Court.
suspect by the roadside based on probable cause.
122
The Issues Presented of the accused would be bringing marijuana from up north.
They likewise had probable cause to search her
Appellants basically raise two issues for this Court’s resolution: belongings since she fitted the given description. In such
a case, the warrantless search was valid and,
consequently, any evidence obtained from it is admissible
1. Whether or not the CA erred in not excluding the against the accused.1avvphi1
evidence of the seized shabu on the ground that,
having illegally arrested the accused, the police
officers’ subsequent search of their persons incident As the lower court aptly put it in this case, the law
to such arrest was also illegal; and enforcers already had an inkling of the personal
circumstances of the persons they were looking for and
the criminal act they were about to commit. That these
2. Whether or not the prosecution presented ample circumstances played out in their presence supplied
proof of appellants’ guilt beyond reasonable doubt. probable cause for the search. The police acted on
reasonable ground of suspicion or belief supported by
The Rulings of the Court circumstances sufficiently strong in themselves to warrant
a cautious man to believe that a crime has been committed
One. The accused claim that since the police did not have or is about to be committed.7 Since the seized shabu
valid ground to arrest them, their subsequent search of resulted from a valid search, it is admissible in evidence
them was illegal and the evidence of the seized shabu against the accused.
cannot be admitted in evidence against them. With the
exclusion of the seized drugs, there would not be proof It would have been impractical for the police to apply with
that they were passing them. the appropriate court for a search warrant since their
suspicion found factual support only at the moment
The accused-appellants invoke the rule that a person may accused Eusebio Quebral, Fernando Lopez, and Zenaida
be arrested even without a warrant only a) if he is caught Quebral rendezvoused with Michael Salvador at the Petron
in the act of committing a crime, b) if he has just gas station for the hand over of the drugs. An immediate
committed a crime and the arresting officer pursued him, search was warranted since they would have gone away
or c) if he escaped from a legal confinement. 4 But in the by the time the police could apply for a search warrant. 8
first two instances, the officer must have personal The drugs could be easily transported and concealed with
knowledge of the facts underlying the arrest. The target impunity.9
person’s observable acts must clearly spell a crime. If no
crime is evident from those acts, no valid arrest can be The case of People v. Aminnudin10 cannot apply to this
made. An informant whispering to the police officer’s ear case. In Aminnudin, the informant gave the police the
that the person walking or standing on the street has name and description of the person who would be coming
committed or is committing a crime will not do. The down from a ship the following day carrying a shipment of
arresting officer must himself perceive the manifestations drugs. In such a case, the Court held that the police had
of a crime.5 ample time to seek a search warrant against the named
person so they could validly search his luggage. In the
The accused-appellants point out that in this case the present case, all the information the police had about the
police officers cannot say that what they saw from a persons in possession of the prohibited drugs was that
distance constituted a crime. Two men and a woman they were two men and a woman on board an owner type
arrived on board a jeep at the gas station. A third man jeep. A search warrant issued against such persons could
approached the jeep, spoke to the woman and she handed be used by the police to harass practically anyone.
him a folded white envelope that appeared to contain
something. These acts do not constitute a crime per se. Two. The accused-appellants point out that the testimony
Consequently, their arrest at this point was illegal. The of PO3 Galvez cannot support their conviction since it
subsequent search of their persons, not being based on a does not bear the corroboration of the other officers
valid arrest, was itself illegal. involved in the police operation against them. But the
failure of these other officers did not weaken the
But, actually, it was more of a search preceding an arrest. prosecution evidence. The lone declaration of an
The police officers had information that two men and a eyewitness is sufficient to convict if, as in this case, the
woman on board an owner type jeep would arrive in court finds the same credible.11 Credibility goes into a
Balagtas and hand over a consignment of shabu at a gas person’s integrity, to the fact that he is worthy of belief, 12
station in town to a known drug dealer whose name was and does not come with the number of witnesses.13
on the police watch list. When these things unfolded
before their eyes as they watched from a distance, the The accused-appellants also point out that, since the
police came down on those persons and searched them, chemist who examined the seized substance did not
resulting in the discovery and seizure of a quantity of testify in court, the prosecution was unable to establish
shabu in their possession. In such a case, the search is a the indispensable element of corpus delicti. But this claim
valid search justifying the arrest that came after it. is unmeritorious. This Court has held that the non-
presentation of the forensic chemist in illegal drug cases
This Court held in People v. Bagista6 that the NARCOM is an insufficient cause for acquittal.14 The corpus delicti in
officers had probable cause to stop and search all dangerous drugs cases constitutes the dangerous drug
vehicles coming from the north at Acop, Tublay, Benguet, itself. This means that proof beyond doubt of the identity
in view of the confidential information they received from of the prohibited drug is essential.15
their regular informant that a woman fitting the description
123
Besides, corpus delicti has nothing to do with the shabu solely to incriminate the accused who have not
testimony of the laboratory analyst. In fact, this Court has been shown to be of good financial standing.27
ruled that the report of an official forensic chemist
regarding a recovered prohibited drug enjoys the WHEREFORE, the Court DENIES the appeal and AFFIRMS
presumption of regularity in its preparation. Corollarily, the decision of the Court of Appeals dated February 13,
under Section 44 of Rule 130, Revised Rules of Court, 2008 and of the Regional Trial Court of Malolos dated
entries in official records made in the performance of March 18, 2004.
official duty are prima facie evidence of the facts they
state.16 Therefore, the report of Forensic Chemical Officer
Sta. Maria that the five plastic sachets PO3 Galvez gave to SO ORDERED.
her for examination contained shabu is conclusive in the
absence of evidence proving the contrary. At any rate, as
the CA pointed out, the defense agreed during trial to
dispense with the testimony of the chemist and stipulated
on his findings.17
124
PANGANIBAN, J.:
The Case
The Facts
125
"Louie Biraogo in his Answer denied illegally entering the lot in The Issues
question. He averred that Habagat Grill was built in 1992 inside
Municipal Reservation No. 1050 (Presidential Proclamation No. In its Memorandum, petitioner raises the following issues for
20) and so DMC has no cause of action against him. Since one our consideration:
of the vital issues in the case was the location of Habagat Grill,
the Municipal Trial Court in Cities constituted a team composed
of three members, one a Geodetic Engineer representing the "1. That, with due respect, the Honorable Court of Appeals
DMC, another Geodetic Engineer representing Biraogo and the erred in not finding that the Honorable Court of First Level has
third from the DENR which was tasked with the duty of no jurisdiction over this case as petitioner’s possession and
determining where precisely was Habagat Grill located, on the occupation of the lot where Habagat Grill was constructed on
lot in question or on Municipal Reservation No. 1050. Biraogo the subject premises was yet in 1992 or for more than one (1)
was directed by the court to furnish the team with a copy of year prior to the filing of this case on April 7, 1994 and that
Municipal Reservation No. 20. Biraogo never complied. Worse, respondent’s predecessor (David M. Consunji, Inc.) had not
his designated Geodetic Engineer Panfilo Jayme never took been in prior and physical possession of the subject premises,
oath as such and did not participate in the Relocation survey. as a matter of fact, it failed to allege the same in its Complaint
The ones who conducted the survey were Engr. Edmindo Dida in this case; and
of the DENR and Engr. Jose Cordero, DMC’s representative.
