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WESTMONT INVESTMENT G.R. No.

194128

CORPORATION,

Petitioner, Present:

PERALTA, J., Acting Chairperson,

ABAD,

- versus - MENDOZA,

SERENO,  and

PERLAS-BERNABE, JJ.

AMOS P. FRANCIA, JR.,

CECILIA ZAMORA,

BENJAMIN FRANCIA, and

PEARLBANK SECURITIES, Promulgated:

INC.,

Respondents. December 7, 2011

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

DECISION
MENDOZA, J.:

At bench is a petition for review on certiorari under Rule 45 of the Rules of


Court assailing the (1) July 27, 2010 Decision[1] of the Court of Appeals (CA) in CA-
G.R. CV No. 84725, which affirmed with modification the September 27, 2004
Decision[2] of the Regional Trial Court, Branch 56, Makati City (RTC) in Civil Case
No. 01-507; and (2) its October 14, 2010 Resolution,[3] which denied the motion for
the reconsideration thereof.

THE FACTS:
On March 27, 2001, respondents Amos P. Francia, Jr., Cecilia Zamora and Benjamin
Francia (the Francias) filed a Complaint for Collection of Sum of Money and
Damages[4]arising from their investments against petitioner Westmont Investment
Corporation (Wincorp) and respondent Pearlbank Securities Inc. (Pearlbank) before
the RTC.

Wincorp and Pearlbank filed their separate motions to dismiss.[5] Both motions were
anchored on the ground that the complaint of the Francias failed to state a cause of
action.On July 16, 2001, after several exchanges of pleadings, the RTC issued an
order[6] dismissing the motions to dismiss of Wincorp and Pearlbank for lack of
merit.

Wincorp then filed its Answer,[7] while Pearlbank filed its Answer with
Counterclaim and Crossclaim (against Wincorp).[8]

The case was set for pre-trial but before pre-trial conference could be held, Wincorp
filed its Motion to Dismiss Crossclaim[9] of Pearlbank to which the latter filed an
opposition.[10] The RTC denied Wincorps motion to dismiss crossclaim.[11]

The pre-trial conference was later conducted after the parties had filed their
respective pre-trial briefs. The parties agreed on the following stipulation of facts,
as contained in the Pre-Trial Order[12] issued by the RTC on April 17, 2002:
1. The personal and juridical circumstances of the parties meaning,
the plaintiffs and both corporate defendants;

2. That plaintiffs caused the service of a demand letter on Pearl


Bank on February 13, 2001 marked as Exhibit E;

3. Plaintiffs do not have personal knowledge as to whether or not


Pearl Bank indeed borrowed the funds allegedly invested by the
plaintiff from Wincorp; and

4. That the alleged confirmation advices which indicate Pearl Bank


as alleged borrower of the funds allegedly invested by the plaintiffs
in Wincorp do not bear the signature or acknowledgment of Pearl
Bank. (Emphases supplied)

After several postponements requested by Wincorp, trial on the merits finally


ensued. The gist of the testimony of Amos Francia, Jr. (Amos) is as follows:

1. Sometime in 1999, he was enticed by Ms. Lalaine Alcaraz, the


bank manager of Westmont Bank, Meycauayan, Bulacan Branch, to
make an investment with Wincorp, the banks financial investment arm,
as it was offering interest rates that were 3% to 5% higher than regular
bank interest rates. Due to the promise of a good return of investment,
he was convinced to invest. He even invited his sister, Cecilia Zamora
and his brother, Benjamin Francia, to join him. Eventually, they placed
their investment in the amounts of ₱1,420,352.72 and ₱2,522,745.34
with Wincorp in consideration of a net interest rate of 11% over a 43-
day spread.Thereafter, Wincorp, through Westmont Bank, issued
Official Receipt Nos. 470844[13] and 470845,[14] both dated January 27,
2000, evidencing the said transactions.[15]

2. When the 43-day placement matured, the Francias wanted to


retire their investments but they were told that Wincorp had no funds.
Instead, Wincorp rolled-over their placements and issued Confirmation
Advices[16] extending their placements for another 34 days. The said
confirmation advices indicated the name of the borrower as Pearlbank.
The maturity values were ₱1,435,108.61 and ₱2,548,953.86 with a due
date of April 13, 2000.

3. On April 13, 2000, they again tried to get back the principal
amount they invested plus interest but, again, they were frustrated.[17]

4. Constrained, they demanded from Pearlbank[18] their


investments. There were several attempts to settle the case, but all
proved futile.

After the testimony of Amos Francia, Jr., the Francias filed their Formal Offer
of Evidence.[19] Pearlbank filed its Comment/Objection,[20] while Wincorp did not
file any comment or objection. After all the exhibits of the Francias were admitted
for the purposes they were offered, the Francias rested their case.

Thereafter, the case was set for the presentation of the defense evidence of
Wincorp. On March 7, 2003, three (3) days before the scheduled hearing, Wincorp
filed a written motion to postpone the hearing on even date, as its witness, Antonio
T. Ong, was unavailable because he had to attend a congressional hearing. Wincorps
substitute witness, Atty. Nemesio Briones, was likewise unavailable due to a
previous commitment in the Securities and Exchange Commission.

The RTC denied Wincorps Motion to Postpone and considered it to have


waived its right to present evidence.[21] The Motion for Reconsideration of Wincorp
was likewise denied.[22]

On August 14, 2003, Pearlbank filed its Demurrer to Evidence.[23] The RTC
granted the same in its Order[24] dated January 12, 2004. Hence, the complaint
against Pearlbank was dismissed, while the case was considered submitted for
decision insofar as Wincorp was concerned.

On September 27, 2004, the RTC rendered a decision[25] in favor of the Francias and
held Wincorp solely liable to them. The dispositive portion thereof reads:
WHEREFORE, judgment is rendered ordering defendant
Westmont Investment Corporation to pay the plaintiffs, the
following amounts:

1. ₱3,984,062.47 representing the aggregate amount of


investment placements made by plaintiffs, plus 11% per
annum by way of stipulated interest, to be counted
from 10 March 2000 until fully paid; and

2. 10% of the above-mentioned amount as and for


attorneys fees and costs of suit.

SO ORDERED.
Wincorp then filed a motion for reconsideration, but it was denied by the RTC in its
Order[26] dated November 10, 2004.

Not in conformity with the pronouncement of the RTC, Wincorp interposed an


appeal with the CA, alleging the following arguments:

I. THE REGIONAL TRIAL COURT ERRED WHEN IT HELD


THAT WINCORP AS AGENT OF PLAINTIFFS-APPELLEES WAS
LIABLE TO THE LATTER NOTWITHSTANDING THE CLEAR
WRITTEN AGREEMENT TO THE CONTRARY;

II. THE REGIONAL TRIAL COURT ALSO ERRED WHEN IT


HELD THAT PEARLBANK, THE ACTUAL BORROWER AND
RECIPIENT OF THE MONEY INVOLVED IS NOT LIABLE TO
THE PLAINTIFFS-APPELLEES; and

III. THE REGIONAL TRIAL COURT ERRED IN DISMISSING ALL


TOGETHER THE CROSS-CLAIM OF WINCORP AGAINST
PEARLBANK.[27]

The CA affirmed with modification the ruling of the RTC in its July 27,
2010 Decision, the decretal portion of which reads:

WHEREFORE, premises considered, the present Appeal


is DENIED. The Decision dated 27 September 2004 of the
Regional Trial Court, Branch 56, Makati City in Civil Case No. 01-
507 is hereby AFFIRMED WITH MODIFICATION of the awards.
Defendant-appellant Wincorp is hereby ordered to pay plaintiffs-
appellees the amounts of ₱3,984,062.47 plus 11% per annum by
way of stipulated interest to be computed from 13 April 2000 until
fully paid and ₱100,000.00 as attorneys fees and cost of suit.

SO ORDERED.

The CA explained:

After a careful and judicious scrutiny of the records of the present


case, together with the applicable laws and jurisprudence, this
Court finds defendant-appellant Wincorp solely liable to pay the
amount of ₱3,984,062.47 plus 11% interest per annum computed
from 10 March 2000 to plaintiffs-appellees.

Preliminarily, the Court will rule on the procedural issues raised to


know what pieces of evidence will be considered in this appeal.

Section 34, Rule 132 of the Rules on Evidence states that:

The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be
specified.

A formal offer is necessary because judges are mandated to rest


their findings of facts and their judgment only and strictly upon the
evidence offered by the parties at the trial.Its function is to enable
the trial judge to know the purpose or purposes for which the
proponent is presenting the evidence. On the other hand, this
allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court
will not be required to review documents not previously scrutinized
by the trial court. Evidence not formally offered during the trial can
not be used for or against a party litigant. Neither may it be taken
into account on appeal.

The rule on formal offer of evidence is not a trivial matter. Failure


to make a formal offer within a considerable period of time shall be
deemed a waiver to submit it.Consequently, any evidence that has
not been offered shall be excluded and rejected.

Prescinding therefrom, the very glaring conclusion is that all the


documents attached in the motion for reconsideration of the
decision of the trial court and all the documents attached in the
defendant-appellants brief filed by defendant-appellant
Wincorp cannot be given any probative weight or credit for the sole
reason that the said documents were not formally offered as evidence
in the trial court because to consider them at this stage will deny the
other parties the right to rebut them.

The arguments of defendant-appellant Wincorp that the plaintiffs-


appellees made an erroneous offer of evidence as the documents
were offered to prove what is contrary to its content and that they
made a violation of the parol evidence rule do not hold water.

It is basic in the rule of evidence that objection to evidence must be


made after the evidence is formally offered. In case of documentary
evidence, offer is made after all the witnesses of the party making
the offer have testified, specifying the purpose for which the
evidence is being offered. It is only at this time, and not at any
other, that objection to the documentary evidence may be made.

As to oral evidence, objection thereto must likewise be raised


at the earliest possible time, that is, after the objectionable question
is asked or after the answer is given if the objectionable issue
becomes apparent only after the answer was given.
xxx

In the case at bench, a perusal of the records shows that the


plaintiffs-appellees have sufficiently established their cause of
action by preponderance of evidence. The fact that on 27 January
2000, plaintiffs-appellees placed their investment in the amounts
of ₱1,420,352.72 and ₱2,522,754.34 with defendant-appellant
Wincorp to earn a net interest at the rate of 11% over a 43-day
period was distinctly proved by the testimony of plaintiff-appellee
Amos Francia, Jr. and supported by Official Receipt Nos. 470844
and 470845 issued by defendant-appellant Wincorp through
Westmont Bank. The facts that plaintiffs-appellees failed to get
back their investment after 43 days and that their investment was
rolled over for another 34 days were also established by their oral
evidence and confirmed by the Confirmation Advices issued by
defendant-appellant Wincorp, which indicate that their investment
already amounted to ₱1,435,108.61 and ₱2,548,953.86 upon its
maturity on 13 April 2000. Likewise, the fact that plaintiffs-
appellees investment was not returned to them until this date by
defendant-appellant Wincorp was proved by their evidence. To top
it all, defendant-appellant Wincorp never negated these established
facts because defendant-appellant Wincorps claim is that it
received the money of plaintiffs-appellees but it merely acted as an
agent of plaintiffs-appellees and that the actual borrower of
plaintiffs-appellees money is defendant-appellee PearlBank.
Hence, defendant-appellant Wincorp alleges that it should be the
latter who must be held liable to the plaintiffs-appellees.

However, the contract of agency and the fact that defendant-


appellee PearlBank actually received their money were never
proven. The records are bereft of any showing that defendant-
appellee PearlBank is the actual borrower of the money invested by
plaintiffs-appellees as defendant-appellant Wincorp never
presented any evidence to prove the same.

Moreover, the trial court did not err in dismissing defendant-


appellant Wincorps crossclaim as nothing in the records supports
its claim. And such was solely due to defendant-appellant Wincorp
because it failed to present any scintilla of evidence that would
implicate defendant-appellee PearlBank to the transactions
involved in this case. The fact that the name of defendant-appellee
PearlBank was printed in the Confirmation Advices as the actual
borrower does not automatically makes defendant-appellee
PearlBank liable to the plaintiffs-appellees as nothing therein
shows that defendant-appellee PearlBank adhered or
acknowledged that it is the actual borrower of the amount specified
therein.

Clearly, the plaintiffs-appellees were able to establish their cause of


action against defendant-appellant Wincorp, while the latter failed
to establish its cause of action against defendant-appellee
PearlBank.
Hence, in view of all the foregoing, the Court finds defendant-
appellant Wincorp solely liable to pay the amount of ₱3,984,062.47
representing the matured value of the plaintiffs-appellees
investment as of 13 April 2000 plus 11% interest per annum by way
of stipulated interest counted from maturity date (13 April 2000).

As to the award of attorneys fees, this Court finds that the


undeniable source of the present controversy is the failure of
defendant-appellant Wincorp to return the principal amount and
the interest of the investment money of plaintiffs-appellees, thus,
the latter was forced to engage the services of their counsel to
protect their right. It is elementary that when attorneys fees is
awarded, they are so adjudicated, because it is in the nature of
actual damages suffered by the party to whom it is awarded, as he
was constrained to engage the services of a counsel to represent him
for the protection of his interest. Thus, although the award of
attorneys fees to plaintiffs-appellees was warranted by the
circumstances obtained in this case, this Court finds it equitable to
reduce the same from 10% of the total award to a fixed amount
of ₱100,000.00.[28]

Wincorps Motion for Reconsideration was likewise denied by the CA in


its October 14, 2010 Resolution.[29]

Not in conformity, Wincorp seeks relief with this Court via this petition for
review alleging that −

PLAINTIFFS-RESPONDENTS HAVE NO CAUSE OF


ACTION AGAINST WINCORP AS THE EVIDENCE ON
RECORD SHOWS THAT THE ACTUAL BENEFICIARY OF
THE PROCEEDS OF THE LOAN TRANSACTIONS WAS
PEARLBANK

SUBSTANTIAL JUSTICE DICTATES THAT THE EVIDENCE


PROFERRED BY WINCORP SHOULD BE CONSIDERED TO
DETERMINE WHO, AMONG THE PARTIES, ARE LIABLE TO
PLAINTIFFS-RESPONDENTS[30]
ISSUE

The core issue in this case is whether or not the CA is correct in finding
Wincorp solely liable to pay the Francias the amount of ₱3,984,062.47 plus interest
of 11% per annum.

Quite clearly, the case at bench presents a factual issue.

As a rule, a petition for review under Rule 45 of the Rules of Court


covers only questions of law. Questions of fact are not reviewable and cannot be
passed upon by this Court in the exercise of its power to review. The distinction
between questions of law and questions of fact is established. A question of
law exists when the doubt or difference centers on what the law is on a certain state
of facts. A question of fact, on the other hand, exists if the doubt centers on the truth
or falsity of the alleged facts.[31] This being so, the findings of fact of the CA are
final and conclusive and this Court will not review them on appeal.

While it goes without saying that only questions of law can be raised in a
petition for review on certiorari under Rule 45, the same admits of exceptions,
namely: (1) when the findings are grounded entirely on speculations, surmises, or
conjectures; (2) when the inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is
based on misappreciation of facts; (5) when the findings of fact are conflicting; (6)
when in making its findings, the same are contrary to the admissions of both
appellant and appellee; (7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record.[32]
The Court finds that no cogent reason exists in this case to deviate from the
general rule.

Wincorp insists that the CA should have based its decision on the express terms,
stipulations, and agreements provided for in the documents offered by the Francias
as the legal relationship of the parties was clearly spelled out in the very documents
introduced by them which indicated that it merely brokered the loan transaction
between the Francias and Pearlbank.[33]

Wincorp would want the Court to rule that there was a contract of agency
between it and the Francias with the latter authorizing the former as their agent to
lend money to Pearlbank. According to Wincorp, the two Confirmation Advices
presented as evidence by the Francias and admitted by the court, were competent
proof that the recipient of the loan proceeds was Pearlbank.[34]

The Court is not persuaded.

In a contract of agency, a person binds himself to render some service or to do


something in representation or on behalf of another with the latters consent.[35] It is
said that the underlying principle of the contract of agency is to accomplish results
by using the services of others to do a great variety of things. Its aim is to extend the
personality of the principal or the party for whom another acts and from whom he
or she derives the authority to act. Its basis is representation.[36]

Significantly, the elements of the contract of agency are: (1) consent, express or
implied, of the parties to establish the relationship; (2) the object is the execution of
a juridical act in relation to a third person; (3) the agent acts as a representative and
not for himself; (4) the agent acts within the scope of his authority.[37]
In this case, the principal-agent relationship between the Francias and Wincorp was
not duly established by evidence. The records are bereft of any showing that
Wincorp merely brokered the loan transactions between the Francias and Pearlbank
and the latter was the actual recipient of the money invested by the former. Pearlbank
did not authorize Wincorp to borrow money for it. Neither was there a ratification,
expressly or impliedly, that it had authorized or consented to said transaction.

As to Pearlbank, records bear out that the Francias anchor their cause of action
against it merely on the strength of the subject Confirmation Advices bearing the
name PearlBank as the supposed borrower of their investments. Apparently, the
Francias ran after Pearlbank only after learning that Wincorp was reportedly
bankrupt.[38] The Francias were consistent in saying that they only dealt with
Wincorp and not with Pearlbank. It bears noting that even in their Complaint and
during the pre-trial conference, the Francias alleged that they did not have any
personal knowledge if Pearlbank was indeed the recipient/beneficiary of their
investments.

Although the subject Confirmation Advices indicate the name of Pearlbank as the
purported borrower of the said investments, said documents do not bear the signature
or acknowledgment of Pearlbank or any of its officers. This cannot prove the
position of Wincorp that it was Pearlbank which received and benefited from the
investments made by the Francias. There was not even a promissory note validly and
duly executed by Pearlbank which would in any way serve as evidence of the said
borrowing.