After conducting the relocation survey on March 30, 1998, "2. That, with due respect, the Honorable Court of Appeals
engineers Dida and Cordero submitted their report to the Court erred in not finding that the Complaint of respondent’s
specifically stating that the Habagat Grill Restaurant was predecessor (David M. Consunji, Inc.) in this case failed to
occupying 934 square meters of the lot in question. state a valid cause of action as the lot referred to therein is not
particularly described and is different from the lot on which the
"After necessary proceedings, the Municipal Trial Court in Habagat Grill was constructed."13
Cities rendered a Decision on August 6, 1998 dismissing the
case on the ground of lack of jurisdiction and lack of cause of Simplified, the issues are (1) whether the MTC had jurisdiction
action. DMC appealed from said Decision to the Regional Trial over the case, and (2) whether respondent alleged a sufficient
Court and the same was docketed in Branch 12, in Davao City cause of action in its Complaint.
as Civil Case No. x x x 26,860.98. On February 16, 1999, said
court rendered judgment affirming the appealed Decision. A This Court’s Ruling
Motion for Reconsideration was filed but was denied in the
court’s Order dated April 21, 1999."5
The Petition has no merit.
Consequently, respondent interposed an appeal to the CA.
First Issue:
Ruling of the Court of Appeals
Jurisdiction
Granting respondent’s appeal, the Court of Appeals ruled that
the court of origin had jurisdiction over the Complaint for Petitioner argues that the lower court did not acquire
Forcible Entry.6 The CA gave greater weight to the testimony of jurisdiction over the case, because mere allegation of
respondent’s real property manager, Bienamer Garcia, that ownership did not, by itself, show that respondent had prior
Habagat Grill had been built on December 1, 1993.7 The possession of the property.14
appellate court opined that his testimony was credible,
because he had personal knowledge of the facts he had We disagree. Jurisdiction in ejectment cases is determined by
testified to -- it was his task to know such matters. On the other the allegations pleaded in the complaint.15 As long as these
hand, it was not clear in what capacity petitioner’s witness, allegations demonstrate a cause of action either for forcible
Samuel Ruiz, came to know of the facts he had testified to. 8 entry or for unlawful detainer, the court acquires jurisdiction
The CA further held that the minutes of the Urban Planning and over the subject matter. This principle holds, even if the facts
Economic Development hearings -- submitted by petitioner to proved during the trial do not support the cause of action thus
prove the construction of Habagat Grill in 1992 -- were alleged, in which instance the court -- after acquiring
immaterial, as these referred to another establishment.9 jurisdiction -- may resolve to dismiss the action for insufficiency
of evidence.
The CA faulted petitioner for not presenting any other
documentary evidence to establish the date of Habagat Grill’s The necessary allegations in a Complaint for ejectment are set
construction.10 It added that the court of origin had improperly forth in Section 1 of Rule 70 of the Rules of Court, which reads
adjudged the subject property as part of the public domain. The thus:
appellate court explained that the lower court could take
cognizance of Presidential Proclamation No. 20, but not of the
SECTION 1. Who may institute proceedings, and when. –
situational relation between the property covered by the
Subject to the provisions of the next succeeding section, a
Proclamation and the land in question. The CA further criticized
person deprived of the possession of any land or building by
petitioner for not presenting any evidence to show the basis of
force, intimidation, threat, strategy, or stealth, or a lessor,
the latter’s alleged authority to build Habagat Grill on the
vendor, vendee, or other person against whom the possession
property.11
of any land or building is unlawfully withheld after the expiration
or termination of the right to hold possession, by virtue of any
Hence, this Petition.12 contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful
126
deprivation or withholding of possession, bring an action in the "Preponderance of evidence" means that the evidence
proper Municipal Trial Court against the person or persons adduced by one side is, as a whole, superior to or has greater
unlawfully withholding or depriving of possession, or any weight than that of the other.24 Where the evidence presented
person or persons claiming under them, for the restitution of by one side is insufficient to ascertain the claim, there is no
such possession, together with damages and costs. preponderance of evidence.25 In criminal cases in which the
quantum of evidence required is greater than in civil cases, the
In the present case, the Complaint filed before the trial court on testimony of only one witness -- if credible, straightforward, and
March 28, 1994, stated: worthy of belief -- is sufficient to convict.26 With more reason
then, Garcia’s testimony, if clear and positive, may be sufficient
to establish respondent’s claim.
"2. That [respondent] had been in lawful and peaceful
possession of a residential lot at Tulip Drive, Ecoland and
Subdivision covered by TCT T-82338 of the Registry of Deeds Under Section 1 of Rule 133 of the Rules of Court, among the
of Davao City being owner thereof, since June 11, 1981, until facts and circumstances to be considered by the court in
the day and incident in the following paragraph hereof. determining which of the presented evidence has superior
weight is the witnesses’ means and opportunity to know the
facts to which they testify.27
"3. That on or about December 1, 1993, [petitioner] by means
of strategy and stealth, unlawfully entered and occupied a
portion of said residential lot and constructed what is now The extent of such means and opportunity are determined by
known as the ‘Habagat Grill’, thereby illegally depriving the following considerations:
[respondent] of the possession of the premises." 16
"First, the ‘Actor Rule.’ This rule maintains that a person’s
Notably, petitioner alleged (1) prior possession, (2) deprivation recollection of his own acts and of the attendant circumstances
thereof by strategy and stealth, and (3) the date such unlawful is more definite and trustworthy than another person’s
deprivation started, which was less than one year from the recollection of it, especially if it was an act done in the
filing of the Complaint. Considering the presence in the performance of a duty, or if the other person’s testimony is little
Complaint of all the necessary allegations, 17 the trial court more than an expression of opinion or judgment. Apart from
evidently acquired jurisdiction over the subject matter of the comparative tenacity of memory, the actor usually knows better
case. than any one else what he did or did not do, and his testimony
is generally, but not always, entitled to superior weight on that
account. Thus, the execution and attestation of a will or other
Date of Entry legal document may be so far regarded as the act of the lawyer
who superintends the transactions and knows the formalities
Petitioner further contends that, as determined by the court of required by law, and his testimony to the circumstances will
origin and the regional trial court, respondent has not adduced generally outweigh that of a non-professional witness.