Another significant point which would support the stand of Pearlbank that it was not
the borrower of whatever funds supposedly invested by the Francias was the fact
that it initiated, filed and pursued several cases against Wincorp, questioning, among
others, the latters acts of naming it as borrower of funds from investors.[39]

It bears stressing too that all the documents attached by Wincorp to its pleadings
before the CA cannot be given any weight or evidentiary value for the sole reason
that, as correctly observed by the CA, these documents were not formally offered as
evidence in the trial court. To consider them now would deny the other parties the
right to examine and rebut them. Section 34, Rule 132 of the Rules of Court provides:

Section 34. Offer of evidence The court shall consider no evidence


which has not been formally offered. The purpose for which the
evidence is offered must be specified.

The offer of evidence is necessary because it is the duty of the court to rest its
findings of fact and its judgment only and strictly upon the evidence offered by the
parties. Unless and until admitted by the court in evidence for the purpose or
purposes for which such document is offered, the same is merely a scrap of paper
barren of probative weight.[40]

The Court cannot, likewise, disturb the findings of the RTC and the CA as to
the evidence presented by the Francias. It is elementary that objection to evidence
must be made after evidence is formally offered.[41] It appears that Wincorp was
given ample opportunity to file its Comment/Objection to the formal offer of
evidence of the Francias but it chose not to file any.

All told, the CA committed no reversible error in rendering the assailed July 27,
2010 Decision and in issuing the challenged October 14, 2010 Resolution.
WHEREFORE, the petition is DENIED.

SO ORDERED.
LEODEGARIO BAYANI, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of


Appeals in CA-G.R. CR No. 22861 affirming on appeal the Decision[2] of the
Regional Trial Court of Lucena City, Branch 59, in Criminal Case No. 93-135
convicting the accused therein, now the petitioner, for violation of Batas
Pambansa (B.P.) Blg. 22.
On February 9, 1993, Leodegario Bayani was charged with violation of B.P.
Blg. 22 in an Information which reads:

That on or about the 20th day of August 1992, in the Municipality of Candelaria,
Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there willfully, unlawfully and feloniously
issue and make out Check No. 054936 dated August 29, 1992, in the amount of
FIFTY-FIVE THOUSAND PESOS (P55,000.00) Philippine Currency, drawn against
the PSBank, Candelaria Branch, Candelaria, Quezon, payable to Cash and give the
said check to one Dolores Evangelista in exchange for cash although the said accused
knew fully well at the time of issuance of said check that he did not have sufficient
funds in or credit with the drawee bank for payment of said check in full upon
presentment; that upon presentation of said check to the bank for payment, the same
was dishonored and refused payment for the reason that the drawer thereof, the herein
accused, had no sufficient fund therein, and that despite due notice, said accused
failed to deposit the necessary amount to cover said check or to pay in full the amount
of said check, to the damage and prejudice of said Dolores Evangelista in the
aforesaid amount.

Contrary to law.[3]

The Case for the Prosecution

At about noon on August 20, 1992, Alicia Rubia arrived at the grocery store
of Dolores Evangelista in Candelaria, Quezon, and asked the latter to
rediscount Philippine Savings Bank (PSBank) Check No. 054936 in the amount
of P55,000.00. The check was drawn by Leodegario Bayani against his account
with the PSBank and postdated August 29, 1992.[4] Rubia told Evangelista that
Bayani asked her to rediscount the check for him because he needed the
money.[5] Considering that Rubia and Bayani were long-time customers at the
store and she knew Bayani to be a good man, Evangelista agreed to rediscount
the check.[6] After Rubia endorsed the check, Evangelista gave her the amount
of P55,000.00.[7] However, when Evangelista deposited the check in her
account with the Far East Bank & Trust Company on September 11, 1992, it
was dishonored by the drawee bank for the reason that on September 1, 1992,
Bayani closed his account with the PSBank.[8] The reason for the dishonor of
the check was stamped at its dorsal portion. As of August 27, 1992, the balance
of Bayanis account with the bank was P2,414.96.[9] Evangelista then informed
Rubia of the dishonor of the check and demanded the return of her P55,000.00.
Rubia replied that she was only requested by Bayani to have the check
rediscounted and advised Evangelista to see him. When Evangelista talked to
Bayani, she was told that Rubia borrowed the check from him.[10]
Thereafter, Evangelista, Rubia, Bayani and his wife, Aniceta, had a
conference in the office of Atty. Emmanuel Velasco, Evangelistas lawyer. Later,
in the Office of the Barangay Captain Nestor Baera, Evangelista showed Bayani
a photocopy of the dishonored check and demanded payment thereof. Bayani
and Aniceta, on one hand, and Rubia, on the other, pointed to each other and
denied liability thereon. Aniceta told Rubia that she should be the one to pay
since the P55,000.00 was with her, but the latter insisted that the said amount
was in payment of the pieces of jewelry Aniceta purchased from her.[11] Upon
Atty. Velascos prodding, Evangelista suggested Bayani and Rubio to
pay P25,000.00 each. Still, Bayani and Rubio pointed to the other as the one
solely liable for the amount of the check.[12] Rubia reminded Aniceta that she
was given the check as payment of the pieces of jewelry Aniceta bought from
her.

The Case for the Petitioner

Bayani testified that he was the proprietor of a funeral parlor in Candelaria,


Quezon. He maintained an account with the PSBank in Candelaria, Quezon,
and was issued a checkbook which was kept by his wife, Aniceta
Bayani. Sometime in 1992, he changed his residence. In the process, his wife
lost four (4) blank checks, one of which was Check No. 054936[13] which formed
part of the checks in the checkbook issued to him by the PSBank.[14] He did not
report the loss to the police authorities. He reported such loss to the bank after
Evangelista demanded the refund of the P55,000.00 from his wife.[15] He then
closed his account with the bank on September 11, 1992, but was informed that
he had closed his account much earlier.He denied ever receiving the amount
of P55,000.00 from Rubia.[16]
Bayani further testified that his wife discovered the loss of the checks when
he brought his wife to the office of Atty. Emmanuel Velasco.[17] He did not see
Evangelista in the office of the lawyer, and was only later informed by his wife
that she had a conference with Evangelista. His wife narrated that according to
Evangelista, Rubia had rediscounted a check he issued, which turned out to be
the check she (Aniceta) had lost. He was also told that Evangelista had
demanded the refund of the amount of the check.[18] He later tried to contact
Rubia but failed. He finally testified that he could not recall having affixed his
signature on the check.[19]
Aniceta Bayani corroborated the testimony of her husband. She testified
that she was invited to go to the office of Atty. Velasco where she, Rubia and
Evangelista had a conference. It was only then that she met Evangelista. Rubia
admitted that she rediscounted the complainants check with Evangelista. When
Evangelista asked her to pay the amount of the check, she asked that the check
be shown to her, but Evangelista refused to do so. She further testified that her
husband was not with her and was in their office at the time.
At the conclusion of the trial, the court rendered judgment finding Bayani
guilty beyond reasonable doubt of violation of Section 1 of B.P. Blg. 22. The
decretal portion of the decision reads:

WHEREFORE, premises considered, the Court finds the accused Leodegario Bayani
guilty beyond reasonable doubt of violation of Section 1, Batas Pambansa Bilang 22
and hereby sentences him to suffer an imprisonment of ONE (1) YEAR, or to pay a
fine of ONE HUNDRED TEN THOUSAND PESOS (P110,000.00), to pay to
complaining witness Dolores Evangelista the sum of FIFTY-FIVE THOUSAND
PESOS (P55,000.00), the value of the check and to pay the costs.

SO ORDERED.[20]

On appeal, the petitioner averred that the prosecution failed to adduce


evidence that he affixed his signature on the check, or received from Rubia the
amount of P55,000.00, thus negating his guilt of the crime charged.
The petitioner asserts that even Teresita Macabulag, the bank manager of
PSB who authenticated his specimen signatures on the signature card he
submitted upon opening his account with the bank, failed to testify that the
signature on the check was his genuine signature.
On January 30, 2002, the Court of Appeals rendered judgment[21] affirming
the decision of the RTC with modification as to the penalty imposed on the
petitioner.
The petitioner asserts in the petition at bar that

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING


WITH MODIFICATION THE CONVICTION OF PETITIONER BY THE TRIAL
COURT FOR ALLEGED VIOLATION OF BATAS PAMBANSA BLG. 22
NOTWITHSTANDING THAT THE PROSECUTION MISERABLY FAILED TO
PROVE THAT THE CHECK WAS ISSUED FOR A VALUABLE
CONSIDERATION.[22]

The petitioner contends that the prosecution failed to prove all the essential
elements of the crime of violation of Section 1, B.P. Blg. 22. He asserts that the
prosecution failed to prove that he issued the check. He avers that even
assuming that he issued the check, the prosecution failed to prove that it was
issued for valuable consideration, and that he received the amount
of P55,000.00 from Rubia. Hence, in light of the ruling of this Court in Magno
vs. Court of Appeals,[23] he is entitled to an acquittal on such grounds.
The petitioner further contends that Evangelistas testimony, that Rubia told
her that it was the petitioner who asked her to have the check rediscounted, is
hearsay and, as such, even if he did not object thereto is inadmissible in
evidence against him. He avers that the prosecution failed to present Rubia as
a witness, depriving him of his right to cross-examine her. He contends that any
declaration made by Rubia to Evangelista is inadmissible in evidence against
him.
The petition is denied.
We agree with the submission of the petitioner that Evangelistas testimony,
that Rubia told her that the petitioner requested that the subject check be
rediscounted, is hearsay.Evangelista had no personal knowledge of such
request of the petitioner to Rubia. Neither is the information relayed by Rubia
to Evangelista as to the petitioners request admissible in evidence against the
latter, because the prosecution failed to present Rubia as a witness, thus,
depriving the petitioner of his right of cross-examination.
However, the evidence belies the petitioners assertion that the prosecution
failed to adduce evidence that he issued the subject check. Evangelista testified
that when she talked to the petitioner upon Rubias suggestion, the petitioner
admitted that he gave the check to Rubia, but claimed that the latter borrowed
the check from him.
Q When this check in question was returned to you because of the closed account, what
did you do, if you did anything?
A I talked to Alicia Rubia, Sir.
Q And what did Alicia Rubia tell you in connection with the check in question?
A Alicia Rubia told me that she was just requested by Leodegario Bayani, Sir.
Q And what else did she tell you?
A She advised me to go to Leodegario Bayani, Sir.
Q Did you go to Leodegario Bayani as per instruction of Alicia Rubia?
A Yes, Sir.
Q And what did Leodegario Bayani tell you in connection with this check?
A He told me that Alicia Rubia borrowed the check from him, Sir.[24]
Evangelista testified that she showed to the petitioner and his wife, Aniceta,
a photocopy of the subject check in the office of Atty. Velasco, where they
admitted to her that they owned the check:
ATTY. ALZAGA (TO WITNESS)
Q When you shown (sic) the check to Leodegario Bayani and his wife in the law office
of Atty. Velasco, what did they tell you?
ATTY. VELASCO:
Misleading. The question is misleading because according to the question, Your
Honor, he had shown the check but that was not the testimony. The testimony was the
xerox copy of the check was the one shown.
ATTY. ALZAGA
The xerox copy of the check.
COURT
As modified, answer the question.
WITNESS
A They told me they owned the check but they were pointing to each other as to who will
pay the amount, Sir.[25]

The petitioner cannot escape criminal liability by denying that he received


the amount of P55,000.00 from Rubia after he issued the check to her. As we
ruled in Lozano vs. Martinez:[26]

The gravamen of the offense punished by BP 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment. It is
not the non-payment of an obligation which the law punishes. The law is not intended
or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and putting them in
circulation. Because of its deleterious effects on the public interest, the practice is
proscribed by the law. The law punishes the act not as an offense against property, but
an offense against public order.[27]
The evidence on record shows that Evangelista rediscounted the check and
gave P55,000.00 to Rubia after the latter endorsed the same. As such,
Evangelista is a holder of the check in due course.[28] Under Section 28 of the
Negotiable Instruments Law (NIL), absence or failure of consideration is a
matter of defense only as against any person not a holder in due course, thus:

SECTION 28. Effect of want of consideration. Absence or failure of consideration is a


matter of defense as against any person not a holder in due course; and partial failure
of consideration is a defense pro tanto, whether the failure is an ascertained and
liquidated amount or otherwise.

Moreover, Section 24 of the NIL provides the presumption of


consideration, viz:

SECTION 24. Presumption of consideration. Every negotiable instrument is


deemed prima facie to have been issued for a valuable consideration; and every
person whose signature appears thereon to have become a party thereto for value.

Such presumption cannot be overcome by the petitioners bare denial of


receipt of the amount of P55,000.00 from Rubia.
The petitioner cannot, likewise, seek refuge in the ruling of this Court
in Magno vs. Court of Appeals[29] because the facts and issues raised therein
are substantially different from those extant in this case. Indeed, the Court ruled
in the said case that:

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was
she who accommodated petitioners request for Joey Gomez, to source out the needed
funds for the warranty deposit. Thus, it unfolds the kind of transaction that is shrouded
with mystery, gimmickry and doubtful legality. It is in simple language, a scheme
whereby Mrs. Teng as the supplier of the equipment in the name of her corporation,
Mancor, would be able to sell or lease its goods as in this case, and at the same time,
privately financing those who desperately need petty accommodations as this
one. This modus operandihas in so many instances victimized unsuspecting
businessmen, who likewise need protection from the law, by availing of the
deceptively called warranty deposit not realizing that they also fall prey to leasing
equipment under the guise of lease-purchase agreement when it is a scheme designed
to skim off business clients.[30]

Equally futile is the petitioners contention that the prosecution failed to prove
the crime charged. For the accused to be guilty of violation of Section 1 of B.P.
Blg. 22, the prosecution is mandated to prove the essential elements thereof,
to wit:

1. That a person makes or draws and issues any check.

2. That the check is made or drawn and issued to apply on account or for value.

3. That the person who makes or draws and issues the check knows at the time of
issue that he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment.

4. That the check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit, or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.[31]

In this case, the prosecution adduced documentary evidence that when the
petitioner issued the subject check on or about August 20, 1992, the balance of
his account with the drawee bank was only P2,414.96. During the conference
in the office of Atty. Emmanuel Velasco, Evangelista showed to the petitioner
and his wife a photocopy of the subject check, with the notation at its dorsal
portion that it was dishonored for the reason account closed. Despite
Evangelistas demands, the petitioner refused to pay the amount of the check
and, with his wife, pointed to Rubia as the one liable for the amount. The
collective evidence of the prosecution points to the fact that at the time the
petitioner drew and issued the check, he knew that the residue of the funds in
his account with the drawee bank was insufficient to pay the amount of the
check.
IN LIGHT OF ALL THE FOREOING, the petition is DENIED DUE COURSE.
The decision of the Court of Appeals is AFFIRMED.
No costs.
SO ORDERED.
G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national


spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âw phi 1.nêt
This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner


Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal
We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'
It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.
III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES


TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former


President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended


their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of


national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is


divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to


unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO


Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S


NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate


Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true


statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of


Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.


Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO


Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President


Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S


NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate


Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS


OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.


President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
G.R. No. 149576 August 8, 2006

REPUBLIC OF THE PHILIPPINES, represented by the Land Registration Authority, Petitioner,


vs.
KENRICK DEVELOPMENT CORPORATION, Respondent.

DECISION

CORONA, J.:

The Republic of the Philippines assails the May 31, 2001 decision 1 and August 20, 2001 resolution
of the Court of Appeals in CA-G.R. SP No. 52948 in this petition for review under Rule 45 of the
Rules of Court.

This case stemmed from the construction by respondent Kenrick Development Corporation of a
concrete perimeter fence around some parcels of land located behind the Civil Aviation Training
Center of the Air Transportation Office (ATO) in 1996. As a result, the ATO was dispossessed of
some 30,228 square meters of prime land. Respondent justified its action with a claim of ownership
over the property. It presented Transfer Certificate of Title (TCT) Nos. 135604, 135605 and 135606
issued in its name and which allegedly originated from TCT No. 17508 registered in the name of one
Alfonso Concepcion.

ATO verified the authenticity of respondent’s titles with the Land Registration Authority (LRA). On
May 17, 1996, Atty. Jose Loriega, head of the Land Title Verification Task Force of the LRA,
submitted his report. The Registrar of Deeds of Pasay City had no record of TCT No. 17508 and its
ascendant title, TCT No. 5450. The land allegedly covered by respondent’s titles was also found to
be within Villamor Air Base (headquarters of the Philippine Air Force) in Pasay City.

By virtue of the report, the Office of the Solicitor General (OSG), on September 3, 1996, filed a
complaint for revocation, annulment and cancellation of certificates of title in behalf of the Republic
of the Philippines (as represented by the LRA) against respondent and Alfonso Concepcion. It was
raffled to Branch 114 of the Regional Trial Court of Pasay City where it was docketed as Civil Case
No. 96-1144.

On December 5, 1996, respondent filed its answer which was purportedly signed by Atty. Onofre
Garlitos, Jr. as counsel for respondent.

Since Alfonso Concepcion could not be located and served with summons, the trial court ordered the
issuance of an alias summons by publication against him on February 19, 1997.

The case was thereafter punctuated by various incidents relative to modes of discovery, pre-trial,
postponements or continuances, motions to dismiss, motions to declare defendants in default and
other procedural matters.

During the pendency of the case, the Senate Blue Ribbon Committee and Committee on Justice and
Human Rights conducted a hearing in aid of legislation on the matter of land registration and titling.
In particular, the legislative investigation looked into the issuance of fake titles and focused on how
respondent was able to acquire TCT Nos. 135604, 135605 and 135606.