preponderance of evidence to prove that this case was filed
within the one-year prescriptive period.18 Petitioner presented "The ‘Actor Rule’ has been applied in a multitude of admiralty
the testimony of a certain Samuel Ruiz and offered the minutes cases and any other cases where a person’s testimony
of the hearings conducted by the Urban Planning and concerning his own conduct conflicts with the testimony of a
Economic Development (UPED) to prove that the construction non-participating observer or with inconclusive inferences from
of the Habagat Grill began in 1992.19 facts proved, especially where the ‘actor’ witness testifies to an
act which the duties of his employment required him to
Respondent counters that the CA properly relied on the perform. But it said that the testimony of one who evidently
testimony of the former’s real property manager, Bienamer speaks rather to his custom than to his acts on the particular
Garcia, as he had personal knowledge of the facts. 20 On the occasion will hardly suffice to put him in the category of those
other hand, the two trial courts allegedly relied on the hearings who are specially favored by the Actor Rule.
conducted by the UPED in resolving that petitioner had been in
possession of the property since 1992. Respondent avers that "Second, the witness who had the greater interest in noticing
those hearings referred to a restaurant located 330 meters and remembering the facts is to be believed in preference to
away, not to Habagat Grill.21 the one that had a slighter interest to observe or was wholly
indifferent. Interest has effect on the power of observation of
The determination of the date of entry into the subject lot is a witness. Thus, it has been held that it was not remarkable that
question of fact. This Court has held in a long line of cases that witnesses would not have observed traces of blood along the
the review of cases brought before it via Rule 45 of the Rules route through which the deceased was taken because said
of Court is limited to errors of law. Findings of fact by the CA witnesses had no reason to suspect that the crime was not
are conclusive except in a number of instances, one of which is committed in the place where the dead body was found.
when its factual findings are contrary to those of the courts Similarly, the failure of witnesses to notice whether or not there
below, as in the present case.22 were houses at the place where they say the accused maltreat
the offended party was attributed as due to the fact that their
The appellate court held that the minutes of the UPED hearing attention was concentrated to what they say, and they had no
pertained to matters relating to a different establishment, the interest in knowing whether or not there were houses in or
Kawayan Restaurant.23 Thus, the UPED minutes did not have around the place.
any material bearing on the resolution of the present case.
Consequently, the determination of the date of entry into the "Third, the witness who gives reasons for the accuracy of his
subject lot boils down to the appreciation of the testimonies of observations is preferred to him who merely states the fact to
Garcia and Ruiz. be so, without adverting to any circumstances showing that his
attention was particularly called to it. Thus, the testimony of the
127
crew of a vessel that their light on the night of a collision was We agree with respondent. "Judicial notice is the cognizance of
red, and nothing more, was easily overcome by testimony of certain facts which judges may properly take and act on
witnesses on the other vessel that the light was white, not red, without proof because they already know them."34 Its object is
and that fact was a matter of remark among them when the to save time, labor and expense in securing and introducing
light was observed. evidence on matters that are not ordinarily capable of dispute
or actually bona fide disputed, and the tenor of which can
"Fourth, the witness in a state of excitement, fear, or terror is safely be assumed from the tribunal’s general knowledge or
generally incapable of observing accurately. This is so from a slight search on its part.
because, if men perceive the most insignificant facts in the
most diverse ways, even when it is impossible that these facts Indeed, municipal courts may take judicial notice of the
should produce on the observer any emotion preventing him municipal ordinances in force in the municipality in which they
from observing with absolute calm, even much more will their sit.35 Such notice, however, is limited to what the law is and
impressions be diversified under circumstances calculated to what it states.36 As can be gleaned from its discussions, the
produce in the onlookers excitement, fear or terror. trial court took judicial notice of the existence of Presidential
Proclamation No. 20, which declared Times Beach a recreation
"Fifth, intoxication tends to impair accuracy both of observation center. The MTC also took judicial notice of the location of the
and memory of a witness."28 (Citations omitted) beach, which was from the shoreline to the "road towards the
shoreline." On the basis of these premises, the trial court
resolved that the lot on which petitioner’s restaurant was
Based on the foregoing criteria, the testimony of Garcia must located should necessarily be inside Times Beach, which was
be given greater weight, considering that it was his task -- as owned by the City of Davao. Hence, it was the City -- not
the real property manager of respondent -- to know about respondent -- that had a cause of action against petitioner. To
matters involving the latter’s properties. In contrast, it was not arrive at this conclusion, the MTC made its own estimate of the
explained how Ruiz could be deemed competent and credible location of the metes and bounds of the property mentioned by
in his testimony as to those matters. the law.37
The lower courts dismissed the testimony of Garcia -- The location of Habagat Grill cannot be resolved by merely
regardless of how clear, positive and straightforward it was -- taking judicial notice of Presidential Proclamation No. 20; such
solely on the ground that he was not a disinterested witness. location is precisely at the core of the dispute in this case.
True, he was an employee of respondent; relationship, Moreover, considering respondent’s allegation that the
however, will not by itself determine the true worth of one’s supposed lot covered by the Ordinance has been lost due to
testimony.29 The essential test is whether such testimony is inundation by the sea, we cannot fathom how the trial court
disencumbered, credible, and in accord with human could have known of the actual location of the metes and
experience.30 It cannot easily be dismissed by the mere bounds of the subject lot.
invocation of the witness’ relationship with respondent. In sum,
we have no reason to disagree with the CA’s evaluation that,
being credible, Garcia’s direct testimony was sufficient to Neither may the MTC take discretionary judicial notice under
establish respondent’s claim that petitioner had entered the Section 2 of Rule 129 of the Rules of Court, because the exact
premises on December 1, 1993. boundaries of the lot covered by that law are not a matter of
public knowledge capable of unquestionable demonstration.
Neither may these be known to judges because of their judicial
Second Issue: functions.
Cause of Action Hence, the CA was correct in disregarding the findings of the
trial courts, because they had erred in taking judicial notice of
Petitioner avers that no cause of action was alleged by the exact metes and bounds of the property. The appellate
respondent, as shown by the following circumstances: (1) the court aptly relied on the Report submitted by the survey team
latter’s property was not encroached upon by Habagat Grill, that had been constituted by the trial court, precisely for the
which had allegedly been constructed on a portion of land purpose of determining the location of Habagat Grill in relation
owned by the City Government of Davao;31 and (2) respondent to respondent’s lot.
failed to prove that its predecessor-in-interest had prior
possession of the property.32 Prior Possession
On the other hand, respondent argues that the trial court Finally, petitioner avers that respondent failed to prove that the
indiscriminately ignored the Report of the survey team that had latter’s predecessor-in-interest had prior possession of the
been constituted to determine the exact location of Habagat property.38 Conversely, respondent alleges that its predecessor
Grill. Respondent further contends that the trial court erred in was in prior physical possession of the property as the
taking judicial notice of the metes and bounds of the property registered owner thereof since June 11, 1981.39 Again, we rule
covered by Presidential Proclamation No. 20. 33 Although the for respondent.
lower court may take judicial notice of PD No. 20, it may not do
so in regard to the metes and bounds of Times Beach. Neither,
may it claim knowledge of the situational relation between the There is only one issue in ejectment proceedings: who is
land in question and Times Beach. entitled to physical or material possession of the premises; that
is, to possession de facto, not possession de jure? Issues as to
the right of possession or ownership are not involved in the
Location of the Property action; evidence thereon is not admissible, except only for the
purpose of determining the issue of possession.40
128
The two forms of ejectment suits -- forcible entry or unlawful LEA MER INDUSTRIES, INC., Petitioners,
detainer -- may be distinguished from each other mainly by the vs.
fact that in forcible entry, the plaintiffs must prove that they MALAYAN INSURANCE CO., INC.,* Respondent.
were in prior possession of the premises until they were
deprived thereof by the defendant; in unlawful detainer, the DECISION
plaintiff need not have been in prior physical possession. 41
PANGANIBAN, J.:
Spouses Benitez v. CA42 has held that possession can be
acquired not only by material occupation, but also by the fact
that a thing is subject to the action of one’s will or by the proper ommon carriers are bound to observe extraordinary diligence
acts and legal formalities established for acquiring such right. in their vigilance over the goods entrusted to them, as required
by the nature of their business and for reasons of public policy.
Consequently, the law presumes that common carriers are at
Possession can be acquired by juridical acts. "These are acts fault or negligent for any loss or damage to the goods that they
to which the law gives the force of acts of possession. transport. In the present case, the evidence submitted by
Examples of these are donations, succession, x x x execution petitioner to overcome this presumption was sorely insufficient.
and registration of public instruments, and the inscription of
possessory information titles."43 For one to be considered in
possession, one need not have actual or physical occupation 44 The Case
of every square inch of the property at all times. In the present
case, prior possession of the lot by respondent’s predecessor Before us is a Petition for Review1 under Rule 45 of the Rules
was sufficiently proven by evidence of the execution and of Court, assailing the October 9, 2002 Decision 2 and the
registration of public instruments and by the fact that the lot December 29, 2003 Resolution3 of the Court of Appeals (CA)
was subject to its will from then until December 1, 1993, when in CA-GR CV No. 66028. The challenged Decision disposed as
petitioner unlawfully entered the premises and deprived the follows:
former of possession thereof.
"WHEREFORE, the appeal is GRANTED. The December 7,
WHEREFORE, the Petition is DENIED and the challenged 1999 decision of the Regional Trial Court of Manila, Branch 42
Decision and Resolution AFFIRMED. Costs against petitioner. in Civil Case No. 92-63159 is hereby REVERSED and SET
ASIDE. [Petitioner] is ordered to pay the [herein respondent]
SO ORDERED. the value of the lost cargo in the amount of P565,000.00. Costs
against the [herein petitioner]."4
The Facts
129
Reversing the trial court, the CA held that the vessel was not because it offers to the public its business of transporting
seaworthy when it sailed for Manila. Thus, the loss of the cargo goods through its vessels.18
was occasioned by petitioner’s fault, not by a fortuitous event. 12
Thus, the Court corrects the trial court’s finding that petitioner
Hence, this recourse.13 became a private carrier when Vulcan chartered it.19 Charter
parties are classified as contracts of demise (or bareboat) and
The Issues affreightment, which are distinguished as follows:
Petitioner states the issues in this wise: "Under the demise or bareboat charter of the vessel, the
charterer will generally be considered as owner for the voyage
or service stipulated. The charterer mans the vessel with his
"A. Whether or not the survey report of the cargo surveyor, own people and becomes, in effect, the owner pro hac vice,
Jesus Cortez, who had not been presented as a witness of the subject to liability to others for damages caused by negligence.
said report during the trial of this case before the lower court To create a demise, the owner of a vessel must completely and
can be admitted in evidence to prove the alleged facts cited in exclusively relinquish possession, command and navigation
the said report. thereof to the charterer; anything short of such a complete
transfer is a contract of affreightment (time or voyage charter
"B. Whether or not the respondent, Court of Appeals, had party) or not a charter party at all."20
validly or legally reversed the finding of fact of the Regional
Trial Court which clearly and unequivocally held that the loss of The distinction is significant, because a demise or bareboat
the cargo subject of this case was caused by fortuitous event charter indicates a business undertaking that is private in
for which herein petitioner could not be held liable. character. 21 Consequently, the rights and obligations of the
parties to a contract of private carriage are governed principally
"C. Whether or not the respondent, Court of Appeals, had by their stipulations, not by the law on common carriers.22
committed serious error and grave abuse of discretion in
disregarding the testimony of the witness from the MARINA, The Contract in the present case was one of affreightment, as
Engr. Jacinto Lazo y Villegal, to the effect that the vessel ‘Judy shown by the fact that it was petitioner’s crew that manned the
VII’ was seaworthy at the time of incident and further in tugboat M/V Ayalit and controlled the barge Judy VII.23
disregarding the testimony of the PAG-ASA weather specialist, Necessarily, petitioner was a common carrier, and the pertinent
Ms. Rosa Barba y Saliente, to the effect that typhoon ‘Trining’ law governs the present factual circumstances.