During the congressional hearing held on November 26, 1998, one of those summoned was Atty.
Garlitos, respondent’s former counsel. He testified that he prepared respondent’s answer and
transmitted an unsigned draft to respondent’s president, Mr. Victor Ong. The signature appearing
above his name was not his. He authorized no one to sign in his behalf either. And he did not know
who finally signed it.

With Atty. Garlitos’ revelation, the Republic promptly filed an urgent motion on December 3, 1998 to
declare respondent in default, 2 predicated on its failure to file a valid answer. The Republic argued
that, since the person who signed the answer was neither authorized by Atty. Garlitos nor even
known to him, the answer was effectively an unsigned pleading. Pursuant to Section 3, Rule 7 of the
Rules of Court, 3 it was a mere scrap of paper and produced no legal effect.

On February 19, 1999, the trial court issued a resolution granting the Republic’s motion. 4 It found
respondent’s answer to be sham and false and intended to defeat the purpose of the rules. The trial
court ordered the answer stricken from the records, declared respondent in default and allowed the
Republic to present its evidence ex parte.

The Republic presented its evidence ex parte, after which it rested its case and formally offered its
evidence.

Meanwhile, respondent sought reconsideration of the February 19, 1999 resolution but the trial court
denied it.

Aggrieved, respondent elevated the matter to the Court of Appeals via a petition for
certiorari 5 seeking to set aside the February 19, 1999 resolution of the trial court. Respondent
contended that the trial court erred in declaring it in default for failure to file a valid and timely
answer.

On May 31, 2001, the Court of Appeals rendered the assailed decision. It found Atty. Garlitos’
statements in the legislative hearing to be unreliable since they were not subjected to cross-
examination. The appellate court also scrutinized Atty. Garlitos’ acts after the filing of the
answer 6 and concluded that he assented to the signing of the answer by somebody in his stead.
This supposedly cured whatever defect the answer may have had. Hence, the appellate court
granted respondent’s petition for certiorari. It directed the lifting of the order of default against
respondent and ordered the trial court to proceed to trial with dispatch. The Republic moved for
reconsideration but it was denied. Thus, this petition.

Did the Court of Appeals err in reversing the trial court’s order which declared respondent in default
for its failure to file a valid answer? Yes, it did.

A party may, by his words or conduct, voluntarily adopt or ratify another’s statement. 7 Where it
appears that a party clearly and unambiguously assented to or adopted the statements of another,
evidence of those statements is admissible against him. 8 This is the essence of the principle of
adoptive admission.

An adoptive admission is a party’s reaction to a statement or action by another person when it is


reasonable to treat the party’s reaction as an admission of something stated or implied by the other
person. 9 By adoptive admission, a third person’s statement becomes the admission of the party
embracing or espousing it. Adoptive admission may occur when a party:

(a) expressly agrees to or concurs in an oral statement made by another; 10

(b) hears a statement and later on essentially repeats it; 11


(c) utters an acceptance or builds upon the assertion of another; 12

(d) replies by way of rebuttal to some specific points raised by another but ignores further points
which he or she has heard the other make 13 or

(e) reads and signs a written statement made by another. 14

Here, respondent accepted the pronouncements of Atty. Garlitos and built its case on them. At no
instance did it ever deny or contradict its former counsel’s statements. It went to great lengths to
explain Atty. Garlitos’ testimony as well as its implications, as follows:

1. While Atty. Garlitos denied signing the answer, the fact was that the answer was signed. Hence,
the pleading could not be considered invalid for being an unsigned pleading. The fact that the person
who signed it was neither known to Atty. Garlitos nor specifically authorized by him was immaterial.
The important thing was that the answer bore a signature.

2. While the Rules of Court requires that a pleading must be signed by the party or his counsel, it
does not prohibit a counsel from giving a general authority for any person to sign the answer for him
which was what Atty. Garlitos did. The person who actually signed the pleading was of no moment
as long as counsel knew that it would be signed by another. This was similar to addressing an
authorization letter "to whom it may concern" such that any person could act on it even if he or she
was not known beforehand.

3. Atty. Garlitos testified that he prepared the answer; he never disowned its contents and he
resumed acting as counsel for respondent subsequent to its filing. These circumstances show that
Atty. Garlitos conformed to or ratified the signing of the answer by another.

Respondent repeated these statements of Atty. Garlitos in its motion for reconsideration of the trial
court’s February 19, 1999 resolution. And again in the petition it filed in the Court of Appeals as well
as in the comment 15 and memorandum it submitted to this Court.

Evidently, respondent completely adopted Atty. Garlitos’ statements as its own. Respondent’s
adoptive admission constituted a judicial admission which was conclusive on it.

Contrary to respondent’s position, a signed pleading is one that is signed either by the party himself
or his counsel. Section 3, Rule 7 is clear on this matter. It requires that a pleading must be signed by
the party or counsel representing him.

Therefore, only the signature of either the party himself or his counsel operates to validly convert a
pleading from one that is unsigned to one that is signed.

Counsel’s authority and duty to sign a pleading are personal to him. He may not delegate it to just
any person.

The signature of counsel constitutes an assurance by him that he has read the pleading; that, to the
best of his knowledge, information and belief, there is a good ground to support it; and that it is not
interposed for delay. 16Under the Rules of Court, it is counsel alone, by affixing his signature, who
can certify to these matters.
The preparation and signing of a pleading constitute legal work involving practice of law which is
reserved exclusively for the members of the legal profession. Counsel may delegate the signing of a
pleading to another lawyer 17 but cannot do so

in favor of one who is not. The Code of Professional Responsibility provides:

Rule 9.01 ― A lawyer shall not delegate to any unqualified person the performance of any task
which by law may only be performed by a member of the Bar in good standing.

Moreover, a signature by agents of a lawyer amounts to signing by unqualified persons, 18 something


the law strongly proscribes.

Therefore, the blanket authority respondent claims Atty. Garlitos entrusted to just anyone was void.
Any act taken pursuant to that authority was likewise void. There was no way it could have been
cured or ratified by Atty. Garlitos’ subsequent acts.

Moreover, the transcript of the November 26, 1998 Senate hearing shows that Atty. Garlitos
consented to the signing of the answer by another "as long as it conformed to his draft." We give no
value whatsoever to such self-serving statement.

No doubt, Atty. Garlitos could not have validly given blanket authority for just anyone to sign the
answer. The trial court correctly ruled that respondent’s answer was invalid and of no legal effect as
it was an unsigned pleading. Respondent was properly declared in default and the Republic was
rightly allowed to present evidence ex parte.

Respondent insists on the liberal application of the rules. It maintains that even if it were true that its
answer was supposedly an unsigned pleading, the defect was a mere technicality that could be set
aside.

Procedural requirements which have often been disparagingly labeled as mere technicalities have
their own valid raison d’ etre in the orderly administration of justice. To summarily brush them aside
may result in arbitrariness and injustice. 19

The Court’s pronouncement in Garbo v. Court of Appeals 20 is relevant:

Procedural rules are [tools] designed to facilitate the adjudication of cases. Courts and litigants alike
are thus [enjoined] to abide strictly by the rules. And while the Court, in some instances, allows a
relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for
erring litigants to violate the rules with impunity. The liberality in the interpretation and application of
the rules applies only in proper cases and under justifiable causes and circumstances. While it is
true that litigation is not a game of technicalities, it is equally true that every case must be
prosecuted in accordance with the prescribed procedure to insure an orderly and speedy
administration of justice.

Like all rules, procedural rules should be followed except only when, for the most persuasive of
reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree
of his thoughtlessness in not complying with the prescribed procedure. 21 In this case, respondent
failed to show any persuasive reason why it should be exempted from strictly abiding by the rules.

As a final note, the Court cannot close its eyes to the acts committed by Atty. Garlitos in violation of
the ethics of the legal profession. Thus, he should be made to account for his possible misconduct.
WHEREFORE, the petition is hereby GRANTED. The May 31, 2001 decision and August 20, 2001
resolution of the Court of Appeals in CA-G.R. SP No. 52948 are REVERSED and SET ASIDE and
the February 19, 1999 resolution of the Regional Trial Court of Pasay City, Branch 114 declaring
respondent in default is hereby REINSTATED.

Let a copy of this decision be furnished the Commission on Bar Discipline of the Integrated Bar of
the Philippines for the commencement of disbarment proceedings against Atty. Onofre Garlitos, Jr.
for his possible unprofessional conduct not befitting his position as an officer of the court.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, appellee, vs. ISAGANI GUITTAP y
PENGSON (Acquitted), WILFREDO MORELOS y CRUZ
(Acquitted), CESAR OSABEL @ DANILO MURILLO @ DANNY @
SONNY VISAYA @ BENJIE CANETE, ARIEL DADOR y DE CHAVEZ
(Discharge), DECENA MASINAG VDA. DE RAMOS, LUISITO
GUILLING @ LUISITO (Acquitted), and JOHN DOE @
PURCINO, accused.
DECENA MASINAG VDA. DE RAMOS, appellant.

DECISION
YNARES-SANTIAGO, J.:

Appellant Decena Masinag Vda. de Ramos assails the decision of the [1]

Regional Trial Court of Lucena City, Branch 60, in Criminal Case No. 92-387,
finding her and accused Cesar Osabel guilty beyond reasonable doubt of the
crime of Robbery with Homicide and sentencing each of them to suffer the
penalty of reclusion perpetua, with all the accessory penalties provided by law,
and to indemnify the heirs of the victims the amounts of P100,000.00 as civil
indemnity and P67,800.00 as actual damages.
On September 1, 1992, an Amended Information for Robbery with Double
Homicide was filed against appellant Masinag, Isagani Guittap y Pengson,
Wilfredo Morelos y Cruz, Cesar Osabel, Ariel Dador y De Chavez, Luisito
[2]

Guilling and John Doe @ Purcino. The accusatory portion of the information
reads:

That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
conspiring and confederating with one another, armed with bladed weapons, by means
of violence, and with intent to gain, did then and there willfully, unlawfully and
feloniously take, steal and carry away certain personal items, to wit:

one (1) solid gold ring valued at P8,000.00


one (1) diamond ring valued at P40,000.00
one (1) necklace with pendant valued at P2,000.00
cash money in the amount of P4,500.00
one (1) samsonite bag valued at P650.00
one (1) .22 Cal. Squibbman with SN 64130 valued at P5,000.00
one (1) pair of sandal valued at P650.00
one (1) music mate (karaoke) valued at P5,000.00
one (1) jacket (adidas) valued at P1,000.00; and
one (1) pair of shoes valued at P1,000.00

with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael
and Lionela Caringal, without the consent and against the will of the latter, to the
[3]

damage and prejudice of the aforementioned offended parties in the aforestated sum
of P67,800.00, Philippine Currency, and, on the same occasion of such robbery, the
said accused, conspiring and confederating with one another, armed with the same
bladed weapons, taking advantage of superior strength, and employing means to
weaken the defense or of means or persons to insure or afford impunity, and with
intent to kill, did then and there willfully, unlawfully and feloniously stab both of said
spouses Romualdo Jael and Lionela Caringal thereby inflicting upon the latter several
fatal wounds which directly caused the death of the aforenamed spouses.

Contrary to law. [4]

Upon arraignment, appellant Masinag pleaded not guilty. Trial on the merits
thereafter ensued. Accused Ariel Dador was discharged as a state witness
while accused Purcino remained at large.
On February 15, 2000, the trial court rendered its decision, the dispositive
portion of which states:

WHEREFORE, premises considered, this court finds Cesar Osabel and Decena
Masinag GUILTY beyond reasonable doubt of the crime of robbery with homicide
and they are sentenced to RECLUSION PERPETUA with all the accessory penalties
provided by law. For insufficiency of evidence, the accused Isagani Guittap, Wilfrido
Morelos and Luisito Guilling are hereby ACQUITTED.

The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the
heirs of the deceased Romualdo Jael and Leonila Caringal Jael in the amount of
(P100,000.00) One Hundred Thousand Pesos plus actual damages of (P67,800.00)
Sixty Thousand and Eight Hundred Pesos, Philippine Currency.

SO ORDERED. [5]

During the trial, state witness Ariel Dador testified that in the evening of July
15, 1992, Cesar Osabel asked him and a certain Purcino to go with him to see
appellant Masinag at her house in Isabang, Lucena City. When they got there,
Osabel and Masinag entered a room while Dador and Purcino waited outside
the house. On their way home, Osabel explained to Dador and Purcino that he
and Masinag planned to rob the spouses Romualdo and Leonila Jael. He
further told them that according to Masinag, the spouses were old and rich, and
they were easy to rob because only their daughter lived with them in their house.
The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the
house of the Jael spouses to execute the plan. Osabel and Purcino went inside
while Dador stayed outside and positioned himself approximately 30 meters
away from the house. Moments later, he heard a woman shouting for help from
inside the house. After two hours, Osabel and Purcino came out, carrying with
them one karaoke machine and one rifle. Osabels hands were bloodied. He
explained that he had to tie both the victims hands with the power cord of a
television set before he repeatedly stabbed them. He killed the spouses so they
can not report the robbery to the authorities.
Osabel ordered Dador to hire a tricycle while he and Purcino waited inside
the garage of a bus line. However, when Dador returned with the tricycle, the
two were no longer there. He proceeded to the house of Osabel and found him
there with Purcino. They were counting the money they got from the
victims. They gave him P300.00. Later, when Dador accompanied the two to
Sta. Cruz, Manila to dispose of the karaoke machine, he received another
P500.00. Osabel had the rifle repaired in Gulang-Gulang, Lucena City.
Dador and Osabel were subsequently arrested for the killing of a certain
Cesar M. Sante. During the investigation, Dador executed an extrajudicial
confession admitting complicity in the robbery and killing of the Jael spouses
and implicating appellant and Osabel in said crime. The confession was given
with the assistance of Atty. Rey Oliver Alejandrino, a former Regional Director
of the Human Rights Commission Office. Thereafter, Osabel likewise executed
an extrajudicial confession of his and appellants involvement in the robbery and
killing of the Jaels, also with the assistance of Atty. Alejandrino.
Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning
of July 17, 1992, he noticed that the victims, who were known to be early risers,
had not come out of their house. He started calling them but there was no
response. He instructed his son to fetch the victims son, SPO1 Lamberto
Jael. When the latter arrived, they all went inside the house and found
bloodstains on the floor leading to the bathroom. Tabor opened the bathroom
door and found the lifeless bodies of the victims.
Dr. Vicente F. Martinez performed the post-mortem examination on the
bodies of the victims and testified that since rigor mortis had set in at the back
of the neck of the victims, Romualdo Jael died between six to eight hours before
the examination while Leonila Jael died before midnight of July 16, 1992. The
cause of death of the victims was massive shock secondary to massive
hemorrhage and multiple stab wounds.
Appellant Masinag, for her part, denied involvement in the robbery and
homicide. She testified that she knew the victims because their houses were
about a kilometer apart. She and Osabel were friends because he courted her,
but they never had a romantic relationship. She further claimed that the last
time she saw Osabel was six months prior to the incident. She did not know
Dador and Guilling at the time of the incident. According to her, it is not true that
she harbored resentment against the victims because they berated her son for
stealing their daughters handbag. On the whole, she denied any participation
in a conspiracy to rob and kill the victims.
From the decision convicting appellant Masinag and Osabel, only the former
appealed, based on the lone assigned error:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING


ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF
ROBBERY WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL
PARTICIPATION IN THE COMMISSION OF THE SAID CRIME.

The appeal is meritorious.


While it is our policy to accord proper deference to the factual findings of the
trial court, owing to their unique opportunity to observe the witnesses firsthand
[6]

and note their demeanor, conduct, and attitude under grueling


examination, where there exist facts or circumstances of weight and influence
[7]

which have been ignored or misconstrued, or where the trial court acted
arbitrarily in its appreciation of facts, we may disregard its findings.
[8]

Appellant contends that the extrajudicial confessions of Osabel and Dador


were insufficient to establish with moral certainty her participation in the
conspiracy. Firstly, Dador was not present to hear appellant instigate the group
to rob the Jael spouses. He only came to know about the plan when Osabel
told him on their way home. Thus, Dador had no personal knowledge of how
the plan to rob was actually made and of appellants participation
thereof. Secondly, while Osabel initially implicated her in his extrajudicial
confession as one of the conspirators, he repudiated this later in open court
when he testified that he was forced to execute his statements by means of
violence.
On direct examination, Dador narrated what transpired in the house of
appellant on July 15, 1992, to wit:
PROSECUTOR GARCIA:
Q. And do you remember the subject or subjects of that conversation that transpired
among you?
A. Yes, sir.
Q. Please tell us what was the subject or subjects of the conversation that transpired
among you on July 15, 1992 at the house of Decena Masinag?
A. The subject of our conversation there was the robbing of Sps. Jael, sir.
Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael?
A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena
Masinag, sir.
Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who
planned the robbery?
A. Because they were the only ones who were inside the house and far from us
and they were inside the room, sir.

xxxxxxxxx
Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena
Masinag together with your companions Danilo Murillo and Purcino?
A. No, sir.
Q. Was there any occasion on the same date that Decena Masinag talk to you?
ATTY. FLORES:
Already answered, your Honor.
COURT:
Witness, may answer.
WITNESS:
None, sir. (emphasis ours)[9]

We find that the foregoing testimony of Dador was not based on his own
personal knowledge but from what Osabel told him. He admitted that he was
never near appellant and that he did not talk to her about the plan when they
were at her house on July 15, 1992. Thus, his statements are hearsay and does
not prove appellants participation in the conspiracy.
Under Rule 130, Section 36 of the Rules of Court, a witness can testify only
to those facts which he knows of his own personal knowledge, i.e., which are
derived from his own perception; otherwise, such testimony would be
hearsay. Hearsay evidence is defined as evidence not of what the witness
knows himself but of what he has heard from others. The hearsay rule bars
[10]

the testimony of a witness who merely recites what someone else has told him,
whether orally or in writing. In Sanvicente v. People, we held that when
[11] [12]

evidence is based on what was supposedly told the witness, the same is without
any evidentiary weight for being patently hearsay. Familiar and fundamental is
the rule that hearsay testimony is inadmissible as evidence. [13]

Osabels extrajudicial confession is likewise inadmissible against


appellant. The res inter alios acta rule provides that the rights of a party cannot
be prejudiced by an act, declaration, or omission of another. Consequently,
[14]

an extrajudicial confession is binding only upon the confessant and is not


admissible against his co-accused. The reason for the rule is that, on a principle
of good faith and mutual convenience, a mans own acts are binding upon
himself, and are evidence against him. So are his conduct and declarations. Yet
it would not only be rightly inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized strangers; and if a party
ought not to be bound by the acts of strangers, neither ought their acts or
conduct be used as evidence against him. [15]

The rule on admissions made by a conspirator, while an exception to the


foregoing, does not apply in this case. In order for such admission to be
admissible against a co-accused, Section 30, Rule 130 of the Rules of Court
requires that there must be independent evidence aside from the extrajudicial
confession to prove conspiracy. In the case at bar, apart from Osabels
extrajudicial confession, no other evidence of appellants alleged participation in
the conspiracy was presented by the prosecution. There being no independent
evidence to prove it, her culpability was not sufficiently established.
Unavailing also is rule that an extrajudicial confession may be admissible
when it is used as a corroborative evidence of other facts that tend to establish
the guilt of his co-accused. The implication of this rule is that there must be a
finding of other circumstantial evidence which, when taken together with the
confession, establishes the guilt of a co-accused beyond reasonable
doubt. As earlier stated, there is no other prosecution evidence, direct or
[16]

circumstantial, which the extrajudicial confession may corroborate.