did not hit Metro Manila or Palawan."14
Extraordinary Diligence Required
In the main, the issues are as follows: (1) whether petitioner is
liable for the loss of the cargo, and (2) whether the survey
report of Jesus Cortez is admissible in evidence. Common carriers are bound to observe extraordinary diligence
in their vigilance over the goods and the safety of the
passengers they transport, as required by the nature of their
The Court’s Ruling business and for reasons of public policy.24 Extraordinary
diligence requires rendering service with the greatest skill and
The Petition has no merit. foresight to avoid damage and destruction to the goods
entrusted for carriage and delivery.25
First Issue:
Common carriers are presumed to have been at fault or to
Liability for Loss of Cargo have acted negligently for loss or damage to the goods that
they have transported.26 This presumption can be rebutted only
by proof that they observed extraordinary diligence, or that the
Question of Fact loss or damage was occasioned by any of the following
causes:27
The resolution of the present case hinges on whether the loss
of the cargo was due to a fortuitous event. This issue involves "(1) Flood, storm, earthquake, lightning, or other natural
primarily a question of fact, notwithstanding petitioner’s claim disaster or calamity;
that it pertains only to a question of law. As a general rule,
questions of fact may not be raised in a petition for review. 15
The present case serves as an exception to this rule, because "(2) Act of the public enemy in war, whether international or
the factual findings of the appellate and the trial courts vary. 16 civil;
This Court meticulously reviewed the records, but found no
reason to reverse the CA. "(3) Act or omission of the shipper or owner of the goods;
Rule on Common Carriers "(4) The character of the goods or defects in the packing or in
the containers;
Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or "(5) Order or act of competent public authority."28
transporting passengers or goods, or both -- by land, water, or
air -- when this service is offered to the public for Rule on Fortuitous Events
compensation.17 Petitioner is clearly a common carrier,
130
Article 1174 of the Civil Code provides that "no person shall be xxxxxxxxx
responsible for a fortuitous event which could not be foreseen,
or which, though foreseen, was inevitable." Thus, if the loss or Atty. Baldovino, Jr.:
damage was due to such an event, a common carrier is
exempted from liability.
Your Honor, what I am asking [relates to the] action taken by
the officers and crew of tugboat Ayalit and barge Judy VII x x x
Jurisprudence defines the elements of a "fortuitous event" as to prevent the sinking of barge Judy VII?
follows: (a) the cause of the unforeseen and unexpected
occurrence, or the failure of the debtors to comply with their
obligations, must have been independent of human will; (b) the xxxxxxxxx
event that constituted the caso fortuito must have been
impossible to foresee or, if foreseeable, impossible to avoid; (c) Court:
the occurrence must have been such as to render it impossible
for the debtors to fulfill their obligation in a normal manner; and Mr. witness, did the captain of that tugboat give any instruction
(d) the obligor must have been free from any participation in on how to save the barge Judy VII?
the aggravation of the resulting injury to the creditor. 29
Joey Draper:
To excuse the common carrier fully of any liability, the
fortuitous event must have been the proximate and only cause
of the loss.30 Moreover, it should have exercised due diligence I can no longer remember sir, because that happened [a] long
to prevent or minimize the loss before, during and after the time ago."37
occurrence of the fortuitous event.31
Second, the alleged fortuitous event was not the sole and
Loss in the Instant Case proximate cause of the loss. There is a preponderance of
evidence that the barge was not seaworthy when it sailed for
Manila.38 Respondent was able to prove that, in the hull of the
There is no controversy regarding the loss of the cargo in the barge, there were holes that might have caused or aggravated
present case. As the common carrier, petitioner bore the the sinking.39 Because the presumption of negligence or fault
burden of proving that it had exercised extraordinary diligence applied to petitioner, it was incumbent upon it to show that
to avoid the loss, or that the loss had been occasioned by a there were no holes; or, if there were, that they did not
fortuitous event -- an exempting circumstance. aggravate the sinking.
It was precisely this circumstance that petitioner cited to Petitioner offered no evidence to rebut the existence of the
escape liability. Lea Mer claimed that the loss of the cargo was holes. Its witness, Domingo A. Luna, testified that the barge
due to the bad weather condition brought about by Typhoon was in "tip-top" or excellent condition,40 but that he had not
Trining.32 Evidence was presented to show that petitioner had personally inspected it when it left Palawan.41
not been informed of the incoming typhoon, and that the
Philippine Coast Guard had given it clearance to begin the
voyage.33 On October 25, 1991, the date on which the voyage The submission of the Philippine Coast Guard’s Certificate of
commenced and the barge sank, Typhoon Trining was Inspection of Judy VII, dated July 31, 1991, did not
allegedly far from Palawan, where the storm warning was only conclusively prove that the barge was seaworthy.42 The
"Signal No. 1."34 regularity of the issuance of the Certificate is disputably
presumed.43 It could be contradicted by competent evidence,
which respondent offered. Moreover, this evidence did not
The evidence presented by petitioner in support of its defense necessarily take into account the actual condition of
of fortuitous event was sorely insufficient. As required by the the vessel at the time of the commencement of the voyage.44
pertinent law, it was not enough for the common carrier to
show that there was an unforeseen or unexpected occurrence.
It had to show that it was free from any fault -- a fact it Second Issue:
miserably failed to prove.
Admissibility of the Survey Report
First, petitioner presented no evidence that it had attempted to
minimize or prevent the loss before, during or after the alleged Petitioner claims that the Survey Report45 prepared by Jesus
fortuitous event.35 Its witness, Joey A. Draper, testified that he Cortez, the cargo surveyor, should not have been admitted in
could no longer remember whether anything had been done to evidence. The Court partly agrees. Because he did not testify
minimize loss when water started entering the barge. 36 This during the trial,46 then the Report that he had prepared was
fact was confirmed during his cross-examination, as shown by hearsay and therefore inadmissible for the purpose of proving
the following brief exchange: the truth of its contents.
"Atty. Baldovino, Jr.: The Survey Report Not the Sole Evidence
Other than be[a]ching the barge Judy VII, were there other The facts reveal that Cortez’s Survey Report was used in the
precautionary measure[s] exercised by you and the crew of testimonies of respondent’s witnesses -- Charlie M. Soriano;
Judy VII so as to prevent the los[s] or sinking of barge Judy and Federico S. Manlapig, a cargo marine surveyor and the
VII? vice-president of Toplis and Harding Company.47 Soriano
testified that the Survey Report had been used in preparing the
131
final Adjustment Report conducted by their company. 48 The
final Report showed that the barge was not seaworthy because
of the existence of the holes. Manlapig testified that he had
prepared that Report after taking into account the findings of
the surveyor, as well as the pictures and the sketches of the
place where the sinking occurred.49 Evidently, the existence of
the holes was proved by the testimonies of the witnesses, not
merely by Cortez’ Survey Report.
132
SPO3 Frederick Dequito (SPO3 Dequito) and other police The accused who is detained is entitled to be credited in full
officers rushed to the crime scene and helped carry Alexander with the entire period of his preventive detention. The Jail
to an ambulance. SPO3 Dequito was able to ask Alexander Warden, Iloilo Rehabilitation Center is ordered to remit the said
who shot him to which he answered "Pato." "Pato" is an alias accused to the National Penitentiary at the earliest opportunity.
by which appellant is known.11
SO ORDERED.21
Alexander’s wife, Susan, who rushed to the hospital was also
told by Alexander that it was appellant who shot him. 12 The trial court regarded the victim’s dying declaration as the
Alexander died the following day.13 most telling evidence pointing to appellant as the assailant.22 It
appreciated the presence of treachery in qualifying the crime to
Dr. Tito D. Doromal, Philippine National Police medico-legal murder because the victim was unarmed and walking on his
officer, performed an autopsy on the body of Alexander. The way
autopsy report stated the cause of death to be hemorrhage
secondary to pellet wounds.14 Testifying on his report, Dr. home when he was suddenly and unexpectedly shot from
Doromal explained that Alexander died from a gunshot wound behind by appellant.23 The trial court ruled that appellant’s alibi
which penetrated the ribs and lacerated the right lobe of the and denial could not prevail over the positive testimonies of
liver, colon, stomach, duodenum, and right kidney. The credible witnesses.24 Moreover, it observed that appellant was
entrance wound was located at the middle-back portion of the not able to prove the impossibility of his presence at the crime
body. Seven (7) pellets were recovered on the muscle of the scene which could have proven his alibi.25
upper and middle abdominal wall.15
In view of the penalty of reclusion perpetua imposed on
The defense’s evidence consists of the testimonies of appellant appellant, the case was initially elevated to this Court for
himself and of his wife, Madoline, his stepdaughter, Franlin, review. However, pursuant to our ruling in People v. Mateo, 26
PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 the case was referred to the Court of Appeals.
Wilson Allona. Appellant interposed alibi as his main defense.
He claimed that Alexander, together with his daughter and
Sendin, had gone to his house on 24 April 1998 at around 6:00 The appellate court affirmed the trial court’s ruling but modified
p.m. where they were welcomed and offered snacks.16 They the award of moral damages from Thirty Thousand Pesos to
were having a conversation when a blackout occurred. Fifty Thousand Pesos.27 Hence, the instant appeal.
Alexander then asked permission to leave. After the visitors
had left, appellant ordered his stepdaughter Franlin to buy In a Resolution dated 16 July 2007, the Court required the
candle at the store across their house. Appellant and Madoline parties to simultaneously submit their respective supplemental
posted themselves at their doorway holding a flashlight to light briefs if they so desired.28 Both parties manifested that they
Franlin’s path. Upon Franlin’s return to the house, appellant would adopt their briefs filed before the appellate court.29
heard an explosion and he immediately closed the door. Later, Thereafter, the case was deemed submitted for decision.
the policemen
Appellant argues that the trial court erred in giving full credence
went to his house and told him that he was a suspect in the to the testimony of the prosecution's eyewitness, Michelle, as
shooting of Alexander and was then brought to the police well as the dying declaration of Alexander considering that the
station.17 The following day, he was subjected to paraffin test circumstances under which the crime was committed rendered
the result of which turned out to be negative.18 the identification of the gunman impossible.
Appellant’s testimony was corroborated by Madoline and This argument essentially challenges the credibility of the
Franlin. PO1 Javelora declared that when he asked Alexander witnesses, including the eyewitness, whose testimonies were
who shot him, the latter did not answer.19 Likewise, PO3 relied upon by the trial court in convicting appellant. Basic is
Sarmiento and Allona stated that when they went to the the principle that the findings of fact of a trial court, its
hospital to interrogate Alexander, the latter could not give a calibration of the testimonies of the witnesses and its
definite answer as to who shot him.20 assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded high
On 15 August 2000, the RTC found appellant guilty beyond respect, if not conclusive effect. This is because the
reasonable doubt of murder and sentenced him to suffer the
penalty of reclusion perpetua. The dispositive portion of the trial court has the unique opportunity to observe the demeanor
decision read: of a witness and is in the best position to discern whether they
are telling the truth. This rule holds true especially when the
WHEREFORE, premises considered, and in the light of the trial court's findings have been affirmed by the appellate
facts obtaining and the jurisprudence aforecited, judgement is court.30
hereby rendered finding the accused GUILTY beyond
reasonable doubt of the crime of MURDER, hereby sentencing Appellant’s authorship of the crime was proven by the positive
the said accused to the penalty of RECLUSION PERPETUA identification of an eyewitness and the victim’s dying
pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article declaration.
248 of the Revised Penal Code. The said accused is further
condemned to indemnify the surviving heirs of the deceased, The prosecution presented Michelle, who categorically
Alexander Parreño, the sum of P257,774.75 by way of actual identified appellant as the one who shot Alexander, viz:
damages; the amount of P30,000.00 by way of moral damages
and the sum of P50,000.00 by way of death compensation.
133
34
Q: While you and your father were walking towards diameter surrounding the periphery of the wound and
home, did you remember anything unusual that penetrating his internal organs.35
happened?
Significantly, the eyewitness’s positive identification of
A: Yes, Ma’am. appellant as the perpetrator of the crime is fully supported the
victim’s dying declaration.
Q: What was that?
A dying declaration is a statement made by the victim of
A: I heard an explosion. homicide, referring to the material facts which concern the
cause and circumstances of the killing and which is uttered
under a fixed belief that death is impending and is certain to
Q: Where were you in relation to your father when you follow immediately, or in a very short time, without an
heard that shot? opportunity of retraction and in the absence of all hopes of
recovery. In other words, it is a statement made by a person
A: I was in front of my Daddy and he was at my back. after a mortal wound has been inflicted, under a belief that
death is certain, stating the facts concerning the cause and
Q: You said you heard a shot, what did you do when circumstances surrounding his/her death.36
you heard a shot?