In People v. Berroya, we held that to hold an accused liable as co-principal
[17]

by reason of conspiracy, he must be shown to have performed an overt act in


pursuance or furtherance of the conspiracy. That overt act may consist of active
participation in the actual commission of the crime itself, or it may consist of
moral assistance to his co-conspirators by being present at the time of the
commission of the crime, or by exerting moral ascendancy over the other co-
conspirators by moving them to execute or implement the conspiracy.
In the case at bar, no overt act was established to prove that appellant
shared with and concurred in the criminal design of Osabel, Dador and
Purcino. Assuming that she had knowledge of the conspiracy or she
acquiesced in or agreed to it, still, absent any active participation in the
commission of the crime in furtherance of the conspiracy, mere knowledge,
acquiescence in or agreement to cooperate is not sufficient to constitute one as
a party to a conspiracy. Conspiracy transcends mere companionship.
[18] [19]

Conspiracy must be proved as convincingly as the criminal act itself. Like


any element of the offense charged, conspiracy must be established by proof
beyond reasonable doubt. Direct proof of a previous agreement need not be
[20]

established, for conspiracy may be deduced from the acts of appellant pointing
to a joint purpose, concerted action and community of interest. Nevertheless,
except in the case of the mastermind of a crime, it must also be shown that
appellant performed an overt act in furtherance of the conspiracy. [21]

All told, the prosecution failed to establish the guilt of appellant with moral
certainty. Its evidence falls short of the quantum of proof required for
conviction. Accordingly, the constitutional presumption of appellants innocence
must be upheld and she must be acquitted.
WHEREFORE, in view of the foregoing, the appealed decision of the
Regional Trial Court of Lucena City, Branch 60 in Criminal Case No. 92-487,
insofar only as it finds appellant guilty beyond reasonable doubt of the crime of
Robbery with Homicide, is REVERSED and SET ASIDE. Appellant Decena
Masinag Vda. De Ramos is ACQUITTED of the crime of Robbery with
Homicide. She is ORDERED RELEASED unless there are other lawful causes
for her continued detention. The Director of Prisons is DIRECTED to inform this
Court, within five (5) days from notice, of the date and time when appellant is
released pursuant to this Decision.
SO ORDERED.
[G.R. No. 126713. July 27, 1998]

ADORACION E. CRUZ, THELMA DEBBIE E. CRUZ and GERRY E.


CRUZ, petitioners, vs. COURT OF APPEALS and SPOUSES
ELISEO and VIRGINIA MALOLOS, respondents.

DECISION
PANGANIBAN, J.:

Contracts constitute the law between the parties. They must be read together and
interpreted in an manner that reconciles and gives life to all of them. The intent of the
parties, as shown by the clear language used, prevails over post facto explanations that
find no support from the words employed by the parties of from their contemporary and
subsequent acts showing their understanding of such contracts, Furthermore, a
subsequent agreement cannot novate or change by implication a previous one, unless
old and new contracts are, on every point, incompatible with each other. Finally, collateral
facts may be admitted in evidence when a rational similarity exists between the conditions
giving rise to the fact offered and the circumstances surrounding the issue or fact to be
proved.

The Case

Before us is a petition for review on certiorari seeking to nullify the Court of Appeals
(CA) Decision[1] in CA- GR CV 33566, promulgated July 15, 1996, which reversed the
Regional Trial Court (RTC) of Antipolo, Rizal; and CA Resolution [2] of October 1, 1996,
which denied petitioners Motion for Reconsideration.
Petitioners Adoracion, Thelma Debbie, Gerry and Arnel (all surnamed Cruz) filed an
action for partition against the private respondents, Spouses Eliseo and Virginia
Malolos. On January 28, 1991, the trial court rendered a Decision which disposed as
follows:[3]

WHEREFORE, judgment is hereby rendered for the plaintiffs and against the
defendants-spouses

1. Ordering the partition of the seven parcels of land totalling 1,912 sq. m.
among the four (4) plaintiffs and the defendants-spouses as follows:

a. Adoracion E. Cruz (1/5) --- 382 sq. m.


b. Thelma Debbie Cruz (1/5) --- 382 sq. m.
c. Gerry E. Cruz (1/5) --- 382 sq. m.
d. Arnel E. Cruz (1/5) --- 382 sq. m.
e. Spouses Eliseo and Virginia Malolos (1/5) --- 382 sq. m.

to whom Lot No. 1-C-2-B-2-B-4-L-1-A with an area of 276


sq. m. covered by TCT No. 502603 and a portion of Lot No.
1-C-2-B-2-B-4-L-1-B covered by TCT No. 502604 to the
extent of 106 sq. m. adjoining TCT No. 502603.

2. Ordering the parties herein to execute a project of partition in accordance


[with] this decision indicating the partition of the seven (7) parcels of land
within fifteen (15) days upon receipt of this judgment.

3. Ordering defendants-spouses to pay plaintiffs herein P5,000.00 as and for


attorneys fees;

4. Cost of suit.

On appeal, Respondent Court reversed the trial court thus:[4]

WHEREFORE, finding the appeal to be meritorious, we REVERSE the


appealed decision and render judgment DISMISSING the complaint without
prejudice however to the claim of plaintiff-appellees for their shares in the
proceeds of the auction sale of the seven (7) parcels of land in question
against Nerissa Cruz Tamayo pursuant to the Memorandum Agreement.

Cost against the plaintiff-appellees.

As earlier stated, reconsideration was denied through the appellate courts challenged
Resolution:[5]

WHEREFORE, for lack of merit, the Motion for Reconsideration in DENIED..

The Antecedent Facts

The facts of this case are undisputed. The assailed Decision relates them as follows:[6]

Delfin I. Cruz and Adoracion Cruz were spouses and their children were
Thelma, Nerissa, Arnel and Gerry Cruz. Upon the death of Delfin I. Cruz, [his]
surviving spouse and children executed on August 22, 1977 a notarized Deed
of Partial Partition (Exhibit 2) by virtue of which each one of them was given a
share of several parcels of registered lands all situated in Taytay, Rizal.
The following day, August 23, 1977, the same mother and children executed a
Memorandum Agreement (Exhibit H) which provided:

That the parties hereto are common co-owners pro-indiviso in equal shares of
the following registered real properties, all situated at Taytay, Rizal,
Philippines, x x x.

xxx

That sometime on August 22, 1977, a Deed of Partial Partition was executed
among us before Atty. Virgilio J. Tamayo, Notary Public on and for the
Province of Rizal, per Doc. No. 1776; Page No. 14; of his Notarial Register
No. XLIX, Series of 1977;

xxx

That as a result of said partial partition, the properties affected were actually
partitioned and the respective shares of each party, adjudicated to him/her;

That despite the execution of this Deed of Partial Partition and the eventual
disposal or sale of their respective shares, the contracting parties herein
covenanted and agreed among themselves and by these presents do hereby
bind themselves to one another that they shall share alike and received equal
shares from the proceeds of the sale of any lot or lots allotted to and
adjudicated in their individual names by virtue of this deed of partial partition.

That this Agreement shall continue to be valid and enforceable among the
contracting parties herein up to and until the last lot covered by the Deed of
[P]artial [P]artition above adverted to shall have been disposed of or sold and
the proceeds thereof equally divided and their respective shares received by
each of them.

This Memorandum Agreement was registered and annotated in the titles of


the lands covered by the Deed of Partial Partition.

Subsequently, the same parties caused the consolidation and subdivisions of


the lands they respectively inherited from the late Delfin I. Cruz per Deed of
Partial Partition. After that, they registered the Deed of Partial Partition and
subdivision plans and titles were issued in their names. In the case of Nerissa
Cruz Tamayo, the following titles were issued to her in her name: TCT No.
502603 (Exhibit A), TCT No. 502604, (Exhibit B), TCT No. 502605 (Exhibit C),
TCT No. 502606 (Exhibit D), TCT No. 502608 (Exhibit E), TCT No. 502609
(Exhibit F), TCT No. 502610 (Exhibit G), hereinafter called the lands in
question. Naturally, the annotation pertaining to the Memorandum Agreement
was carried in each of said seven (7) titles and annotated in each of them.

Meanwhile, the spouses Eliseo and Virginia Malolos filed Civil Case No.
31231 against the spouses Nerissa Cruz-Tamayo and Nelson Tamayo for a
sum of money. The Court of First Instance of Rizal, Branch XVI (Quezon City)
rendered a decision of June 1, 1981 in favor of Eliseo and Virginia
condemning the spouses Nerissa and Nelson Tamayo to pay
them P126,529.00 with 12% interest per annum from the filing of the
complaint plus P5,000.00 attorneys fee. After the finality of that decision, a
writ of execution (Exhibit J) was issued on November 20, 1981.

Enforcing said writ, the sheriff of the court levied upon the lands in
question. On June 29, 1983, these properties were sold in an execution sale
to the highest bidders, the spouses Eliseo and Virginia Malolos. Accordingly,
the sheriff executed a Certificate of Sale (Exhibit K) over

all the rights, claims, interests, titles, shares, and participations of defendant
spouses Nerissa Tamayo and Nelson Tamayo..

Nerissa Cruz Tamayo failed to exercise her right of redemption within the
statutory period and so the final deed of sale was executed by the sheriff
conveying the lands in question to spouses Eliseo and Virginia Malolos. The
Malolos couple asked Nerissa Cruz Tamayo to give them the owners
duplicate copy of the seven (7) titles of the lands in question but she
refused.The couple moved the court to compel her to surrender said titles to
the Register of Deeds of Rizal for cancellation. This was granted on
September 7, 1984. But Nerissa was adamant. She did not comply with the
Order of the court and so the Malolos couple asked the court to declare said
titles as null and void.

At this point, Adoracion Cruz, Thelma Cruz, Gerry Cruz and Arnel
Cruz entered the picture by filing is said lower court a motion for leave to
intervene and oppose [the] Maloloses motion.The Cruzes alleged that they
were co-owners of Nerissa Cruz Tamayo over the lands in question.

On January 18, 1985, said court issued an Order modifying the Order of
September 7, 1984 by directing the surrender of the owners duplicate copies
of the titles of the lands in question to the Register of Deeds not for
cancellation but for the annotation of the rights, interest acquired by the
Maloloses over said lands.
On February 17, 1987, Adoracion, Thelma, Gerry and Arnel Cruz filed Civil
Case No. 961-A for Partition of Real Estate against spouses Eliseo and
Virginia Malolos over the lands in question.

As already stated in the first paragraph of this Decision, the court a


quo rendered a decision in favor of the plaintiffs from which the defendants
appealed to this court, x x x x .

Ruling of the Court of Appeals

For Respondent Court, the central issue was: Did the Memorandum of Agreement
[MOA] (Exhibit H)[7] revoke, cancel or supersede the Deed of Partial Partition [DPP]
(Exhibit 2)?[8] If so, then petitioners and Spouses Tamayo were co-owners of the land in
issue, and partition should ensue upon motion of the former; if not, then the latter are its
absolute owners and to partition should be made.
Respondent Court resolved the above question in the negative for the following
reasons:
First, the DPP was not materially and substantially incompatible with the MOA. The
DPP conferred absolute ownership of the parcels of land in issue on Nerissa Cruz
Tamayo, while the MOA merely created an obligation on her part to share with the
petitioners the proceeds of the sale of said properties.
Second, the fact that private respondent registered the DPP was inconsistent with
the allegation that they intended to abandon it. Indeed, had they meant to abandon it,
they would have simply gathered the copies of said document and then torn of burned
them.
Third, petitioners were estopped from claiming co-ownership over the disputed
properties because, as absolute owners, they either mortgaged or sold the other
properties adjudicated to them by virtue of the DPP.
Hence, this petition.[9]

Assignment of Errors

In their Memorandum,[10] petitioners submit the following assignment of errors:

A. Respondent Court erred in ruling that the Memorandum of Agreement


(Exhibit H) does not prevail over the Deed of Partial Partition
(Exhibit 2).
B. Respondent Court erred in ruling that petitioners can only claim their
right to the proceeds of [the] auction sale.

C. Respondent Court erred in ruling that petitioners are in estoppel by deed.

D. Respondent Court erred in ruling that the registration of the deed of


partial partition precluded the petitioners from abrogating it.

E. Respondent Court erred when it completely ignored the finality of the


order of the Regional Trial Court of Quezon City, Branch LXXXVI
as embodied in the decision of the Regional Trial Court of
Antipolo, Rizal, Branch 71.

In fine, the resolution of this petition hinges of the following issues: (1) whether DPP
was cancelled or novated by the MOA; (2) whether the MOA established, between
petitioners and the judgment debtor, a co-ownership of the lots in question; (3) whether
petitioners are barred by estoppel from claiming co-ownership of the seven parcels of
land; and (4) whether res judicata has set in.

The Courts Ruling

The petition is bereft of merit. It fails to demonstrate any reversible error on the part
of the Court of Appeals.

First Issue: No Novation or Cancellation

In their Memorandum, petitioners insist that the MOA categorically and unmistakably
named and covenanted them as co-owners of the parcels in issue and novated their
earlier agreement, the Deed of Partial Partition.
Petitioners claim that the MOA clearly manifested their intention to create a co-
ownership. This is particularly evident in Exhibit 1-B, which provides:

That despite the execution of this Deed of Partial Partition and eventual
disposal or sale of their respective shares, the contracting parties herein
covenanted and agreed among themselves and by these presents do hereby
bind themselves to one another that they shall share and receive equal shares
from the proceeds of the sale of any lot or lots allotted to and adjudicated in
their individual names by virtue of this deed of partial partition.

The Court disagrees. The foregoing provision in the MOA does not novate, much less
cancel, the earlier DPP. Novation, one of the modes of extinguishing an obligation,
requires the concurrence of the following: (1) there is a previous valid obligation; (2) the
parties concerned agree to a new contract; (3) the old contract is extinguished; and (4)
there is a valid new contract.[11] Novation may be express or implied. Article 1292 of the
Code provides: In order that an obligation may be extinguished by another which
substitutes the same, it is imperative that it be so declared in unequivocal terms [express
novation],[12] or that the old and new obligations be on every point incompatible with each
other [implied novation].
Tested against the foregoing standards, petitioners stance is shattered to pieces. The
stipulation that the petitioners and Spouses Tamayo were co-owners was merely the
introductory part of the MOA, and it reads:[13]

That the parties are common co-owners pro-indiviso in equal shares of the
following registered real properties, all situated at Taytay, Rizal, Philippines.
xxx

xxxxxxxxx

That sometime in August 22, 1977, a Deed of Partial Partition was executed
among us before Atty. Virgilio J. Tamayo, Notary Public in and for the
Province of Rizal, per Doc. No. 1796; Page No. 14; of his Notarial Register
No. XLIX, Series of 1977;

Following the above-quoted stipulation is a statement that the subject parcels of land had
in fact been partitioned, but that the former co-owner intended to share with petitioners
the proceeds of any sale of said land,[14] viz:

That [as] a result of said partial partition, the properties affected were actually
partitioned and the respective shares of each party, adjudicated to him/her;

That despite the execution of this Deed of Partial Partition and the eventual
disposal or sale of their respective shares, the contracting parties herein
covenanted and agreed among themselves [and] to one another that they
shall do [sic] hereby bind themselves to one another that they shall share alike
and receive equal shares from the proceeds of the sale of any lot or lots
allotted to and adjudicated in their individual names by virtue of this deed of
partial partition;

That this Agreement shall continue to be valid and enforceable among the
contracting parties herein up to and until the last lot covered by the deed or
partial partition above adverted to shall have been disposed of or sold and the
proceeds thereof equally divided and their respective shares received by each
of them.
xxxxxxxxx
The MOA falls short of producing a novation, because it does not express a clear
intent to dissolve the old obligation as a consideration for the emergence of the new
one.[15] Likewise, petitioners fail to show that the DPP and the MOA are materially and
substantially incompatible with each other. Petitioners admit that, under the MOA, they
and the Tamayo spouses agreed to equally share in the proceeds of the sale of the
lots.[16] Indeed, the DPP granted title to the lots in question to the co-owner to whom they
were assigned, and the MOA created an obligation on the part of such co-owner to share
with the others the proceeds of the sale of such parcels. There is no incompatibility
between these two contracts.
Verily, the MOA cannot be construed as a repudiation of the earlier DPP. Both
documents can exist together and must be so interpreted as to give life to
both. Respondent Court aptly explained:[17]

The Deed of Partition conferred upon Nerissa Cruz Tamayo absolute


ownership over the lands in question. The Memorandum of Agreement merely
created an obligation on the part of absolute owner Nerissa Cruz Tamayo to
share [with] the appellees with [sic] the proceeds of the sale of said properties.

The obligation of the owner of a piece of land to share [with] somebody with
[sic] its fruits or the proceeds of its sale does not necessarily impair his
dominion over the property much less make the beneficiary his co-owner
thereof.

All in all, the basic principle underlying this ruling is simple: when the text of a contract
is explicit and leaves no doubt as to its intention, the court may not read into it any
intention that would contradict its plain import.[18] The hornbook rule on interpretation of
contracts gives primacy to the intention of the parties, which is the law among
them. Ultimately, their intention is to be deciphered not from the unilateral post
facto assertions of one of the parties, but from the language used in the contract. And
when the terms of the agreement, as expressed in such language, are clear, they are to
be understood literally, just as they appear on the face of the contract.
Indeed, the legal effects of a contract are determined by extracting the intention of
the parties from the language they used and from their contemporaneous and subsequent
acts.[19]This principle gains more force when third parties are concerned. To require such
persons to go beyond what is clearly written in the document is unfair and unjust. They
cannot possibly delve into the contracting parties minds and suspect that something is
amiss, when the language of the instrument appears clear and unequivocal.

Second Issue: No Co-ownership in the MOA


Petitioners contend that they converted their separate and individual ownership over
the lands in dispute into a co-ownership by their execution of the MOA and the annotation
thereof on the separate titles.
The Court is not convinced. The very provisions of the MOA belie the existence of a
co-ownership. First, it retains the partition of the properties, which petitioners supposedly
placed in co-ownership; and, second, it vests in the registered owner the power to dispose
of the land adjudicated to him or her under the DPP. These are antithetical to the
petitioners contention. In a co-ownership, an undivided thing or right belongs to two or
more persons.[20] Put differently, several persons hold common dominion over a spiritual
(or ideal) part of a thing, which is not physically divided.[21] In the present case, however,
the parcels of land in the MOA have all been partitioned and titled under separate and
individual names. More important, the MOA stipulated that the registered owner could sell
the land without the consent of the other parties to the MOA. Jus disponendi is an attribute
of ownership, and only the owner can dispose of a property.[22]
Contrary to petitioners claim, the annotation of the MOA in the certificate of title did
not engender any co-ownership. Well settled is the doctrine that registration merely
confirms, but does not confer, title.[23] It does not give the holder any better title than what
he actually has. As earlier observed, the MOA did not make petitioners co-owners of the
disputed parcels of land. Hence, the annotation of this document in the separate
certificates of title did not grant them a greater right over the same property.

Third Issue: Estoppel by Deed

Respondent Court found that several deeds of sale and real estate mortgage, which
petitioners executed when they sold or mortgaged some parcels adjudicated to them
under the DPP, contained the statement that the vendor/mortgagor was the absolute
owner of the parcel of residential land and that he or she represented it as free from liens
and encumbrances. On the basis of these pieces of evidence, respondent Court held that
petitioners were estopped from claiming that there was a co-ownership over the disputed
parcels of land which were also covered by the DPP. Petitioners contend that Respondent
Court , in so ruling violated the res inter alios acta rule.
Petitioners contentions is untenable. Res inter alios acta, as a general rule, prohibits
the admission of evidence that tends to show that what a person has done at one time is
probative of the contention that he has done a similar as act at another time. [24] Evidence
of similar acts or occurrences compels the dependant to meet allegations that are not
mentioned in the complaint, confuses him in his defense, raises a variety of irrelevant
issues, and diverts the attention of the court from the issues immediately before it. Hence,
this evidentiary rule guards against the practical inconvenience of trying collateral issues
and protracting the trial and prevents surprise or other mischief prejudicial to litigants.[25]
The rule, however, is not without exception. While inadmissible in general, collateral
facts may be received as evidence under exceptional circumstances, as when there is a
rational similarity or resemblance between the conditions giving rise to the fact offered
and the circumstances surrounding the issue or fact to be proved. [26] Evidence of similar
acts may frequently become relevant, especially in actions based on fraud and deceit,
because it sheds light on the state of mind or knowledge of a persons; it provides insight
into such persons motive or intent; it uncovers a scheme, design or plan; or it reveals a
mistake.[27]
In this case, petitioners argue that transactions relating to the other parcels of land
they entered into, in the concept of absolute owners, are inadmissible as evidence to
show that the parcels in issue are not co-owned. The court is not persuaded. Evidence of
such transactions falls under the exception to the rule on the res inter alios acta. Such
evidence is admissible because it is relevant to an issue in the case and corroborative of
evidence already received.[28] The relevancy of such transactions is readily apparent. The
nature of ownership of said property should be the same as that of the lots on question
since they are all subject to the MOA. If the parcels of land were held and disposed by
petitioners in fee simple, in the concept of absolute owners, then the lots in question
should similarly be treated as absolutely owned in fee simple by the Tamayo
spouses. Unmistakably, the evidence in dispute manifests petitioners common purpose
and design to treat all the parcels of land covered by the DPP as absolutely owned and
not subject to co-ownership.[29]
Under the principle of estoppel, petitioners are barred from claiming co-ownership of
the lands in issue. In estoppel, a person, who by his deed or conduct has introduced
another to act in a particular manner, is barred from adopting an inconsistent position,
attitude or course of conduct that thereby causes loss or injury to another.[30] It further bars
him from denying the truth of a fact which has, in the contemplation of law, become settled
by the acts and proceedings of judicial or legislative officers or by the act of the party
himself, either by conventional writing or by representations, express or implied or in
pairs.[31]
In their transaction with others, petitioners have declared that the other lands covered
by the same MOA are absolutely owned, without indicating the existence of a co-
ownership over such properties. Thus, they are estopped from claiming otherwise
because, by their very own acts and representations as evidenced by the deeds of
mortgage and of sale, they have denied such co-ownership.[32]

FOURTH ISSUES: No Res Judicata On Co-ownership

Petitioners argue that the Order (Exhibit J)[33] dated January 18, 1985, issued by the
RTC of Quezon City, Branch 86, which had long become final and executory, confirmed
their co-ownership. Thus, they claim that Respondent Courts reversal of the ruling of the
RTC of Antipolo, Rizal, is a violation of the rule on res judicata.
This contention is equally untenable. The elements of res judicata are: (1) the former
judgment was final; (2) the court which rendered it had jurisdiction over the subject matter
and the parties;(3) the judgment was on the merits; and (4) the parties, subject matters
and causes of action in the first and second actions are identical.[34]
The RTC of Quezon City had no jurisdiction to decide on the merits of the present
case or to entertain questions regarding the existence of co-ownership over the parcels
in dispute, because the suit pending before it was only for the collection of a sum of
money. Its disquisition on co-ownership was merely for the levy and the execution of the
properties of the Tamayo spouses, in satisfaction of their judgment debt to the private
respondents.
Perhaps more glaring is the lack of identity between the two actions. The first action
before the RTC of Quezon City was for the collection of money, while the second before
the RTC of Antipolo, Rizal, was for partition. There being no concurrence of the elements
of res judicata in this case, the Court finds no error in Respondent Courts ruling. No
further discussion is needed to show the glaring difference between the two
controversies.
WHEREFORE, the petition is hereby DENIED and the assailed Decision is
Affirmed. Cost against petitioners.
SO ORDERED.
ANNA LERIMA PATULA, G.R. No. 164457
Petitioner,
Present:

CORONA,C.J.,Chairperson,
-versus- LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR.,JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. April 11, 2012
x-----------------------------------------------------------------------------------------x
DECISION

BERSAMIN, J.:

In the trial of everycriminal case, a judge must rigidlytest the States evidence
of guilt in order to ensure that such evidenceadheres to the basic rules of
admissibility before pronouncing an accused guilty of the crime charged upon such
evidence. Nothing less is demanded of the judge; otherwise, the guarantee of due
process of law is nullified.The accused need notadduceanythingto rebut evidence
that is discredited for failing the test.Acquittal should then follow.

Antecedents

Petitioner was charged withestafaunder an informationfiled in the Regional Trial


Court (RTC) in DumagueteCitythat averred:

That on or about and during the period from March 16 to 20, 1997 and for
sometime prior thereto, in the City of Dumaguete, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, being then a
saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having
collected and received the total sum of P131,286.97 from several
customers of said company under the express obligation to account for the
proceeds of the sales and deliver the collection to the said company, but
far from complying with her obligation and after a reasonable period of
time despite repeated demands therefore, and with intent to defraud the
said company, did, then and there willfully, unlawfully and feloniously
fail to deliver the said collection to the said company but instead, did, then
and there willfully unlawfully and feloniously misappropriate, misapply
and convert the proceeds of the sale to her own use and benefit, to the
damage and prejudice of the said company in the aforesaid amount
of P131,286.97.

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]

Petitioner pled not guiltyto the offense charged in the information. At pre-
trial, no stipulation of factswas had, and petitioner did not avail herself of plea
bargaining.Thereafter, trial on the merits ensued.

The Prosecutions first witness was Lamberto Go, who testified that he was the
branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in Dumaguete
City since October 8, 1994; that petitioner was an employee of Footluckers, starting
as a saleslady in 1996 until she became a sales representative; that as a sales
representative she was authorized to take orders from wholesale customers coming
from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and
Mabinay in Negros Oriental, and Siquijor), and to collect payments from them; that
she could issue and sign official receipts of Footluckers for the payments, which she
would then remit; that she would then submit the receipts for the payments for
tallying and reconciliation; that at first her volume of sales was quite high, but later
on dropped, leading him to confront her; that she responded that business was slow;
that he summoned the accounting clerk to verify; that the accounting clerk
discovered erasures on some collection receipts; that he decided to subject her to an
audit by company auditor Karen Guivencan; that he learned from a customer of
petitioners that the customers outstanding balance had already been fully paid
although that balance appeared unpaid in Footluckers records; and that one night
later on, petitioner and her parents went to his house to deny having misappropriated
any money of Footluckers and to plead for him not to push through with a case
against her, promising to settle her account on a monthly basis; and that she did not
settle after that, but stopped reporting to work.[2]

On March 7, 2002, Gos cross examination, re-direct examination and re-


crossexamination were completed.
The only other witness for the Prosecution was Karen Guivencan,
whomFootluckers employed as its store auditor since November 16, 1995 until her
resignation on March 31, 2001. She declared that Go had requested her to audit
petitioner after some customers had told him that they had already paid their
accounts but the office ledger had still reflected outstandingbalances for them; that
she first conducted her audit by going to the customers in places from Mabinay to
Zamboanguitain Negros Oriental, and then in Siquijor; thatshe discovered in the
course of her audit that the amounts appearing on the original copies of receipts in
the possession of around 50 customers varied from the amounts written on the
duplicate copies of the receipts petitioner submitted to the office; that upon
completing her audit, she submittedto Go a written report denominated as List of
Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records
as per Audit Duly Verified March 16-20, 1997 marked as Exhibit A; and that based
on the report, petitioner had misappropriated the total amount ofP131,286.92.[3]

During Guivencans stint as a witness, the Prosecution marked the ledgers of


petitioners various customers allegedly with discrepancies as Exhibits B to YYand
their derivatives, inclusive. Each of the ledgers had a first column that contained the
dates of the entries, a second that identified the invoices by the number, a third that
statedthe debit, a fourth that noted the credit (or the amounts paid), and a fifth that
summed the balances (debit minus credit).Only 49 of theledgerswere formally
offered and admitted by the RTC because the 50thledger could no longer be found.

In the course of Guivencansdirect-examination,petitioners counsel interposed


a continuing objection on the ground that the figuresentered in Exhibits B to YYand
their derivatives, inclusive, were hearsay because the persons who had made the
entries were not themselves presented in court.[4]With that, petitioners counsel did
not anymore cross-examine Guivencan, apparently regarding her testimony to be
irrelevant because she thereby tended to prove falsification, an offense not alleged
in the information.

TheProsecution thenformally offered its documentary exhibits, including


Exhibits B to YYand their derivatives (like the originals and duplicates of the
receipts supposedly executed and issued by petitioner), inclusive, the confirmation
sheets used by Guivencan in auditing the accounts served by petitioner, and
Guivencans so-called Summary (Final Report) of Discrepancies.[5]
After the Prosecution rested its case, the Defense decided not to file a
demurrer to evidence although it had manifested the intention to do so, and instead
rested itscase.The Prosecution and Defense submitted their respective memoranda,
and submitted the case for decision.[6]

On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted
not to present evidence for her defense the Prosecutions evidence remained
unrefuted and uncontroverted,[7]rendered its decision finding petitioner guilty
of estafa, to wit:

Wherefore, in the light of the foregoing facts and circumstances, the


Court finds ANNA LERIMA PATULA guilty beyond reasonable doubt
of the crime of Estafa under Art. 315 par (1b) of the Revised Penal Code
and accordingly, she is hereby sentenced to suffer an INDETERMINATE
PENALTY of imprisonment of 8 years and 1 day of prision mayor as
minimum to 18 years and 4 months of reclusion temporal as maximum
with all the accessory penalties provided by law and to indemnify private
complainant the amount of P131,286.92 with interest at 12% per annum
until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal


Procedure, the cash bail put up by the accused shall be effective only until
the promulgation of this judgment.

SO ORDERED.[8]

Petitioner filed a motion for reconsideration, butthe RTC denied the motion
on May 7, 2004.[9]

Issues

Insisting that the RTCs judgment grossly violated [her] Constitutional and
statutory right to be informed of the nature and cause of the accusation against her
because, while the charge against her is estafa under Art. 315, par. 1 (b) of the
Revised Penal Code, the evidence presented against her and upon which her
conviction was based, was falsification, an offense not alleged or included in the
Information under which she was arraigned and pleaded not guilty, and that said
judgment likewise blatantly ignored and manifestly disregarded the rules on
admission of evidence in that the documentary evidence admitted by the trial court
were all private documents, the due execution and authenticity of which were not
proved in accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence,
petitioner has directly appealed to the Court via petition for review on certiorari,
positing the following issues, to wit:

1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT


MATTER , CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF
THE REVISED PENAL CODE CAN BE CONVICTED UPON OR BY
EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC) NOT
ALLEGED IN THE INFORMATION.

2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND


STATUTORY RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION AGAINST HER WAS VIOLATED
WHEN SHE WAS CONVICTED UPON OR BY EVIDENCE OF
FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST
HER IS ESTAFA THROUGH MISAPPROPRIATION UNDER ART.
315, PAR. 1 (B) OF THE REVISED PENAL CODE.

3. WHETHER OR NOT THE TRIAL COURT ERRED IN


ADMITTING IN EVIDENCE, EXHIBITS B TO YY-YY-2, ALL
PRIVATE DOCUMENTS, THE DUE EXECUTION AND
AUTHENTICITY OF WHICH WERE NOT PROVED IN
ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED
RULES ON EVIDENCE ASIDE FROM THE FACT THAT SAID
EXHIBITS TEND TO PROVE FALSIFICATION BY THE ACCUSED,
A CRIME NEITHER CHARGED NOR ALLEGED IN THE
INFORMATION.

4. WHETHER OR NOT THE TRIAL COURT ERRED IN


ADMITTING THE TESTIMONY OF KAREN GUIVENCAN DESPITE
THE OBJECTION THAT SAID TESTIMONY WHICH TRIED TO
PROVE THAT THE ACCUSED FALSIFIED EXHIBITS B TO YY-YY-
2INCLUSIVE VIOLATED THE ACCUSEDS CONSTITUTIONAL
RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED
IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL
CODE.

5. WHETHER OR NOT THE TRIAL COURT ERRED IN


CONCLUDING THAT THE EVIDENCE OF THE PROSECUTION
REMAINS UNREFUTED AND UNCONTROVERTED DESPITE
ACCUSEDS OBJECTION THAT SAID EVIDENCE IS IMMATERIAL
AND IRRELEVANT TO THE CRIME CHARGED.

6. WHETHER OR NOT THE DEFENSES NOT CROSS-


EXAMINING KAREN GUIVENCAN FOR THE REASON THAT HER
TESTIMONY IS IMMATERIAL AND IRRELEVANT AS IT TENDED
TO PROVE AN OFFENSE NOT CHARGED IN INFORMATION
RESULTED IN THE ADMISSION OF SAID TESTIMONY AS BEING
UNREFUTED AND UNCONTROVERTED, AND WHETHER OR
NOT THE DEFENSES OBJECTION WOULD NOT BE CONSIDERED
WAIVED IF THE DEFENSE CROSS-EXAMINED SAID WITNESS.
7. WHETHER OR NOT THE TRIAL COURT ERRED IN
RULING THAT EXHIBIT A, WHICH IS THE LIST OF CUSTOMERS
COVERED BY SALESWOMAN LERIMA PATULA WITH
DIFFERENCE IN RECORD IS NOT HEARSAY AND SELF-
SERVING.[10]

The foregoing issues are now restatedas follows:

1. Whether or not the failure of the information for estafa to allege the
falsification of the duplicate receipts issued by petitioner to her
customersviolated petitioners right to be informed of the nature and
cause of the accusation;

2. Whether or not the RTC gravely erred in admitting evidence of the


falsification of the duplicate receiptsdespite the information not
alleging the falsification;

3. Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioners
guilt for estafaas chargeddespite their not being duly
authenticated;and
4. Whether or not Guivencanstestimony onthe ledgers and receipts
(Exhibits B to YY, and their derivatives, inclusive) to prove
petitioners misappropriation or conversion wasinadmissible for
being hearsay.