As an exception to the rule against hearsay evidence, a dying
A: When I heard the shot, I turned back and I saw declaration or ante mortem statement is evidence of the
Joemarie pointing to my Dad. highest order and is entitled to utmost credence since no
person aware of his impending death would make a careless
and false accusation.37 It is thus admissible to provide the
COURT: identity of the accused and the deceased, to show the cause of
death of the deceased, and the circumstances under which the
Q: What did he point towards your Dad? assault was made upon him. The reasons for its admissibility is
necessity and
A: Firearm.
trustworthiness. Necessity, because the declarant’s death
renders it impossible his taking the witness stand, and it often
PROSECUTOR PADILLA:
happens that there is no other equally satisfactory proof of the
crime; allowing it, therefore, prevents a failure of justice. And
Q: You said Joemarie was pointing a firearm to your trustworthiness, because the declaration is made in extremity,
father. Was it [a] long or short firearm? when the party is at the point of death and when every motive
to falsehood is silenced and the mind is induced by the most
A: About 11 inches. powerful considerations to speak the truth. The law considers
the point of death as a situation so solemn and awful as
creating an obligation equal to that which is imposed by an
Q: After you saw Joemarie pointing a firearm to your
oath administered in court.38
father, what happened next?
Q: You said your father moved towards you, what A: Yes, Ma’am.
happened next?
Q: Why, [sic] what did you observe?
A: I approached my father and cuddled him.
A: My father was supporting himself in order that
Q: What happened next? blood will not [ooze] from his body and his body will
not fall down.46
A: While I was cuddling my father he said, "Day, it
was Joemarie who shot me." SPO3 Dequito, who responded immediately to the
crime scene, corroborated the testimonies of the
Q: How many time he said he was shot? Alexander’s children, to wit:
A: Not once but about 10 times.45 Q: So, what did you do when you arrived at the crime
scene?
Shortly thereafter, Novie Mae arrived and was told by
Alexander that it was appellant who opened fire at A: We advised the group to carry Mr. Parreño to the
him: ambulance because the ambulance was on the way
and after our mobile arrived, the ambulance arrived
also [sic] so we carried Mr. Parreño to be brought to
Q: When you reached Confessor Street, what the hospital.
happened?
COURT:
A: I saw that my elder sister was assisting my father.
135
A: Yes, Your Honor. had he survived. Fourth, his dying declaration is offered in a
criminal prosecution for murder where he was the victim.
PROSECUTOR:
Other police officers were presented by the defense to refute
Q: Can you remember the exact words uttered by the the dying declaration.1âwphi1 PO1 Javelora alleged that he
victim when you asked him who shot him? happened to pass by the crime scene and saw a young girl
crying. The girl led him to her father who was sitting on the
roadside. He asked the victim who shot him but he did not get
A: He answered me that: I questioned him, "Who shot any reply.50 PO3 Allona and Sarmiento arrived at the hospital
you?" and he answered that it was Cerilla and I and questioned Alexander as to who shot him but the latter told
further asked him "The husband of Madoline" and he them, "I am not sure because it was dark." 51 These statements
answered "Yes, Alias "Pato", the husband of cannot be construed as a categorical statement of the victim
Madoline.47 denying knowledge as to the identity of his assailant. It can be
recalled that at the time Alexander was being questioned, he
Likewise, Alexander’s wife, Sonia, testified: was already being readied for surgery. At that point, he was
understandably no longer fit to respond to questions. Between
Q: You said from your house when you were told by these two seemingly conflicting testimonies, it is the positive
the girls that your husband was shot, what did you identification made by Alexander in his dying declaration which
do? must be sustained.
A: I looked for a taxi and proceeded to the hospital. Appellant insists that there was an inherent impossibility in
identifying the assailant with clarity since there was a power
blackout at the time of the commission of the crime and was
xxx then a moonless night.
Q: When you arrived at the hospital, where did you go The fact that the crime was committed during a blackout does
first? not cast doubt on Alexander’s and Michelle’s positive
identification of appellant. While the place of occurrence was
A: To my husband. dark, this did not prevent the Alexander or Michelle from
identifying the assailant, especially since the shot was
delivered at close range.
xxx
These statements comply with all the requisites of a dying Moreover, the prosecution witnesses were not shown to be
declaration. First, Alexander’s declaration pertains to the impelled by ill motive to testify falsely against appellant.
identity of the person who shot him. Second, the fatal quality Besides, Susan, Michelle and Novie Mae, being immediate
and extent of the injuries49 he suffered underscore the relatives of the deceased, would naturally be interested in
imminence of his death as his condition was so serious that his having the real culprit punished.53
demise occurred the following morning after a thirteen (13)-
hour operation. Third, he would have been competent to testify
136
The positive identification of appellant must necessarily prevail
over his alibi.54 It was not physically impossible for appellant to
have been present at the scene of the crime at the time of its
commission. The distance of his house, where he supposedly
was, from the locus criminis is only 120-150 meters, more or
less.55
137
Except for the Republic, there were no other oppositors to the Petitioner also argues that respondent failed to present
application. The Republic contended, among others, that incontrovertible evidence in the form of specific facts indicating
neither Hanover nor its predecessors-in-interest are in open, the nature and duration of the occupation of its predecessor-in-
continuous, exclusive and notorious possession and interest to prove that the latter has been in possession of the
occupation of the land in question since June 12, 1945 or prior subject lot under a bona fide claim of acquisition of ownership
thereto; the muniments of title, tax declarations and receipts of since June 12, 1945 or earlier.
tax payments attached to or alleged in the application do not
constitute competent and sufficient evidence of a bona fide The petition is meritorious.
acquisition of the lands applied for; Hanover is a private
corporation disqualified under the Constitution to hold alienable
lands of the public domain; the parcels of land applied for are As to the first assigned error, however, the Court is not
portions of the public domain belonging to the Republic and are persuaded by petitioner’s contention that the RTC did not
not subject to private appropriation. acquire jurisdiction over the case. It is true that in land
registration cases, the applicant must strictly comply with the
jurisdictional requirements. In the instant case, though, there is
The case was then called for trial and respondent proceeded no dispute that respondent complied with the requirements of
with the presentation of its evidence. The Republic was the law for the court to acquire jurisdiction over the case.
represented in the proceedings by officers from the Office of
the Solicitor General (OSG) and the Department of
Environment and Natural Resources (DENR). With respect to the setting of the initial hearing outside the 90-
day period set forth under Section 23 of P.D. 1529, the Court
agrees with the CA in ruling that the setting of the initial hearing
On August 7, 1997, the RTC rendered its Decision3 approving is the duty of the land registration court and not the applicant.