Ruling

The petition is meritorious.

I
Failure of information to allege falsification
did not violate petitioners right to be informed
of thenatureand cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to
be informed of the nature and cause of the accusation when: (a) it held that the
information did not have to allege her falsification of the duplicate receipts, and (b)
when it convicted her of estafa under Article 315, paragraph 1(b) of the Revised
Penal Codeby relying on the evidence on falsification.

The contentionof petitioner cannot be sustained.

The Bill of Rights guaranteessome rightsto every person accused of a crime,


among them the right to be informed of the nature and cause of the accusation, viz:

Section 14. (1) No person shall be held to answer for a criminal


offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed


innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his
failure to appear is unjustifiable.
Rule 110 of the Revised Rules of Court, the rule then in effect when the
information was filed in the RTC, contained the following provisions on the proper
manner of alleging the nature and cause of the accusation in the information, to wit:

Section 8.Designation of the offense. Whenever possible, a complaint


or information should state the designation given to the offense by the
statute, besides the statement of the acts or omissions constituting the
same, and if there is no such designation, reference should be made to the
section or subsection of the statute punishing it. (7)

Section 9.Cause of accusation. The acts or omissions complained of


as constituting the offense must be stated in ordinary and concise language
without repetition, not necessarily in the terms of the statute defining the
offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment. (8)
The importance of the proper manner of alleging the nature and cause of the
accusation in the informationshould never be taken for granted by the State. An
accused cannot be convicted of an offense that is not clearly charged in the
complaint or information. To convict him of an offense other than that charged in
the complaint or information would be violative of the Constitutional right to be
informed of the nature and cause of the accusation.[11] Indeed, the accused cannot be
convicted of a crime, even if duly proven, unless the crime is alleged or necessarily
included in the information filed against him.

The crime of estafacharged against petitioner was defined and penalized by


Article 315, paragraph 1 (b), Revised Penal Code, viz:

Article 315. Swindling (estafa). Any person who shall defraud


another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the fraud is over
12,000 pesos but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties
which may be imposed under the provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and


medium periods, if the amount of the fraud is over 6,000 pesos but does
not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision


correccional in its minimum period if such amount is over 200 pesos but
does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does


not exceed 200 pesos, provided that in the four cases mentioned, the fraud
be committed by any of the following means:
xxx
1. With unfaithfulness or abuse of confidence, namely:

xxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property received by
the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or
to return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money,
goods, or other property.
xxx

The elements of the offense charged were as follows:

(a) That the offender received money, goods or other personal property
in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the
same;

(b) That the offender misappropriated or converted such money, goods


or other personal property, or denied his part in its receipt;
(c) That the misappropriation or conversion or denial was to the
prejudice of another; and

(d) That the offended party made a demand on the offender for the
delivery or return of such money, goods or other personal
property.[12]

According to the theory and proof of the Prosecution, petitioner misappropriated or


converted the sums paid by her customers, and later falsified the duplicates of the
receipts before turning such duplicates to her employer to show that the customers
had paid less than the amounts actually reflected on the original receipts. Obviously,
she committed the falsification in order to conceal her misappropriation or
conversion. Considering that the falsificationwas not an offense separate and distinct
from the estafacharged against her, the Prosecution could legitimately prove her acts
of falsification as its means of establishing her misappropriation or conversion as an
essential ingredient of the crime duly alleged in the information. In that manner, her
right to be informed of the nature and cause of the accusation against her was not
infringed or denied to her.

We consider it inevitable to conclude that the information herein completely


pleaded the estafa defined and penalized under Article 315, paragraph 1 (b), Revised
Penal Codewithin the context of the substantive lawand the rules. Verily, there was
no necessity for the information to allege the acts of falsification by petitioner
because falsification was not an element of the estafacharged.

Not surprisingly,the RTC correctly dealt in its decision with petitioners


concern thuswise:

In her Memorandum, it is the contention of [the] accused that [the]


prosecutions evidence utterly fails to prove the crime charged. According
to the defense, the essence of Karen Guivencans testimony is that the
accused falsified the receipts issued to the customers served by her by
changing or altering the amounts in the duplicates of the receipts and
therefore, her testimony is immaterial and irrelevant as the charge is
misappropriation under Art. 315, paragraph (1b) of the Revised Penal
Code and there is no allegation whatsoever of any falsification or
alteration of amounts in the [i]nformation under which the accused was
arraigned and pleaded NOT GUILTY. Accused, thus, maintains that the
testimony of Karen Guivencan should therefore not be considered at all as
it tended to prove an offense not charged or included in the [i]nformation
and would violate [the] accuseds constitutional and statutory right to be
informed of the nature and cause of the accusation against her. The Court
is not in accord with such posture of the accused.

It would seem that the accused is of the idea that because the
crime charged in the [i]nformation is merely [e]stafa and not [e]stafa
[t]hru [f]alsification of documents, the prosecution could not prove
falsification. Such argumentation is not correct. Since the information
charges accused only of misappropriation pursuant to Art. 315, par.
(1b) of the Revised [P]enal Code, the Court holds that there is no
necessity of alleging the falsification in the Information as it is not an
element of the crime charged.
Distinction should be made as to when the crimes of Estafa and
Falsification will constitute as one complex crime and when they are
considered as two separate offenses. The complex crime of Estafa
Through Falsification of Documents is committed when one has to
falsify certain documents to be able to obtain money or goods from
another person. In other words, the falsification is a necessary means
of committing estafa. However, if the falsification is committed to
conceal the misappropriation, two separate offenses of estafa and
falsification are committed. In the instant case, when accused
collected payments from the customers, said collection which was in
her possession was at her disposal. The falsified or erroneous entries
which she made on the duplicate copies of the receipts were contrived
to conceal some amount of her collection which she did not remit to
the company xxx.[13]

II
Testimonial and documentary evidence,being hearsay,
did not prove petitioners guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to


establish the guilt of the accused beyond reasonable doubt. In discharging this
burden, the Prosecutions duty is to prove each and every element of the crime
charged in the information to warrant a finding of guilt for that crime or for any other
crime necessarily included therein.[14] The Prosecution must further prove the
participation of the accused in the commission of the offense. [15]In doing all these,
the Prosecution must rely on the strength of its own evidence, and not anchor its
success upon the weakness of the evidence of the accused. The burden of proof
placed on the Prosecution arises from the presumption of innocence in favor of the
accused that no less than the Constitution has guaranteed.[16]Conversely, as to his
innocence, the accused has no burden of proof,[17]that he must then be acquitted and
set free should the Prosecution not overcome the presumption of innocence in his
favor.In other words, the weakness of the defense put up by the accused is
inconsequential in the proceedings for as long as the Prosecution has not discharged
its burden of proof in establishing the commission of the crime charged and in
identifying the accused as the malefactor responsible for it.

Did the Prosecution adduce evidence that proved beyond reasonable doubt the
guilt of petitioner for the estafa charged in the information?

To establish the elements of estafaearlier mentioned, the Prosecution


presented the testimonies of Go and Guivencan, and various documentsconsisting
of: (a) the receipts allegedly issued by petitioner to each of her customers upon their
payment, (b) the ledgers listing the accounts pertaining to each customer with the
corresponding notations of the receipt numbers for each of the payments, and (c) the
confirmation sheets accomplished by Guivencan herself.[18]The ledgers and receipts
were marked and formally offered as Exhibits B to YY, and their derivatives,
inclusive.

On his part, Go essentially described for the trial court the various duties of
petitioner as Footluckers sales representative. On her part, Guivencan conceded
having no personal knowledge of the amounts actually received by petitioner from
the customersor remitted by petitioner to Footluckers.This means that persons other
than Guivencan prepared Exhibits B to YY and their derivatives, inclusive,and that
Guivencan based her testimony on the entries found in the receipts supposedly
issued by petitioner and in the ledgers held by Footluckers corresponding to each
customer, as well as on the unsworn statements of some of the customers.
Accordingly, her being the only witness who testified on the entries effectively
deprived the RTC of the reasonable opportunity to validate and test the veracity and
reliability of the entries as evidence of petitioners misappropriation or conversion
through cross-examination by petitioner. The denial of that opportunity rendered
theentire proof of misappropriation or conversion hearsay, and thus unreliable and
untrustworthy for purposes of determining the guilt or innocence of the accused.

To elucidate why the Prosecutions hearsay evidence was unreliable and


untrustworthy, and thus devoid of probative value, reference is made toSection 36
of Rule 130, Rules of Court, a rule that states that a witness can testify only to those
facts that she knows of her personal knowledge; that is, which are derived from her
own perception, except as otherwise provided in the Rules of Court. The personal
knowledge of a witness is a substantive prerequisite for accepting testimonial
evidence that establishes the truth of a disputed fact. A witness bereft ofpersonal
knowledge of the disputed fact cannot be called upon for that purpose because her
testimony derives its value not from the credit accorded to her as a witness presently
testifying but from the veracity and competency of the extrajudicial source of her
information.

In case a witness is permitted to testify based on what she has heard another
person say about the facts in dispute, the person from whom the witness derived the
information on the facts in dispute is not in court and under oath to be examined and
cross-examined. The weight of such testimony thendepends not upon theveracity of
the witness but upon the veracity of the other person giving the information to the
witness without oath. The information cannot be tested because the declarant is not
standing in court as a witness andcannot, therefore, be cross-examined.

It is apparent, too, that a person who relates a hearsay is not obliged to enter
into any particular, to answer any question, to solve any difficulties, to reconcile any
contradictions, to explain any obscurities, to remove any ambiguities; and that she
entrenches herself in the simple assertion that she was told so, and leaves the burden
entirely upon the dead or absent author.[19] Thus, the rule against hearsay testimony
rests mainly on the ground that there was no opportunity to cross-examine the
declarant.[20] The testimony may have been given under oath and before a court of
justice, but if it is offered against a party who is afforded no opportunity to cross-
examine the witness, it is hearsay just the same.[21]
Moreover, the theory of the hearsay rule is that when a human utterance is
offered as evidence of the truth of the fact asserted, the credit of the assertor becomes
the basis of inference, and, therefore, the assertion can be received as evidence only
when made on the witness stand, subject to the test of cross-examination. However,
if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted
but without reference to the truth of the matter asserted, the hearsay rule does not
apply. For example, in a slander case, if a prosecution witness testifies that he heard
the accused say that the complainant was a thief, this testimony is admissible not to
prove that the complainant was really a thief, but merely to show that the accused
uttered those words.[22] This kind of utterance ishearsay in character but is not legal
hearsay.[23]The distinction is, therefore, between (a) the fact that the statement was
made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted
in the statement, to which the hearsay rule applies.[24]

Section 36, Rule 130 of the Rules of Court is understandably not the only rule
that explains why testimony that is hearsay should be excluded from consideration.
Excluding hearsay also aims to preserve the right of the opposing party to cross-
examine the originaldeclarant claiming to have a direct knowledge of the transaction
or occurrence.[25]If hearsay is allowed, the right stands to be denied because the
declarant is not in court.[26]It is then to be stressed that the right to cross-examine the
adverse partys witness,

being the only means of testing the credibility of witnesses and their testimonies, is
essential to the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to


establish the truth in a dispute while also safeguardinga partys right to cross-examine
her adversarys witness,the Rules of Court offers two solutions. The firstsolution is to
require that allthe witnesses in a judicial trial or hearing be examined only in
courtunder oath or affirmation. Section 1, Rule 132 of the Rules of Court formalizes
this solution,viz:

Section 1. Examination to be done in open court. - The examination


of witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or
the question calls for a different mode of answer, the answers of the
witness shall be given orally. (1a)

The secondsolution is to require that all witnesses besubject to the cross-


examination by the adverse party. Section 6, Rule 132 of the Rules of
Courtensuresthis solutionthusly:

Section 6. Cross-examination; its purpose and extent. Upon the


termination of the direct examination, the witness may be cross-examined
by the adverse party as to any matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse,
and to elicit all important facts bearing upon the issue. (8a)

Although the second solution traces its existence to a Constitutional precept relevant
to criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which
guarantees that: In all criminal prosecutions, the accused shall xxx enjoy the right
xxx to meet the witnesses face to face xxx, the rule requiring the cross-examination
by the adverse party equally applies to non-criminal proceedings.

We thus stress that the rule excluding hearsay as evidence is based upon
serious concerns about the trustworthiness and reliability of hearsay evidence due to
its not being given under oath or solemn affirmation and due to its not being
subjected to cross-examination by the opposing counsel to test the perception,
memory, veracity and articulateness of the out-of-court declarant or actor upon
whose reliability the worth of the out-of-court statement depends.[27]

Based on the foregoing considerations, Guivencans testimony as well as


Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as proof
of petitioners misappropriation or conversion.

III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence
Petitioner also contends that the RTC grossly erred in admitting as evidence
Exhibits B to YY, and their derivatives, inclusive, despite their being private
documents that were not duly authenticated as required by Section 20, Rule 132 of
the Rules of Court.

Section 19, Rule 132 of the Rules of Courtdistinguishes between a public


document and a private document for the purpose of their presentation in
evidence, viz:

Section 19. Classes of documents. For the purpose of their


presentation in evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last


wills and testaments, and

(c) Public records, kept in the Philippines, of private documents


required by law to be entered therein.

All other writings are private.

The nature of documents as either public or private determines how the


documents may be presented as evidence in court. A public document, by virtue of
its official or sovereign character, or because it has been acknowledged before a
notary public (except a notarial will) or a competent public official with the
formalities required by law, or because it is a public record of a private writing
authorized by law, is self-authenticating and requires no further authentication in
order to be presented as evidence in court.In contrast, a private document is any other
writing, deed, or instrument executed by a private person without the intervention of
a notary or other person legally authorized by which some disposition or agreement
is proved or set forth. Lacking the official or sovereign character of a public
document, or the solemnities prescribed by law, a private document requires
authentication in the manner allowed by law or the Rules of Court before its
acceptance as evidence in court. The requirement of authentication of a private
document is excused only in four instances, specifically: (a) when the document is
an ancient one within the context of Section 21,[28] Rule 132 of the Rules of Court;
(b) when the genuineness and authenticity of an actionable document have not been
specifically denied under oath by the adverse party; [29](c) when thegenuineness and
authenticity of the document

have been admitted;[30] or (d) when the document is not being offered as genuine.[31]

There is no question that Exhibits B to YY and their derivatives were private


documents because private individuals executed or generated them for private or
business purposes or uses. Considering that none of the exhibits came under any of
the four exceptions, they could not be presented and admitted as evidence against
petitioner without the Prosecution dutifully seeing to their authentication in the
manner provided in Section20 of Rule 132 of the Rules of Court,viz:

Section 20. Proof of private documents. Before any private


document offered as authentic is received in evidence, its due execution
and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or


handwriting of the maker.

Any other private document need only be identified as that which it


is claimed to be.

The Prosecutionattempted to have Go authenticate the signature of petitioner


in various receipts, to wit:

ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the original
receipts, do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.
Q. But when asked to present those receipts before this Honorable Court, can you
assure this
(Next Page)

ATTY ABIERA (continuing):


Honorable Court that you will be able to present those receipts?
A. Yes.
Q. You are also familiar with the signature of the accused in this case, Anna
Lerima Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this case?
A. I used to see her signatures in the payroll and in the receipts also.
Q. Okay, I have here a machine copy of a receipt which we would present this,or
offer the same as soon as the original receipts can be presented, but for
purposes only of your testimony, Im going to point to you a certain
signature over this receipt number FLDT96 20441, a receipt from
Cirila Askin, kindly go over the signature and tell the Honorable
Court whether you are familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word collector.

(Next Page)

ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather, of the
accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the original
receipts Your Honor, because its quite voluminous, so we will just
forego with the testimony of the witness but we will just present the
same using the testimony of another witness, for purposes of
identifying the signature of the accused. We will request that this
signature which has been identified to by the witness in this case be
marked, Your Honor, with the reservation to present the original copy
and present the same to offer as our exhibits but for the meantime, this
is only for the purposes of recording, Your Honor, which we request the
same, the receipt which has just been identified awhile ago be marked
as our Exhibit A You Honor.
COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit A-1.

(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What is the number of that receipt?

ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila
Askin.[32]
xxx

As the excerpts indicate, Gos attempt at authentication of the signature of petitioner


on the receipt with serial number FLDT96 No. 20441 (a document that was marked
as Exhibit A, while the purported signature of petitioner thereon was marked as
Exhibit A-1) immediately fizzled out after the Prosecution admitted that the
document was a meremachinecopy, not the original. Thereafter, as if to soften its
failed attempt, the Prosecution expressly promised to produce at a later date the
originalsof the receipt with serial number FLDT96 No. 20441 and other receipts.
But that promise was not even true, because almost in the same breath the
Prosecution offered to authenticate the signature of petitioner on the
receiptsthrougha different witness (though then still unnamed). As matters turned
out in the end, the effort to have Go authenticate both themachinecopy of the
receiptwith serial number FLDT96 No. 20441 and the signature of petitioner on that
receipt was wasteful because the machine copy was inexplicablyforgotten and was
no longer evenincluded in the Prosecutions Offer of Documentary Evidence.

It is true that the original of the receipt bearing serial number FLDT96 No.
20441was subsequentlypresented as Exhibit Bthrough Guivencan. However,the
Prosecution did not establishthat the signature appearing on Exhibit B was the same
signature that Go had earliersought to identify to be the signature of petitioner
(Exhibit A-1) on the machine copy (Exhibit A). This is borne out by the fact that the
Prosecution abandoned Exhibit A as the marking nomenclature for the machine
copyof the receipt bearing serial number FLDT96 No. 20441 for all intents and
purposes of this case, and used the same nomenclature to referinstead toan entirely
differentdocument entitled List of Customers covered by ANA LERIMA PATULA
w/difference in Records as per Audit duly verified March 16-20, 1997.
In her case, Guivencans identification of petitioners signature on two receipts
based alone on the fact that the signatures contained the legible family name of
Patula was ineffectual, and exposed yet another deep flaw infecting the documentary
evidence against petitioner. Apparently, Guivencan could not honestly identify
petitioners signature on the receipts either because she lacked familiarity with such
signature, or because she had not seen petitioner affix her signature on the receipts,
as the following excerpts from her testimony bear out:

ATTY. ZERNA to witness:


Q. There are two (2) receipts attached here in the confirmation sheet,
will you go over these Miss witness?
A. This was the last payment which is fully paid by the customer. The
other receipt is the one showing her payment prior to the last
payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.
ATTY. ZERNA:
We pray, Your Honor, that this receipt identified be marked as Exhibit B-
3, receipt number 20441.

(Next Page)

COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as
Q. By the way, there is a signature above the name of the collector,
are your familiar with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and marked as Exhibit B-3-a
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as Exhibit B-4 and the
signature as Exhibit B-4-a.
COURT:
Mark it.[33]

xxx

ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to
one Divina Cadilig. Will you please identify this receipt if this
is the receipt of your office?
A.Yes.
Q.There is a signature over the portion for the collector. Whose signature
is this?
A.Ms. Patula.
Q.How do you know that this is her signature?
A.Because we can read the Patula.[34]

We also have similar impressions of lack of proper authentication as to the ledgers


the Prosecution presented to prove the discrepancies between the amountspetitioner
hadallegedly received from the customers and the amounts she had actually remitted
to Footluckers. Guivencanexclusively relied on the entries of the unauthenticated
ledgersto support her audit report on petitioners supposed misappropriation or
conversion, revealing her lack of independent knowledge of the veracity of the
entries, as the following excerpts of her testimony show:
ATTY. ZERNA to witness:
Q. What is your basis of saying that your office records showed that
this Cecilia Askin has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT:
Let the witness answer.
WITNESS:
A. I made the basis on our ledger in the office. I just copied that and
showed it to the customers for confirmation.

ATTY. ZERNA to witness:


Q. What about the receipts?
COURT:
Make a follow-up question and what was the result when you copied that
amount in the ledger and you had it confirmed by the customers,
what was the result when you had it confirmed by the
customers?
WITNESS:
A. She has no more balance but in our office she has still a balance
of P10,971.75.
ATTY. ZERNA to witness:
Q. Do you have a-whats the basis of saying that the balance of this
customer is still P10,971.75

(Next Page)

ATTY. ZERNA (continuing):


[i]n your office?
COURT:
That was already answered paero, the office has a ledger.
Q. Now, did you bring the ledger with you?
A. No, Maam.[35]

(Continuation of the Direct Examination of


Karen Guivencan on August 13, 2002)

ATTY. ZERNA to witness:


Q. Okay, You said there are discrepancies between the original and the
duplicate, will you please enlighten the Honorable Court on
that discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her
ledger shows a zero balance she has fully paid while in the
original

(Next page)

WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-
one Pesos and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded
to the Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance?
A. This is the copy of the customer while in the office, in the original
receipt she has still a balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---

COURT:
The confirmation sheet was the one you referred to as the receipt in your
earlier testimony? Is that what you referred to as the receipts,
the original receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which you said showed that that
particular customer still has a balance of Ten Thousand
something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the
ledger?

A. Yes.[36]

In the face of the palpable flaws infecting the Prosecutions evidence, it should come
as no surprise that petitioners counsel interposed timely objections. Yet, the RTC
mysteriously overruled the objections and allowedthe Prosecutionto present the
unauthenticated ledgers, as follows:

(Continuation of the Direct Examination of


Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA:

CONTINUATION OF DIRECT-EXAMINATION

Q Ms. Witness, last time around you were showing us several ledgers.
Where is it now?
A It is here.
Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much
is her account in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the
question, let me interpose our objection on the ground that
this ledger has not been duly identified to by the person who
made the same. This witness will be testifying on hearsay
matters because the supposed ledger was not identified to by
the person who made the same.
COURT:
Those ledgers were already presented in the last hearing. I think they were
already duly identified by this witness. As a matter of fact, it
was she who brought them to court

(Next Page)

COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ
That is correct, Your Honor, but the person who made the entries is not
this witness, Your Honor. How do we know that the entries
there is (sic) correct on the receipts submitted to their office.
COURT:
Precisely, she brought along the receipts also to support that. Let the
witness answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the
auditor of Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those entries
were taken. So, you answer the query of counsel.
xxx

ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing
objection to the questions profounded(sic) on those ledgers
on the ground that, as I have said, it is hearsay.

COURT:
Okey(sic). Let the continuing objection be noted.

Q (To Witness) The clerk who allegedly was the one who prepared the
entries on those ledgers, is she still connected with
Footluckers?

A She is no longer connected now, Your Honor,

COURT:
Alright proceed.

(Next Page)

ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So,
exempt from the hearsay rule.
COURT:
Okey(sic), proceed.[37]

The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions of the
rules earlier quoted, as well as withSection 22 of Rule 132 of the Rules of
Court,which contains instructions on how to prove the genuineness of a handwriting
in a judicial proceeding, as follows:

Section 22. How genuineness of handwriting proved. The


handwriting of a person may be proved by any witness who believes it to
be the handwriting of such person because he has seen the person write,
or has seen writing purporting to be his upon which the witness has
acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the
judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the
execution or signing of the documents,the Prosecution surely did not
authenticate Exhibits B to YY and their derivatives conformably with the
aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were
inescapably bereft of probative value as evidence. That was the onlyfair and just
result, as the Court held in Malayan Insurance Co., Inc. v. Philippine Nails and
Wires Corporation:[38]

On the first issue, petitioner Malayan Insurance Co., Inc.,


contends that Jeanne Kings testimony was hearsay because she had
no personal knowledge of the execution of the documents supporting
respondents cause of action, such as the sales contract, invoice, packing
list, bill of lading, SGS Report, and the Marine Cargo Policy. Petitioner
avers that even though King was personally assigned to handle and
monitor the importation of Philippine Nails and Wires Corporation, herein
respondent, this cannot be equated with personal knowledge of the facts
which gave rise to respondents cause of action. Further, petitioner asserts,
even though she personally prepared the summary of weight of steel billets
received by respondent, she did not have personal knowledge of the
weight of steel billets actually shipped and delivered.

At the outset, we must stress that respondents cause of action is


founded on breach of insurance contract covering cargo consisting of
imported steel billets. To hold petitioner liable, respondent has to prove,
first, its importation of 10,053.400 metric tons of steel billets valued
at P67,156,300.00, and second, the actual steel billets delivered to and
received by the importer, namely the respondent. Witness Jeanne King,
who was assigned to handle respondents importations, including their
insurance coverage, has personal knowledge of the volume of steel billets
being imported, and therefore competent to testify thereon. Her testimony
is not hearsay, as this doctrine is defined in Section 36, Rule 130 of the
Rules of Court.However, she is not qualified to testify on the shortage
in the delivery of the imported steel billets. She did not have personal
knowledge of the actual steel billets received. Even though she
prepared the summary of the received steel billets, she based the
summary only on the receipts prepared by other persons. Her
testimony on steel billets received was hearsay. It has no probative
value even if not objected to at the trial.
On the second issue, petitioner avers that King failed to properly
authenticate respondents documentary evidence. Under Section 20, Rule
132, Rules of Court, before a private document is admitted in
evidence, it must be authenticated either by the person who executed
it, the person before whom its execution was acknowledged, any
person who was present and saw it executed, or who after its
execution, saw it and recognized the signatures, or the person to
whom the parties to the instruments had previously confessed
execution thereof. In this case, respondent admits that King was none
of the aforementioned persons. She merely made the summary of the
weight of steel billets based on the unauthenticated bill of lading and
the SGS report. Thus, the summary of steel billets actually received
had no proven real basis, and Kings testimony on this point could not
be taken at face value.

xxx Under the rules on evidence, documents are either public or


private. Private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court.Section 20of
the same law, in turn, provides that before any private document is
received in evidence, its due execution and authenticity must be proved
either by anyone who saw the document executed or written, or
by evidence of the genuineness of the signature or handwriting of the
maker. Here, respondents documentary exhibits are private
documents. They are not among those enumerated in Section 19, thus,
their due execution and authenticity need to be proved before they
can be admitted in evidence.With the exception concerning the
summary of the weight of the steel billets imported, respondent
presented no supporting evidence concerning their authenticity.
Consequently, they cannot be utilized to prove less of the insured
cargo and/or the short delivery of the imported steel billets. In sum,
we find no sufficient competent evidence to prove petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner


decided not to subject Guivencan to cross-examination, and did not tender her
contrary evidencewas inconsequential. Although the trial court had overruled the
seasonable objections to Guivencans testimony bypetitioners counsel due to the
hearsay character, it could not be denied thathearsay evidence, whether objected to
or not, had no probative value.[39]Verily, the flaws of the Prosecutions evidence were
fundamental and substantive, not merely technical and procedural, and were defects
that the adverse partys waiver of her cross-examination or failure to rebutcould not
set right or cure. Nor did the trial courts overruling of petitioners objections imbue
the flawed evidence with any virtue and value.

Curiously, the RTC excepted the entries in the ledgers from the application of
the hearsay rule by also terselystating that the ledgers were prepared in the regular
course of business.[40]Seemingly, the RTC applied Section 43, Rule 130 of the Rules
of Court, to wit:

Section 43. Entries in the course of business. Entries made at, or near the time
of the transactions to which they refer, by a person deceased, or unable to testify,
who was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of business or duty.

This was another grave error of the RTC.The terse yet sweeping mannerof
justifying the application of Section 43 was unacceptable due to the need to show
the concurrence of the several requisites before entries in the course of business
could be excepted from the hearsay rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;

(b) The entries were made at or near the time of the transactions to
which they refer;

(c) The entrant was in a position to know the facts stated in the entries;

(d) The entries were made in his professional capacity or in the


performance of a duty, whether legal, contractual, moral, or
religious;

(e) The entries were made in the ordinary or regular course of business
or duty.[41]

The Court has to acquit petitioner for failure of the State to establish her guilt
beyond reasonable doubt. The Court reiterates that in the trial of every criminal case,
a judge must rigidly test the States evidence of guilt in order to ensure that such
evidence adhered to the basic rules of admissibility before pronouncing an accused
guilty of the crime charged upon such evidence. The failure of the judge to do so
herein nullified the guarantee of due of process of law in favor of the accused, who
had no obligation to prove her innocence. Heracquittal should follow.

IV
No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares
that the disposition by the RTC ordering petitioner to indemnify Footluckers in the
amount of P131,286.92 with interest of 12% per annum until fully paid was not yet
shown to be factually founded. Yet, she cannot now be absolved of civil liability on
that basis. Heracquittal has to bedeclared as without prejudice to the filing of a civil
action against her for the recovery of any amount that she may still owe to
Footluckers.

WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision


convicting ANNA LERIMA PATULAof estafa as charged, and ACQUITS her
for failure of the Prosecution to prove her guilt beyond reasonable doubt, without
prejudice to a civil action brought against her for

the recoveryof any amount still owing in favor of Footluckers Chain of Stores, Inc.

No pronouncement on costs of suit.

SO ORDERED.
ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor,
represented by his mother ARMI A. ALBA, and HON. NIMFA
CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial
Court, Manila, respondents.

DECISION
CARPIO, J.:

The Case

This is a petition for review to set aside the Decision dated 29 November
[1] [2]

2000 of the Court of Appeals (appellate court) in CA-G.R. SP No. 59766. The
appellate court affirmed two Orders issued by Branch 48 of the Regional Trial
[3]

Court of Manila (trial court) in SP No. 98-88759. The Order dated 3 February
2000 directed Rosendo Herrera (petitioner) to submit to deoxyribonucleic acid
(DNA) paternity testing, while the Order dated 8 June 2000 denied petitioners
motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent),


represented by his mother Armi Alba, filed before the trial court a petition for
compulsory recognition, support and damages against petitioner. On 7 August
1998, petitioner filed his answer with counterclaim where he denied that he is
the biological father of respondent. Petitioner also denied physical contact with
respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to
abbreviate the proceedings. To support the motion, respondent presented the
testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an
Associate Professor at De La Salle University where she taught Cell Biology.
She was also head of the University of the Philippines Natural Sciences
Research Institute (UP-NSRI), a DNA analysis laboratory. She was a former
professor at the University of the Philippines in Diliman, Quezon City, where
she developed the Molecular Biology Program and taught Molecular Biology. In
her testimony, Dr. Halos described the process for DNA paternity testing and
asserted that the test had an accuracy rate of 99.9999% in establishing
paternity.[4]
Petitioner opposed DNA paternity testing and contended that it has not
gained acceptability. Petitioner further argued that DNA paternity testing
violates his right against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondents


motion to conduct DNA paternity testing on petitioner, respondent and Armi
Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the
petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of
their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results
thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing
set on 24 February 2000 for the reception of other evidence in support of the petition.
IT IS SO ORDERED.[5] (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February 2000 Order.


He asserted that under the present circumstances, the DNA test [he] is
compelled to take would be inconclusive, irrelevant and the coercive process to
obtain the requisite specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied petitioners motion for
reconsideration. [6]

On 18 July 2000, petitioner filed before the appellate court a petition


for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted
that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000
in excess of, or without jurisdiction and/or with grave abuse of discretion
amounting to lack or excess of jurisdiction. Petitioner further contended that
there is no appeal nor any [other] plain, adequate and speedy remedy in the
ordinary course of law. Petitioner maintained his previous objections to the
taking of DNA paternity testing. He submitted the following grounds to support
his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions
precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the
reliability of the test as admitted by private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings
and conclusions unfit for judicial notice and unsupported by experts in the field and scientific
treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be
inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the
petitioner, unconstitutional.[7]
The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the


petition and affirming the questioned Orders of the trial court. The appellate
court stated that petitioner merely desires to correct the trial courts evaluation
of evidence. Thus, appeal is an available remedy for an error of judgment that
the court may commit in the exercise of its jurisdiction. The appellate court also
stated that the proposed DNA paternity testing does not violate his right against
self-incrimination because the right applies only to testimonial compulsion.
Finally, the appellate court pointed out that petitioner can still refute a possible
adverse result of the DNA paternity testing. The dispositive portion of the
appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered
dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]

Petitioner moved for reconsideration, which the appellate court denied in its
Resolution dated 23 May 2001. [9]

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in
this jurisdiction to determine filiation. Petitioner asks for the conditions under
which DNA technology may be integrated into our judicial system and the
prerequisites for the admissibility of DNA test results in a paternity suit. [10]

Petitioner further submits that the appellate court gravely abused its
discretion when it authorized the trial court to embark in [sic] a new procedure
xxx to determine filiation despite the absence of legislation to ensure its
reliability and integrity, want of official recognition as made clear in Lim vs. Court
of Appeals and the presence of technical and legal constraints in respect of [sic]
its implementation. Petitioner maintains that the proposed DNA paternity
[11]

testing violates his right against self-incrimination. [12]

The Ruling of the Court

The petition has no merit.


Before discussing the issues on DNA paternity testing, we deem it
appropriate to give an overview of a paternity suit and apply it to the facts of this
case. We shall consider the requirements of the Family Code and of the Rules
of Evidence to establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate paternity but also
to secure a legal right associated with paternity, such as citizenship, support
[13]

(as in the present case), or inheritance. The burden of proving paternity is on


the person who alleges that the putative father is the biological father of the
child. There are four significant procedural aspects of a traditional paternity
action which parties have to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance between the putative
father and child. [14]

A prima facie case exists if a woman declares that she had sexual relations
with the putative father. In our jurisdiction, corroborative proof is required to
carry the burden forward and shift it to the putative father. [15]

There are two affirmative defenses available to the putative father. The
putative father may show incapability of sexual relations with the mother,
because of either physical absence or impotency. The putative father may
[16]

also show that the mother had sexual relations with other men at the time of
conception.
A child born to a husband and wife during a valid marriage is presumed
legitimate. The childs legitimacy may be impugned only under the strict
[17]

standards provided by law. [18]

Finally, physical resemblance between the putative father and child may be
offered as part of evidence of paternity. Resemblance is a trial technique unique
to a paternity proceeding. However, although likeness is a function of heredity,
there is no mathematical formula that could quantify how much a child must or
must not look like his biological father. This kind of evidence appeals to the
[19]

emotions of the trier of fact.


In the present case, the trial court encountered three of the four aspects.
Armi Alba, respondents mother, put forward a prima facie case when she
asserted that petitioner is respondents biological father. Aware that her
assertion is not enough to convince the trial court, she offered corroborative
proof in the form of letters and pictures. Petitioner, on the other hand, denied
Armi Albas assertion. He denied ever having sexual relations with Armi Alba
and stated that respondent is Armi Albas child with another man. Armi Alba
countered petitioners denial by submitting pictures of respondent and petitioner
side by side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We
now look to the law, rules, and governing jurisprudence to help us determine
what evidence of incriminating acts on paternity and filiation are allowed in this
jurisdiction.

Laws, Rules, and Jurisprudence


Establishing Filiation

The relevant provisions of the Family Code provide as follows:


ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant


sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify,
in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred, and the names of the relatives.
It embraces also facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may
be received as evidence of pedigree.

This Courts rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites,
[20]

we stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a
parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must be
made by the putative father himself and the writing must be the writing of the
putative father. A notarial agreement to support a child whose filiation is
[21]

admitted by the putative father was considered acceptable evidence. Letters


[22]

to the mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate of
live birth, proved filiation. However, a student permanent record, a written
[23]

consent to a fathers operation, or a marriage contract where the putative father


gave consent, cannot be taken as authentic writing. Standing alone, neither a
[24]

certificate of baptism nor family pictures are sufficient to establish filiation.