Hanover’s application for registration of the subject lot. It held Citing Republic v. Manna Properties, Inc.,5 this Court held in
that from the documentary and oral evidence presented by Republic v. San Lorenzo Development Corporation6 that:
Hanover, the trial court was convinced that Hanover and its
predecessors-in-interest had been in open, public, continuous,
notorious and peaceful possession, in the concept of an owner, The duty and the power to set the hearing date lie with the land
of the land applied for registration of title, and that it had registration court. After an applicant has filed his application,
registrable title thereto in accordance with Section 14 of P.D. the law requires the issuance of a court order setting the initial
1529. hearing date. The notice of initial hearing is a court document.
The notice of initial hearing is signed by the judge and copy of
the notice is mailed by the clerk of court to the LRA [Land
On appeal by the State, the judgment of the RTC was affirmed Registration Authority]. This involves a process to which the
by the CA via the presently assailed Decision and Resolution. party-applicant absolutely has no participation. x x x
138
Hence, on the issue of jurisdiction, the Court finds that the RTC It is true, as respondent argues, that an examination of these
did not commit any error in giving due course to respondent’s requisites involve delving into questions of fact which are not
application for registration. proper in a petition for review on certiorari. Factual findings of
the court a quo are generally binding on this Court, except for
The foregoing notwithstanding, the Court agrees with petitioner certain recognized exceptions,10 to wit:
on the more important issue that respondent failed to present
sufficient evidence to prove that it or its predecessors-in- (1) When the conclusion is a finding grounded entirely
interest possessed and occupied the subject property for the on speculation, surmises and conjectures;
period required by law.
(2) When the inference made is manifestly mistaken,
Section 14 (1) of P.D. 1529, as amended, provides: absurd or impossible;
SEC. 14. Who may apply. –The following persons may file in (3) Where there is a grave abuse of discretion;
the proper Court of First Instance an application for registration
of title to land, whether personally or through their duly (4) When the judgment is based on a
authorized representatives: misapprehension of facts;
(1) Those who by themselves or through their predecessors-in- (5) When the findings of fact are conflicting;
interest have been in open, continuous, exclusive and
notorious possession and occupation of alienable and
disposable lands of the public domain under a bona fide claim (6) When the Court of Appeals, in making its findings,
of ownership since June 12, 1945, or earlier.7 went beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee;
Likewise, Section 48 (b) of Commonwealth Act 141, as
amended by Section 4 of P.D. 1073, states:
(7) When the findings are contrary to those of the trial
Court;
Section 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any
such lands or an interest therein, but whose titles have not (8) When the findings of fact are conclusions without
been perfected or completed, may apply to the Court of First citation of specific evidence on which they are based;
Instance [now Regional Trial Court] of the province where the
land is located for confirmation of their claims and the issuance (9) When the facts set forth in the petition as well as in
of a certificate of title therefor, under the Land Registration Act, the petitioners’ main and reply briefs are not disputed
to wit: by the respondents; and
139
The pieces of documentary evidence submitted by respondent document or writing admitted as part of the testimony of a
neither show that its predecessor’s possession and occupation witness does not constitute proof of the facts stated therein.19
of the subject land is for the period or duration required by law. In the present case, Hanover’s President and General
The earliest date of the Tax Declarations presented in Manager, who identified the CENRO Certification, is a private
evidence by respondent is 1965, the others being 1973, 1980, individual. He was not the one who prepared the Certification.
1992 and 1993. Respondent failed to present any credible The government official who issued the Certification was not
explanation why the realty taxes due on the subject property presented before the RTC so that he could have testified
were only paid starting in 1965. While tax declarations are not regarding its contents. Hence, the RTC should not have
conclusive evidence of ownership, they constitute proof of accepted the contents of the Certification as proof of the facts
claim of ownership.13 In the present case, the payment of realty stated therein. The contents of the Certification are hearsay,
taxes starting 1965 gives rise to the presumption that because Hanover’s President and General Manager was
respondent’s predecessors-in-interest claimed ownership or incompetent to testify on the truth of the contents of such
possession of the subject lot only in that year. Certification. Even if the subject Certification is presumed duly
issued and admissible in evidence, it has no probative value in
Settled is the rule that the burden of proof in land registration establishing that the land is alienable and disposable.20
cases rests on the applicant who must show by clear, positive
and convincing evidence that his alleged possession and Moreover, the CENRO is not the official repository or legal
occupation of the land is of the nature and duration required by custodian of the issuances of the DENR Secretary declaring
law.14 Unfortunately, as petitioner contends, the pieces of the alienability and disposability of public lands. 21 Thus, the
evidence presented by respondent do not constitute the "well- CENRO Certification should have been accompanied by an
nigh incontrovertible" proof necessary in cases of this nature. official publication of the DENR Secretary’s issuance declaring
the land alienable and disposable.
Lastly, the Court notes that respondent failed to prove that the
subject lot had been declared alienable and disposable by the Respondent, however, failed to comply with the foregoing
DENR Secretary. requirements.
The well-entrenched rule is that all lands not appearing to be WHEREFORE, the petition is GRANTED. The May 6, 2005
clearly of private dominion presumably belong to the State. 15 Decision and March 30, 2006 Resolution of the Court of
The onus to overturn, by incontrovertible evidence, the Appeals in CA-G.R. CV No. 70077 and the August 7, 1997
presumption that the land subject of an application for Decision of the Regional Trial Court of Mandaue City, Branch
registration is alienable and disposable rests with the 56 in Land Registration Case No. N-281 are SET ASIDE.
applicant.16 Respondent Hanover Worldwide Trading Corporation’s
application for registration of Lot No. 4488 of Consolacion Cad-
In the present case, to prove the alienability and disposability 545-D (New), under Vs-072219-000396, Barrio Sacsac,
of the subject property, Hanover submitted a Certification Consolacion, Cebu, is DENIED.
issued by the Community Environment and Natural Resources
Offices (CENRO) attesting that "lot 4488, CAD-545-D, SO ORDERED.
containing an area of ONE HUNDRED THREE THOUSAND
THREE HUNDRED FIFTY (103,350) square meters, more or
less, situated at Sacsac, Consolacion, Cebu" was found to be
within "Alienable and Disposable Block-1, land classification
project no. 28, per map 2545 of Consolacion, Cebu." However,
this certification is not sufficient.
In the instant case, even the veracity of the facts stated in the
CENRO Certification was not confirmed as only the President
and General Manager of respondent corporation identified said
Certification submitted by the latter. It is settled that a
140