[25] [26]

So far, the laws, rules, and jurisprudence seemingly limit evidence of


paternity and filiation to incriminating acts alone. However, advances in science
show that sources of evidence of paternity and filiation need not be limited to
incriminating acts. There is now almost universal scientific agreement that blood
grouping tests are conclusive on non-paternity, although inconclusive on
paternity.
[27]

In Co Tao v. Court of Appeals, the result of the blood grouping test


[28]

showed that the putative father was a possible father of the child. Paternity was
imputed to the putative father after the possibility of paternity was proven on
presentation during trial of facts and circumstances other than the results of the
blood grouping test.
In Jao v. Court of Appeals, the child, the mother, and the putative father
[29]

agreed to submit themselves to a blood grouping test. The National Bureau of


Investigation (NBI) conducted the test, which indicated that the child could not
have been the possible offspring of the mother and the putative father. We held
that the result of the blood grouping test was conclusive on the non-paternity of
the putative father.
The present case asks us to go one step further. We are now asked whether
DNA analysis may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a persons entire genetic make-up.


DNA is found in all human cells and is the same in every cell of the same
person. Genetic identity is unique. Hence, a persons DNA profile can determine
his identity. [30]

DNA analysis is a procedure in which DNA extracted from a biological


sample obtained from an individual is examined. The DNA is processed to
generate a pattern, or a DNA profile, for the individual from whom the sample
is taken. This DNA profile is unique for each person, except for identical
twins. We quote relevant portions of the trial courts 3 February 2000 Order
[31]

with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an
individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals
blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs,
saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine)
and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her
physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a
person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They
are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or
analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means
determining the polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed
to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP
(restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287
cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR
(variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain
reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million
times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the
other hand, takes measurements in 13 separate places and can match two (2) samples with a reported
theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or
fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene
is compared with the known print. If a substantial amount of the identifying features are the same, the DNA
or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint
is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a
person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs
DNA was inherited from the mother. The other half must have been inherited from the biological father. The
alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the mans DNA types do not match that of the child, the man
is excluded as the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the
original)

Although the term DNA testing was mentioned in the 1995 case of People
v. Teehankee, Jr., it was only in the 2001 case of Tijing v. Court of
[33]

Appeals that more than a passing mention was given to DNA analysis.
[34]

In Tijing, we issued a writ of habeas corpus against respondent who abducted


petitioners youngest son. Testimonial and documentary evidence and physical
resemblance were used to establish parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis.
xxx For it was said, that courts should apply the results of science when completely obtained in aid of
situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to
resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of
parentage and identity issues.
Admissibility of
DNA Analysis as Evidence

The 2002 case of People v. Vallejo discussed DNA analysis as evidence.


[35]

This may be considered a 180 degree turn from the Courts wary attitude
towards DNA testing in the 1997 Pe Lim case, where we stated that DNA,[36]

being a relatively new science, xxx has not yet been accorded official
recognition by our courts. In Vallejo, the DNA profile from the vaginal swabs
taken from the rape victim matched the accuseds DNA profile. We affirmed the
accuseds conviction of rape with homicide and sentenced him to death. We
declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[37]

Vallejo discussed the probative value, not admissibility, of DNA evidence.


By 2002, there was no longer any question on the validity of the use of DNA
analysis as evidence. The Court moved from the issue of according official
recognition to DNA analysis as evidence to the issue of observance of
procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on
jurisprudence on DNA testing: People v. Yatar and In re: The Writ of Habeas
[38]

Corpus for Reynaldo de Villa. In Yatar, a match existed between the DNA
[39]

profile of the semen found in the victim and the DNA profile of the blood sample
given by appellant in open court. The Court, following Vallejosfootsteps,
affirmed the conviction of appellant because the physical evidence,
corroborated by circumstantial evidence, showed appellant guilty of rape with
homicide. In De Villa, the convict-petitioner presented DNA test results to prove
that he is not the father of the child conceived at the time of commission of the
rape. The Court ruled that a difference between the DNA profile of the convict-
petitioner and the DNA profile of the victims child does not preclude the convict-
petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent
refer to two United States cases to support their respective positions on the
admissibility of DNA analysis as evidence: Frye v. U.S. and Daubert v. [40]

Merrell Dow Pharmaceuticals. In Frye v. U.S., the trial court convicted Frye
[41]

of murder. Frye appealed his conviction to the Supreme Court of the District of
Columbia. During trial, Fryes counsel offered an expert witness to testify on the
result of a systolic blood pressure deception test made on defendant. The [42]

state Supreme Court affirmed Fryes conviction and ruled that the systolic blood
pressure deception test has not yet gained such standing and scientific
recognition among physiological and psychological authorities as would justify
the courts in admitting expert testimony deduced from the discovery,
development, and experiments thus far made. The Frye standard of general
acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be
recognized, and while courts will go a long way in admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs.

In 1989, State v. Schwartz modified the Frye standard. Schwartz was


[43]

charged with stabbing and murder. Bloodstained articles and blood samples of
the accused and the victim were submitted for DNA testing to a government
facility and a private facility. The prosecution introduced the private testing
facilitys results over Schwartzs objection. One of the issues brought before the
state Supreme Court included the admissibility of DNA test results in a criminal
proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys
compliance with appropriate standards and controls, and the availability of their testing data and results. [44]

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. further modified [45]

the Frye-Schwartz standard. Daubert was a product liability case where both
the trial and appellate courts denied the admissibility of an experts testimony
because it failed to meet the Frye standard of general acceptance. The United
States Supreme Court ruled that in federal trials, the Federal Rules of Evidence
have superseded the Frye standard. Rule 401 defines relevant evidence, while
Rule 402 provides the foundation for admissibility of evidence. Thus:
Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would be without
the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.

Rule 702 of the Federal Rules of Evidence governing expert testimony


provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of general


acceptance does not mean that the Federal Rules do not place limits on the
admissibility of scientific evidence. Rather, the judge must ensure that the
testimonys reasoning or method is scientifically valid and is relevant to the
issue. Admissibility would depend on factors such as (1) whether the theory or
technique can be or has been tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known or potential rate
of error; (4) the existence and maintenance of standards controlling the
techniques operation; and (5) whether the theory or technique is generally
accepted in the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael, further [46]

modified the Daubert standard. This led to the amendment of Rule 702 in 2000
and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.

We now determine the applicability in this jurisdiction of these American


cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-
Kumho standard is controlling in the Philippines. At best, American [47]

jurisprudence merely has a persuasive effect on our decisions. Here, evidence


is admissible when it is relevant to the fact in issue and is not otherwise
excluded by statute or the Rules of Court. Evidence is relevant when it has
[48]

such a relation to the fact in issue as to induce belief in its existence or non-
existence. Section 49 of Rule 130, which governs the admissibility of expert
[49]

testimony, provides as follows:


The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is
shown to possess may be received in evidence.

This Rule does not pose any legal obstacle to the admissibility of DNA analysis
as evidence. Indeed, even evidence on collateral matters is allowed when it
tends in any reasonable degree to establish the probability or improbability of
the fact in issue. [50]

Indeed, it would have been convenient to merely refer petitioner to our


decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is
admissible as evidence. In our jurisdiction, the restrictive tests for admissibility
established by Frye-Schwartz and Daubert-Kumho go into the weight of the
evidence.

Probative Value of
DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be


cautious in giving credence to DNA analysis as evidence. We reiterate our
statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the
following data: how the samples were collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[51]

We also repeat the trial courts explanation of DNA analysis used in paternity
cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine
which half of the childs DNA was inherited from the mother. The other half must have been inherited from
the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types
in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the
child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52]

It is not enough to state that the childs DNA profile matches that of the putative
father. A complete match between the DNA profile of the child and the DNA
profile of the putative father does not necessarily establish paternity. For this
reason, following the highest standard adopted in an American
jurisdiction, trial courts should require at least 99.9% as a minimum value of
[53]

the Probability of Paternity (W) prior to a paternity inclusion. W is a numerical


estimate for the likelihood of paternity of a putative father compared to the
probability of a random match of two unrelated individuals. An appropriate
reference population database, such as the Philippine population database, is
required to compute for W. Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%. However, the accuracy of W estimates
is higher when the putative father, mother and child are subjected to DNA
analysis compared to those conducted between the putative father and child
alone. [54]

DNA analysis that excludes the putative father from paternity should be
conclusive proof of non-paternity. If the value of W is less than 99.9%, the
results of the DNA analysis should be considered as corroborative evidence. If
the value of W is 99.9% or higher, then there is refutable presumption of
paternity. This refutable presumption of paternity should be subjected to
[55]

the Vallejo standards.

Right Against
Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that no person shall
be compelled to be a witness against himself. Petitioner asserts that obtaining
samples from him for DNA testing violates his right against self-incrimination.
Petitioner ignores our earlier pronouncements that the privilege is applicable
only to testimonial evidence. Again, we quote relevant portions of the trial courts
3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case,
contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This
privilege applies only to evidence that is communicative in essence taken under duress (People vs. Olvis, 154
SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition
on the use of physical or moral compulsion to extort communication (testimonial evidence) from a
defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant
can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the
substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs.
Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36
Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs.
Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test
(Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on testimonial
compulsion.[56]

The policy of the Family Code to liberalize the rule on the investigation of
the paternity and filiation of children, especially of illegitimate children, is without
prejudice to the right of the putative parent to claim his or her own
defenses. Where the evidence to aid this investigation is obtainable through
[57]

the facilities of modern science and technology, such evidence should be


considered subject to the limits established by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the
Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also
AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch
48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
PHILIP S. YU, G.R. No. 154115
Petitioner,
Present:

PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
HON. COURT OF APPEALS,
Second Division, and VIVECA
LIM YU, Promulgated:
Respondents.
November 29, 2005

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

DECISION

TINGA, J.:

This treats of the petition for review on certiorari of the Court of


Appeals Decision and Resolution in CA G.R. SP No. 66252 dated 30
April 2002[1]and 27 June 2002,[2] respectively, which set aside
the Order of the Regional Trial Court (RTC) of Pasig City[3] dated 10
May 2001, declaring an application for insurance and an insurance
policy as inadmissible evidence.

The facts of the case are undisputed.

On 15 March 1994, Viveca Lim Yu (private respondent) brought


against her husband, Philip Sy Yu (petitioner), an action for legal
separation and dissolution of conjugal partnership on the grounds of
marital infidelity and physical abuse. The case was filed before the
RTC of Pasig and raffled to Branch 158, presided by Judge Jose R.
Hernandez.

During trial, private respondent moved for the issuance of


a subpoena duces tecum and ad testificandum[4] to certain officers of
Insular Life Assurance Co. Ltd. to compel production of the insurance
policy and application of a person suspected to be petitioners
illegitimate child.[5] The trial court denied the motion.[6] It ruled that
the insurance contract is inadmissible evidence in view of Circular
Letter No. 11-2000, issued by the Insurance Commission which
presumably prevents insurance companies/agents from divulging
confidential and privileged information pertaining to insurance
policies.[7] It added that the production of the application and
insurance contract would violate Article 280[8] of the Civil Code and
Section 5 of the Civil Registry Law,[9] both of which prohibit the
unauthorized identification of the parents of an illegitimate
child.[10]Private respondent sought reconsideration of the Order, but
the motion was denied by the trial court.[11]

Aggrieved, private respondent filed a petition for certiorari before the


Court of Appeals, imputing grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of Judge Hernandez in
issuing the 10 May 2001 Order.[12] The Court of Appeals summarized
the issues as follows: (i) whether or not an insurance policy and its
corresponding application form can be admitted as evidence to prove
a partys extra-marital affairs in an action for legal separation; and (ii)
whether or not a trial court has the discretion to deny a partys motion
to attach excluded evidence to the record under Section 40, Rule 132
of the Rules of Court.[13]

According to the Court of Appeals, private respondent was merely


seeking the production of the insurance application and contract,
and was not yet offering the same as part of her evidence. Thus, it
declared that petitioners objection to the admission of the documents
was premature, and the trial courts pronouncement that the
documents are inadmissible, precipitate.[14] The contents of the
insurance application and insurance documents cannot be
considered as privileged information, the Court of Appeals added, in
view of the opinion of the Insurance Commissioner dated 4 April 2001
to the effect that Circular Letter No.11-2000 was never intended to
be a legal impediment in complying with lawful orders.[15]Lastly, the
Court of Appeals ruled that a trial court does not have the discretion
to deny a partys privilege to tender excluded evidence, as this
privilege allows said party to raise on appeal the exclusion of such
evidence.[16] Petitioner filed a motion for reconsideration but to no
avail.
In the present petition, petitioner argues that the Court of Appeals
blundered in delving into errors of judgment supposedly committed
by the trial court as if the petition filed therein was an ordinary
appeal and not a special civil action. Further, he claims that the
Court of Appeals failed to show any specific instance of grave abuse
of discretion on the part of the trial court in issuing the
assailed Order. Additionally, he posits that private respondent had
already mooted her petition before the Court of Appeals when she
filed her formal offer of rebuttal exhibits, with tender of excluded
evidence before the trial court.[17]
For her part, private respondent maintains that the details
surrounding the insurance policy are crucial to the issue of
petitioners infidelity and his financial capacity to provide support to
her and their children. Further, she argues that she had no choice
but to make a tender of excluded evidence considering that she was
left to speculate on what the insurance application and policy ruled
out by the trial court would contain.[18]

A petition for certiorari under Rule 65 is the proper remedy to correct


errors of jurisdiction and grave abuse of discretion tantamount to
lack or excess of jurisdiction committed by a lower court.[19] Where a
respondent does not have the legal power to determine the case and
yet he does so, he acts without jurisdiction; where, being clothed with
power to determine the case, oversteps his authority as determined
by law, he is performing a function in excess of jurisdiction.[20]
Petitioner claims that the Court of Appeals passed upon errors of
judgment, not errors of jurisdiction, since it delved into the propriety
of the denial of the subpoena duces tecum and subpoena ad
testificandum. The argument must fail.

While trial courts have the discretion to admit or exclude


evidence, such power is exercised only when the evidence has been
formally offered.[21] For a long time, the Court has recognized that
during the early stages of the development of proof, it is impossible
for a trial court judge to know with certainty whether evidence is
relevant or not, and thus the practice of excluding evidence on
doubtful objections to its materiality should be avoided.[22] As well
elucidated in the case of Prats & Co. v. Phoenix Insurance Co.:[23]

Moreover, it must be remembered that in the heat of


the battle over which he presides a judge of first instance
may possibly fall into error in judging of the relevancy of
proof where a fair and logical connection is in fact shown.
When such a mistake is made and the proof is erroneously
ruled out, the Supreme Court, upon appeal, often finds itself
embarrassed and possibly unable to correct the effects of the
error without returning the case for a new trial, a step which
this court is always very loath to take. On the other hand,
the admission of proof in a court of first instance, even if the
question as to its form, materiality, or relevancy is doubtful,
can never result in much harm to either litigant, because the
trial judge is supposed to know the law; and it is its duty,
upon final consideration of the case, to distinguish the
relevant and material from the irrelevant and immaterial. If
this course is followed and the cause is prosecuted to the
Supreme Court upon appeal, this court then has all the
material before it necessary to make a correct judgment.

In the instant case, the insurance application and the insurance


policy were yet to be presented in court, much less formally offered
before it. In fact, private respondent was merely asking for the
issuance of subpoena duces tecum and subpoena ad
testificandum when the trial court issued the assailed Order. Even
assuming that the documents would eventually be declared
inadmissible, the trial court was not then in a position to make a
declaration to that effect at that point. Thus, it barred the production
of the subject documents prior to the assessment of its probable
worth. As observed by petitioners, the assailed Order was not a mere
ruling on the admissibility of evidence; it was, more importantly, a
ruling affecting the proper conduct of trial.[24]

Excess of jurisdiction refers to any act which although falling


within the general powers of the judge is not authorized and is
consequently void with respect to the particular case because the
conditions under which he was only authorized to exercise his
general power in that case did not exist and therefore, the judicial
power was not legally exercised.[25] Thus, in declaring that the
documents are irrelevant and inadmissible even before they were
formally offered, much less presented before it, the trial court acted
in excess of its discretion.

Anent the issue of whether the information contained in the


documents is privileged in nature, the same was clarified and settled
by the Insurance Commissioners opinion that the circular on which
the trial court based its ruling was not designed to obstruct lawful
court orders.[26]Hence, there is no more impediment to presenting the
insurance application and policy.

Petitioner additionally claims that by virtue of private respondents


tender of excluded evidence, she has rendered moot her petition
before the Court of Appeals since the move evinced that she had
another speedy and adequate remedy under the law. The Court holds
otherwise.

Section 40, Rule 132 provides:

Sec.40. Tender of excluded evidence.If documents or things


offered in evidence are excluded by the court, the offeror may
have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record
the name and other personal circumstances of the witness
and the substance of the proposed testimony.

It is thus apparent that before tender of excluded evidence is


made, the evidence must have been formally offered before the court.
And before formal offer of evidence is made, the evidence must have
been identified and presented before the court. While private
respondent made a Tender of Excluded Evidence, such is not the
tender contemplated by the above-quoted rule, for obviously, the
insurance policy and application were not formally offered much less
presented before the trial court. At most, said Tender of Excluded
Evidence was a

manifestation of an undisputed fact that the subject documents were


declared inadmissible by the trial court even before these were
presented during trial. It was not the kind of plain, speedy and
adequate remedy which private respondent could have resorted to
instead of the petition for certiorari she filed before the Court of
Appeals. It did not in any way render the said petition moot.

WHEREFORE, premises considered, the petition is DENIED.


The Decision dated 30 April 2002 and Resolution dated 27 June 2002
are AFFIRMED. Costs against petitioner.

SO ORDERED.